186 A. 6 | N.H. | 1936
The findings and rulings unexcepted to establish the liability of the St. Paul company to pay to the mortgagees the sums of $848.40 and $636.50 respectively. They also establish the liability of the Phoenix company to pay Mrs. Labonte $4,000 unless deductions are to be made on account of the liability of the St. Paul company.
The St. Paul company asserts that it has a right to be subrogated to the claims of the mortgagees upon the notes and mortgages given by Mrs. Labonte. The case states that the company seasonably requested the court to rule in accordance with this contention. We therefore assume that the issue of subrogation was properly raised and that the parties were heard or had full opportunity for hearing upon the issue. If the St. Paul company had the right claimed, it might, upon payment to the mortgagees of their interests, take assignments from them, sue Mrs. Labonte on the notes and summon the Phoenix company as trustee. If such are its rights, the court, in order to avoid circuity of action, should have decreed that the Phoenix company pay the losses of the mortgagees directly, and pay to the receiver the sum of $2515.10. Smith v. Bank,
The St. Paul policy having been cancelled as to the mortgagor's *222
interest and remaining effective as to the interests of the mortgagees, must be treated as a contract with the mortgagees separately. Fidelity-Phenix c. Co. v. Brennan,
This case can hardly be distinguished in principle. Though the owner originally took out the policy and paid the premium, the contract specifically provided that if the insurer became liable upon it to the mortgagees, but not to the owner, payment of the full amount of the mortgages should entitle the company to subrogation. By her own act Mrs. Labonte released the St. Paul company from liability to her. Upon a construction of the contract as it stood after the owner ceased to be a party to it, the intention must be found to be that expressed — that the owner should not benefit from the insurance.
If the policy, instead of being cancelled as to the owner's interest, had been avoided by her default, the insurer would have been subrogated. Badger v. Platts,
Exception sustained.
BRANCH J., did not sit: the others concurred. *223