The court are of the opinion that the exception to the discharge of the trustee must be overruled. The loss under the policy was settled before any notice was received by the company of any lien or claim thereon. And it does not appear that it was done to avoid notice, or with any improper motive whatever. The mortgagee could have secured his right, by filing the notice, prescribed by statute at any time before the settlement took place; but failed to do so. Be sure, by B. S., c. 49, § 33, the mortgagee had sixty days after a loss to enforce his lien by suit. But that implies that he has a lien. By § 32, same chapter, his lien takes effect from the time he filed his notice with the company. Till that is done he can have no lien. When that was done in this case, there was no subsisting policy to take effect upon. It had been settled, and was functus officio. Any other construction would impose unreasonable burdens on insurers and the insured, without any corresponding advantages to other parties.
Exceptions overruled.