| R.I. | Mar 6, 1869
DECREE.
This cause came on to be heard at the November term of this court, 1862. * * * * And, upon consideration thereof, it is ordered, adjudged and decreed as follows: —
That the mortgage deeds made and executed by said defendant, Louis J. Doyle, to said complainants, Haynes Lord, John D. Warren, Joshua D. Evans and Joel D. Stebbens, copartners under the style of Lord, Warren, Evans Co., bearing date the 21st and 22d days of August, 1856, respectively, are valid and subsisting liens upon the estate therein described, to the extent following, only, namely, that the same shall be a lien upon so much of, and that interest in said estate, which was conveyed by said Doyle to Walter W. Updike, by the deed of said Doyle to said Updike, dated the 27th day of September, A.D. 1856, in the pleadings referred to.
And it is further ordered, adjudged and decreed, that at the date of said deed in the pleadings mentioned, made and executed by said Doyle to said William W. Bishop, bearing date the 27th day of September, A.D. 1856, the said Bishop did not have notice of the existence of the two aforesaid mortgages made and executed by said Doyle to said complainants, dated *211 respectively on the 21st and 22d days of August, A.D. 1856; and that said last mentioned mortgages do not constitute any lien or encumbrance on the estate and property conveyed by said Doyle to said Bishop, in and by his the said deed of said Doyle to said Bishop, dated the 27th day of September, 1856, in and upon any portion of the same.
And it is further ordered, adjudged and decreed by the court, that the said defendant, William W. Bishop, at the time of taking the mortgage to him from said Doyle in the pleadings mentioned, dated the 21st day of October, 1856, did not have notice of the two aforesaid mortgages from said Doyle to said complainants, dated August 21st and 22d, A.D. 1856; and that said mortgage from said Doyle to said Bishop, dated October 21st, 1856, constitutes a new lien upon the estate and property described, and takes precedence as such, to the said mortgages as made by said Doyle to said complainants, dated August 21st and 22d, 1856.
And it is further ordered, adjudged and decreed, that at the date of the deed in said pleadings mentioned, from said Doyle to said William W. Bishop, bearing date the 6th day of November, A.D. 1856, said Bishop did have notice of said two mortgages from said Doyle to said complainants, dated August 21st and 22d, 1856; and that said last mentioned two mortgages constitute a valid lien on said estate conveyed to said Bishop by said Doyle, by said deed, dated November 6th, 1856, subject, however, to said mortgages thereon, from said Doyle to said Bishop, dated October 21st, 1856.
And it is further adjudged, that the Rhode Island Bleach and Cambric Works, at the date of the deed from said Doyle to them, bearing date the 27th day of October, 1856, had actual notice of the two mortgages from said Doyle to said complainants, bearing date the 21st and 22d days of August, 1856, in said pleadings mentioned.
* * * * * * *
Entered as the decree of this court, per order thereof, this 22d day of November, A.D. 1864.
(Signed,) HENRY PITMAN, Clerk. *212 On the 30th of July, 1859, the plaintiff, being interested in the manufacturing estate of the Touro Manufacturing Company, so called, in Newport, R.I., as the transferee of two mortgages thereon, given by L. J. Doyle to Lord, Warren, Evans Co., and dated, the one August 21st, and the other, August 22d, 1856, procured from the defendant companies an insurance of his interest to the amount of $15,000, being $3,000 in each company. Each of the policies states that the said mortgages are subject to a prior mortgage on said estate for twenty thousand dollars, or about that sum, and in case of loss the amount of this policy is to be paid to said Caleb F. Harris whenever and as soon as his lien upon said property, by virtue of said mortgage, is established by decree of court or otherwise. This provision in regard to payment appears to have been inserted because, at the time the insurance was effected, the extent of the plaintiff's interest under the mortgages transferred to him, was in question; for the reason that after those mortgages were made, and before they were recorded, certain conveyances and mortgages had been made to other parties, thus complicating the title. The fire occurred, during the continuance of the policy, December 31, 1859, and afterwards, in 1864, the extent of the plaintiff's lien under the mortgages transferred to him, was established by a decree of the Circuit Court. The priorities *215 of the parties interested in the property, as ascertained or admitted, in so far as we need state them, appear to have been as follows, to wit.: —
1. The Coddington Manufacturing Co. held a mortgage for $20,000, being the prior mortgage mentioned in the policies, which covered the whole estate, subject to this mortgage.
2. W.W. Bishop was the owner in fee of one undivided third.
3. W.W. Bishop held a mortgage for one other undivided third.
4. The plaintiff held a lien by his mortgages upon all the residue.
The property on which the mortgages were made was worth not less than $65,000 at the time of the fire. Since then, the Coddington Manufacturing Company have sold the land and ruins under their mortgage and discharged their mortgage with the proceeds, and have paid over one third of what was left of the proceeds, to wit., $1,059.77, to the plaintiff, March 9th, 1866. The debt covered by the mortgages transferred to the plaintiffs was, at the date of the policies, $15,551.03.
These actions were brought in the Supreme Court, at the October term thereof, 1865.
1. The defendants contend that the plaintiff is not entitled to recover, because the policies, by their terms, are not payable until the plaintiff's lien is established "upon said property," which, they contend, means the whole property, whereas the lien decreed is only a lien upon two-thirds, subject to such priorities as practically reduces it to a lien on one-third. We do not think this is the fair construction of the policies. A lien upon two undivided thirds, or one undivided third, of a given estate or property, is, in our opinion, a lien upon said property. The lien, being upon an undivided interest, charges the whole property to the extent of that interest, which subsists as an undivided part of every particle of the property. And this construction accords with the obvious design of the policies; for if, as we presume, they were designed as security against loss by fire, the plaintiff would desire to have them hold, whether *216 his mortgages were a charge upon one undivided third or uponthree undivided thirds; for the risk, except perhaps in the value of the interest exposed, would be the same in either case.
2. The plaintiff can recover only the amount of his loss by the fire, and of course nothing was lost by the fire which remained to be sold after the fire. Out of what was sold the plaintiff received $1,059.77, and this, therefore, if it was his proper proportion of what remained, should be deducted from the value of his interest in the property to ascertain his loss. If, at the time the fire occurred, the value of his interest was $15,000, then $15,000 — 1,059.77 = 13,940.23 was his loss by the fire, and consequently the amount which the defendant companies ought to pay him under their policies. The question chiefly argued by the counsel in regard to this payment does not, in our view, arise.
3. We think the plaintiff is entitled to interest on the amount to be paid by the companies, only from the time the lien was established by the decree of the Circuit Court, to wit., from November 22, 1864, the companies having agreed to pay the amount of the policies, in case of loss, whenever and as soon as the lien should be established.
Judgment accordingly.