11 F. 29 | D. Colo. | 1882
This is an action upon a policy of insurance. Plaintiff alleges that Emma Y. B. Oray, on the twenty-first day of August, A. D. 1880, obtained of the defendant insurance on certain premises in the town of Idaho Springs. The amount of the insurance is not stated, I believe, but it is alleged that the policy provided for the payment to plaintiff in case of loss or damage by fire of some sum, as his interest might appear. It is alleged that plaintiff was a creditor of Emma Oray, and that the indebtedness was secured by a trust deed on these premises; that the premises Were destroyed' by fire, and plaintiff’s loss thereby exceeds the sum of $2,000. There is no definite information in the complaint as to the amount of the insurance, or the amount of the indebtedness due plaintiff from the party insured. It does appear that the policy was taken out by Emma Oray and paid for by her. She paid the premium. Plaintiff demands judgment for $2,000.
If it appeared in the complaint that insurance was taken out by this woman, and that the stipulation of the policy is that the loss, if any should occur, should be paid to the plaintiff, all of it — the entire
“The parties to this policy were Headley and the company. * * * The policy was to insure his interest, and not that of the mortgagees, and any money paid to them would enure to his benefit. They hold no assignment of the policy and sue as original parties.
“Ho one can dispute the right of parties to a contract to make money payable to a third person if they see fit.”
That is the proposition as I originally stated it, that if one party contracts with another to pay money to a third person, that may be a contract which the third person may sue on.
“ It is not important in this ease to consider whether, if the policy before us gave the mortgagees an exclusive right to the whole insurance money, they might not sue for it. In the present ease the policy does not purport to do any such thing.”
“Now there can be no splitting up o£ the causes of action on a simple policy. The party insured retained, by the terms of the policy itself, interests beyond the control of the mortgagees. Their interests were several and not joint. Under such circumstances it cannot be held that the mortgagees have any control of the policy which would authorize them to sue upon it. No doubt the company would be protected in paying them their share as equitable appointees, but they cannot be treated as trustees for Headley’s benefit. Ho and not they must be held the legal owner of the policy, which stands in his name and was made for his benefit.”
That is the rule here. This Mrs. Oray is owner of this policy, and entitled to sue upon it. Mr. Thatch has no right of action whatever.
The demurrer is sustained.