This rulе called upon the defendant to show cause “why the said inquisition (hereinafter referred to) should not be set aside and a new writ of inquiry issue to have the damages of the plaintiff re-assessed.”
The state of the cаse laid before us consists only of this rule and the stipulation of the parties with a copy of the poliсy of insurance annexed thereto.
The stipulation is as follows:
“It is hereby stipulated by and between counsel for the respective parties hereto as follows: The complaint in this action was based on a policy of title insuranсe, in and by which the defendant covenanted to indemnify the plaintiff against loss or damage not to excеed $12,000, suffered by reason of defects in title to a certain second mortgage of which the plaintiff was thе assignee. The complaint alleged that by decree of the Court of Chancery the mortgage had been adjudged to be invalid and ineffectual to charge the mortgaged premises. Judgment by default was enterеd, and a writ of inquiry issued to the sheriff of the county of Atlantic, which by order of this court was executed under the direction of John 13. Slack, Esquire, a Supreme Court commissioner. Upon the execution of the said writ of inquiry, the Suprеme Court commissioner, in his charge to the jury, directed the jury that if a verdict was to be found for the plaintiff, two аlternative verdicts, one verdict to be based upon the damages sustained by the plaintiff as of the datе of the title policy of the defendant and the other verdict as of the date of the final decreе of the Court of Chancery in which it was determined that the mortgage was invalid and ineffectual, should be rendered. A rule to show cause was granted to the plaintiff to set aside the findings and the report of the commissionеr, in that the Supreme Court commissioner should have charged the jury to find a verdict either of the date of the issuance of the title policy or of the date of the decree of the Court of Chancery. The said inquisition was set aside and a new writ of inquiry was issued, directed to John B. Slack, Esquire, sitting as a
It seems apparent that the answer to that question depends upon the terms of the policy of insurance.
Now, looking at that we see that the policy declаres that where (as here) the insurance is upon the interest of a mortgagee, “no claim shall arise undеr the policy unless * * * the mortgage has been adjudged, by a final determination in a court of competent jurisdiction, to be invalid, or ineffectual to charge the premises described in this policy, or
Hence it seems to us that the Supreme Court commissioner did not err in instructing the jury to computе the damages as of the date on which the Court of Chancery found the mortgage to be invalid, instead as of the date when the policy was issued. That seems to be in harmony with the decision in the somewhat similar case of Flockhart Foundry Co. v. Fidelity Union Trust Co., 102 N. J. L. 405; 132 Atl. Rep. 493, where the Court of Errors and Appeals held that: “Under the terms of the particular contract of titlе guaranty here involved, for breach of which, because of an outstanding interest or title in a portion of the lands, existing prior to the issuance of such guaranty, an action is brought, the measure of the loss or damаge is the value of the portion affected by said outstanding interest or title as of the date of a bona fide cоntract of sale of such lands by the party guaranteed, and is not to be measured by the value of the lands affected as of the time of making such guaranty.”
We think that what we have said in effect disposes of the plaintiff’s argument as found in his brief.
The rule to show cause will be discharged, with costs.