43 Vt. 497 | Vt. | 1871
The opinion of the court was delivered by
The orator seeks to restrain the defendant company from paying certain insurance money to the defendant Mun-dell, and for decree that the same be paid to the orator.
The only question we have felt called on to decide in this case is, whether the orator has a legal or equitable claim to any portion of the money in question. It appears that Mundell, on the 5th day of November, 1866, being the owner of certain real estate occupied by him as a homestead, procured the buildings upon it to be insured by said company. About the 9th of that month the orator commenced a suit against Mundell and attached said homestead upon the writ in that suit, which was duly entered in Wind-ham county court, and such proceedings.were had therein that the plaintiff, at the September term of said court in 1867, recovered judgment against Mundell for $242.95 damages, and his costs taxed at $23.36. On the 29th of February, 1868, the orator took out execution upon said judgment and caused the same to be levied upon said premises, in full satisfaction of said execution and the costs and charges thereon. In October, 1868, the buildings upon said premises were destroyed by fire. The loss was adjusted at $381.18, including loss on personal property, of which the sum of $190 is for the insurance on the buildings. It is insisted by the orator’s counsel that the buildings were not a part of a homestead as against him in respect to said debt, and having levied
The question whether the orator has a legal equity to the proceeds of the policy is wholly independent of the question whether the debt upon which said judgment is founded was an existing cause of action at the time of acquiring the homestead. This view of the subject renders it unnecessary to decide whether the property was exempt from said attachment and levy or not. It seems to us clear that the orator is not entitled to the whole or any part of the proceeds of said insurance. In Lynch et al. v. Dalzell et al., 4 Bro. P. C., 432, it is held that such insurance does not attach on the realty, or in any manner go with the same as incident thereto by any conveyance or assignment of the estate. In Vernon v. Smith, 5 B. & Ald., 1, the court decided that a covenant on the part of the lessee to keep the premises insured runs with the land. So, also, where the mortgagor covenanted with the mortgagee that he would keep the premises insured during the continuance of the mortgage lien, and in case of loss that the proceeds of the policy should be applied to the rebuilding of the property insured, it wa.s held in Maryland that the mortgagee had an equitable lien upon the fund received by the mortgagor from the insurers to satisfy the balance of his debt, which he could not collect by a foreclosure and sale of the mortgaged premises. Thomas v. Vonkapff, 6 Gill. & J., 372. Where the insurance is effected by the mortgagee at the request of the mortgagor, a privity exists between the parties, and the premiums paid become a charge upon the mortgaged premises, in addition to and equally with the original debt, except so far as subsequent mortgagees and purchasers are concerned, and the amount paid by the insurers to the mortgagee goes to reduce the debt of the mortgagor, who is entitled to the balance if the proceeds are more than sufficient to pay the debt. 14 Conn., 32 ; 7 Cush., 16. But it would seem that the mortgagee has in general no claim, either in law or equity, upon the proceeds of a policy effected by the mortgagor in his own name on the mortgaged premises, without any agreement to keep the premigeg ipsqred, unless the policy be
Insurance is a contract of indemnity, given by the insurer in consideration of the premium paid by the insured, against such loss or damage by fire as may happen to the insured in respect to the property covered by the policy. It is a special agreement with the person insuring against such loss or damage as he may sustain. The contract of insurance is in general confined to the parties, and as a general principle no other person has any right in law or equity to the proceeds. Unless a legal or equitable right thereto has been created by contract with a third person, or by some act of the insured, those proceeds have become clothed with the character of real estate, or with a trust in fawor of a third
It is said by the orator’s counsel that Mundell had no insurable interest in the buildings after the levy of the orator’s execution became absolute ; that the insurance company allowed the insurance to remain, and it belongs, says the orator, to the real owner of the premises. Upon the facts of this case the insurance was
The decree of the chancellor dismissing the bill is affirmed with cost to the defendants, and the cause remanded to the court of chancery, to be disposed of accordingly.