223 Mich. 417 | Mich. | 1922
A rehearing was granted in this case for the reason that in paragraph 9 of the opinion, reported in 221 Mich. 326, the case of Lindemann v. Insurance Co., 217 Mich. 698, is cited as decisive of the question there discussed. It is not. That Act No.
The former opinion states:
“The plaintiff Ann Arbor Savings Bank, a Michigan corporation, is named in a loss payable clause as payee as its mortgage interest may appear. The policy in the case at bar is dated October 8, 1920. The loss payable clause was attached or indorsed October 27, 1920. On both of these dates the mortgage interest of the bank was 850,150 excluding interest. On December 4, 1920, the bank took another mortgage of 825,000 given by Mrs. Goffe and also signed by her husband, Jacob Goffe.”
It is now insisted that the mortgage of December 4, 1920, covering the property insured violated the provisions of the policy respecting change of interest and respecting incumbrances. See chapter 2, part 4, Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, §. 9100 [238-254]). The rule applicable is stated in the text of 26 C. J. p: 231:
“Where a policy is made payable to a mortgagee ‘as interest may appear’ a second mortgage taken by such mortgagee without notice to insurer will not avoid the policy, since the words quoted refer to the mortgagee’s interest at the time of loss.”
See Fenton v. Fire Ass’n, 60 Wash. 389 (111 Pac. 343). The loss payable clause protected the interest of the mortgagee as to its mortgages covering the property so insured and so mortgaged, whether real or personal, determined as of the time of the loss.
Counsel again earnestly urge that the verdict is against the great weight of the evidence. The trial judge, on the motion for a new trial, and we, on the former hearing, held that it was not. On further consideration we adhere to our former holding.
The judgment is affirmed in accordance with our former opinion.
