133 Iowa 570 | Iowa | 1907
'The New Hampshire Trust Company recovered judgment against defendant in the district court of Seward county, Neb., upon a policy of fire insurance in the sum of $2,000, with interest. This judgment was appealed to the Supreme Court of that State, where it was affirmed on the 4th day of February, 1896. The judgment was rendered in the name of the New Hampshire Trust Company under an allegation of the original petition that it was the legal owner and holder of a mortgage upon the property insured. The policy was issued to one Brown, who , was the owner of the property, and it provided that “ loss if lany is payable to the New Hampshire Trust Company, «mortgagee, as their interest may appear at the time of loss.” After the judgment was rendered, and on or about the 4th day of October, 1899, the New Hampshire Trust Company assigned the judgment to the plaintiff herein. It is claimed that when the original action was brought, and at all times since, plaintiff herein was in fact the owner of the note and mortgage; that the New Hampshire Trust Company had no interest in the note and mortgage; that it had assigned the same to plaintiff; and that the judgment was obtained through fraud and false swearing. The testimony shows that on or about March, 1889, the New Hampshire Trust Company assigned the note and mortgage held by it to plaintiff herein, and as part consideration therefor guarantied the payment of the note by the following instrument: “For value received, the New Hampshire Trust Company hereby guaranties the payment of the interest coupon hereto attached when due and the principal sum within two years after maturity with interest semiannually thereafter at six per cent., but the said company reserves the right to purchase the obligation at any time by paying the holder the face of
The name of the assignee was originally in blank, but plaintiff’s name was inserted therein on March 21, 1889. The loss occurred January 10, 1891, and the action upon which the judgment was rendered was commenced in May of the year 1891; the allegation in the petition being that plaintiff, the New Hampshire Trust Company, was the owner and legal holder of the note and mortgage. The defendant in its answer denied generally plaintiff’s ownership of the note and mortgage. It seems that the action was brought by an agent and attorney of the New Hampshire Trust Company upon instruction from his principal. Ma-honey never had the policy in his possession, but at the request of the trust company he redelivered the note and mortgage to an agent thereof “ to be used in court in the insurance suit.” He did not know in whose name the suit had been brought, but thereafter was informed of the situation when demand was made upon him to pay the cost of printing a brief for use in the Supreme Court of Nebraska. Before the note and mortgage reached the attorney in Nebraska, an indorsement without recourse of the signature of one H. D. Upton, who it appears was treasurer of the trust company, was erased, as also was the name of plaintiff, from the assignment on the back of the mortgage. These era
The trust company paid plaintiff herein the- interest coupons as they matured, from April 1, 1889, to April 1, 1893, and for three of the years only were they reimbursed by the maker of the notes and mortgage. No portion of the principal of the loan, or of any other interest coupons, has been paid. This action was commenced April 8, 1902, and judgment was rendered in the district court of Polk county, October 24, 1905. For a reversal of this judgment appellant relies ‘upon two propositions: First, that the action upon the foreign judgment is barred by the statute of limitations; and, second, that the judgment was procured by fraud and false swearing.
Moreover, it had advanced money to take up interest coupons for the benefit of the mortgagor, and there was a stipulation that the mortgagor should keep the mortgaged premises insured for the benefit of the mortgagee or his assignee. Under such circumstances, a lien might be impressed upon the proceeds of the policy in favor of the mortgagee. Fred Miller Co. v. Capital Ins. Co., 111 Iowa, 590. 4 Cooley’s Ins. Briefs, 3703, and cases cited.
Plaintiff Mahoney, who was assignee of the note and mortgage, is not complaining of the conduct of the trust company. On the contrary, he has adopted its acts, and is now seeking to enforce the judgment. The result of the whole matter is that no fraud was in fact perpetrated. Defendant was not deprived of any legitimate defense, and, had it known .all the facts, it could not have defeated recovery upon the policy on these grounds. Doubtless, whoever made the erasures thought that plaintiff herein, Mahoney, could not recover upon the policy, as an indorsee or assignee, and that the erasures would simplify the case. He may, perhaps, have intended to defraud, but fraud, as we have'said, does not consist in mere intention. There must be something done
But appellant says that the promise in the policy to pay indemnity to the trust company was personal, and could not be assigned or transferred, citing Kase v. Hartford Ins. Co., 58 N. J. Law, 34 (32 Alt. 1057). Let this be conceded.for the purpose of the case, still it in no manner solves the question as to whether or not the trust company might recover upon the policy. It undoubtedly had a right of action as an appointee, provided it held an insurable interest in the property at the time of loss. That it had such interest is demonstrated by the authorities already cited. Defendant’s only defense to an action brought by the trust company was that the trust company did not have an insurable interest. The trust company was undoubtedly an appointee, and, if it retained an insurable interest, it had a right to sue. According to defendant’s counsel, the assignee of the note and mortgage, plaintiff herein, could not have sued, and it is contended that the owner of the property could not have brought action in his own name. Hence it is not a question as to who was the real party in interest. We think there was no such frau.d in the case as to constitute a defense to the judgment.
The judgment is right, and it is affirmed.