86 Wis. 393 | Wis. | 1893
The plaintiff could not maintain an action upon the policy in question as sole plaintiff. The legal right of action was in the insured, and the provision in the policy, “loss, if any, first payable to Jennie Perkins or assigns, as her mortgage interest may appear,” operated only as a conditional appointment or order to pay so much of the proceeds of the policy as might be equal to the amount due on the mortgage at the time of, and in the event of, a loss under it. It was not operative in prmsenti, and the insured was still the owner of the policy. If the mortgage was paid before any loss occurred it could not become effective. These considerations serve to show that, whether the mortgage debt be greater or less than the amount of
It is not the interest of the mortgagee that is insured, but the interest of the mortgagor; and it seems illogical to say that whether such an appointment will operate as an assignment of the policy, if it can so operate at all, is dependent upon'Whether the sum due on the mortgage is greater or less than the amount of the loss. The company says, in substance, to the insured: “In consideration of the stipulated premium, we insure you against loss by fire on the property described, in the sum of $400; and at your request, in case a loss occurs, we will pay it to J. P., to the extent that any sum may then remain due on his mortgage.” This is clearly not an assignment of'the policy so that in case of loss the mortgagee alone may sue and recover for it. It is no more than a conditional appointment or agreement for the future appropriation of all or a part of the moneys that may become due under the policy, according to future events, depending for its opera
By the Court.— The judgment of the county court of Winnebago county is reversed, and the cause remanded for a new trial and with directions that the insured be properly made a party to the action.