25 N.H. 200 | Superior Court of New Hampshire | 1852
Under the general rule of the common law, a contract of insurance is not assignable so as to give an action in his own name to the assignee, though by the terms of the policy the contract is with the assured and his assigns, and the agreement of the insurer is to pay the loss to the assured and his assigns. Grainger v. Howard Ins. Co. 5 Wend. 200; Canover v. Mut. Fire Ins. Co. 3 Denio 254; Kittridge v. Rockingham Ins. Co. and Mandell v. Nevins, and Rockingham Ins. Co. Tr. decided in Rockingham county, and not yet reported.
A mortgage is not an alienation within the meaning of this act of incorporation, and would not avoid the policy, and so prevent the plaintiff in this case from maintaining this action. Lazarus v. Ins. Co. 5 Pick. 81; Canover v. Ins. Co. 3 Denio 254.
The fourteenth section of the charter does not provide for an assignment of the policy in case of a mortgage, and this assignment, there being no alienation, is not within the provision of that section. Under that provision of the charter, no action can be maintained by a mortgagee who takes an assignment of the policy, though the corporation assent to the assignment. Canover v. Ins. Co. 3 Denio 254.
If the assignees had been absolute purchasers and alienees, and the assignment were assented to by the corporation pursuant to the act, the assignees would have had all the rights and privileges of the original party insured, and,
The seventh section of the by-laws puts an assignment made to a mortgagee on the same footing with one made to an absolute purchaser; and gives the mortgagee who takes the assignment according to the by-law, all the privileges of the party originally insured, and makes him, by clear implication, a member of the corporation. He is entitled to ah the privileges and incurs all the liabilities of the institution, equally with other members. If this article of the by-laws is valid, it must have the same interpretation that would have been given to it if it had been found in the act of incorporation.
The fair interpretation of the language used in the by-law would give the assignee an action in his own name; otherwise he could not be said to have all the privileges of other members. In case of a loss, his right to recover of the company would be the substance of his security, and the right to enforce his claim in his own name would be very material. The mortgagee, in other cases, sues in his own name to en-' force his rights over the property mortgaged. His security would be very imperfect and precarious if he were obliged to sue in the name of the mortgagor.
In case the mortgagor should redeem, and thus determine the interest of the mortgagee, we perceive no greater difficulty than in any other case where a mortgagee brings an action, which is liable to be defeated by payment of his debt.
We think, therefore, if the by-law is held to be valid, that the mortgagee to whom an assignment has been made according to the by-law, may bring an action on the policy in his own name, and that the original party cannot main
Is the by-law valid ? The corporation have power to make by-laws proper to carry into effect the general objects of the charter, provided they are consistent with the provisions of the charter and the principles of law. The general object of the charter is mutual insurance of insurable interests, in a convenient and effectual manner.
The interest of a mortgagee is an insurable interest, and there is a peculiar convenience in continuing an existing insurance where the property is mortgaged after the insurance, because the interest of the mortgagee is conditional, and may determine by discharge of the debt ’y and in that case, if the existing insurance were vacated by the mortgage, a new one would be necessary. Besides, the mortgagor, as between him and the mortgagee, ought to bear the charge of the insurance, and to remain liable on the deposite-note. In case of an absolute sale, if the insurance is vacated, the insured is discharged from his note on paying for past losses; and there is apparently no great advantage, either to the seller or the buyer, in allowing an assignment, instead of requiring a new note and policy. It may save the trifling expense of a new policy and the inconvenience of a small payment in advance; but the interest of the insured is terminated and cannot revive; whereas, in case of a mortgage, his interest still remains; and there appears to be a great convenience 'and peculiar propriety in allowing the same insurance to continue, in a way that will give perfect security to the mortgagee, and at the same time leave the mortgagor to keep the insurance on foot at his own expense and for his own ultimate benefit in case of a loss; for the loss re
The technical rule that an assignee shall not bring an action in his own name, is not such an unyielding principle as would stand in the way of this by-law; for the assignment and assent of the corporation make a new contract, upon which, in the case of a natural person, the assignee might maintain an action in his own name; and the action of the assignee in this case would be founded on this new contract made with him.
This case has been treated, on both sides, as if the property insured had been mortgaged to the assignee of the policy; but that fact is not found in the case stated. The policy is stated to have been assigned in pledge; but a pledge of the policy is a different thing from a mortgage of the property insured. Without a transfer 'of some interest in the property insured, the policy could not be assigned, either under the charter and by-laws of this corporation or on general principles, so as to give the assignee an action in his own name. We may conjecture that there was in fact a mortgage, but we cannot draw that conclusion from this case, as a legal inference.
If the fact that there was such a mortgage should be conceded and added to the case, there should be judgment on the nonsuit. But if there were no such mortgage, an ineffectual attempt to assign the policy would not defeat the action of the original party insured; his contract with the defendants and his insurable interest would remain, and his right to recover would be unimpaired. As the case now stands, the nonsuit must be set aside and a new trial granted.