149 P. 542 | Or. | 1915
delivered the opinion of the court.
"We note át the outset that the insurance was effected by the mortgagor at his own expense under the policy, in which he is designated as the insured, and which insures his property, and appoints the mortgagee as the one to receive payments of the loss to the extent of its interest; otherwise, it is to be paid to Ramsey.
In brief, for a consideration, tbe company agreed with Ramsey to pay a loss, and not a mortgage to the bank. We cannot import into tbe contract a stipulation to tbe effect that Ramsey should not only pay the premium, but also reimburse tbe company for the loss. It is not tbe intention of tbe parties that Ramsey should thus carry all tbe risk, besides paying tbe premium. Tbe plaintiff was paid for assuming tbe risk, and has only complied with its contract by payment of tbe loss. It is not entitled to anything beyond its stipulation. We have examined all the authorities cited by tbe plaintiff to sustain tbe postulate that where tbe policy has become void as to tbe interests of tbe mortgagor, but remains in force as a protection to tbe mortgagee alone, tbe insurer, upon paying the'mortgage, is entitled to subrogation. Without exception tbe adjudicated cases noted in tbe plaintiff’s brief rest upon a.separate contract between tbe mortgagee and tbe insurer, or tbe insurance was paid for by tbe mortgagee, or tbe policy was assigned to him, and hence became bis property tbe same as though originally made to him. In Carpenter v. Providence etc. Ins. Co., 16 Pet. 495, 502 (10 L. Ed. 1044), cited by plaintiff, Mr. Justice Story says:
“If, then, a mortgagor procures a policy on the property against fire, and be afterward assigns tbe policy to tbe mortgagee * * as collateral security, that assignment operates solely as an equitable transfer of tbe policy, so as to enable tbe mortgagee to recover tbe amount due, in case of loss; but it does not displace tbe interest of tbe mortgagor in the premises insured. On tbe contrary, tbe insurance is still bis insurance, and on bis property, and for bis account.”
This action proceeds on the hypothesis that the plaintiff was obliged to pay; but, even so,- it was because of its covenant with Ramsey for which he had paid a
The decree of the Circuit Court is affirmed.
Affirmed.