55 F. 545 | U.S. Circuit Court for the District of Kansas | 1893
In this case the amount in controversy as between plaintiff and the insurance company is not the $1,000 set out in plaintiff’s bill of complaint. The plaintiff attacks the mortgage of the insurance company, which is for $4,000, and seeks to have it decreed, settled, and canceled. Under authority of Meyer v. Construction Co., 100 U. S. 457, the parties to the controversy should be arranged according to their interest in the subject-matter, and not as they appear on the record. So the plaintiff and the Spragues must be arrayed against the insurance company, for so their interests appear.
The motion to remand and plea in abatement are overruled.
Subsequently the cause was heard on its merits before Judge RIMER, who, on April 11, 1893, filed the following opinion:
This suit was originally brought in the state district court for Russell county (the petition being filed on the 9th day of April, 1890) to foreclose a deed which, although absolute in form, was given to secure the payment of a note due the First National Bank of Russell, Kan., and was, in effect, a mortgage. Gen. St. Kan. 1889, par. 3885. The defendant the Oakland Home Insurance Company, on the 12th day of May, 1890, filed a petition for removal in that court, which was denied. Thereupon, on June 21, 1890, defendant insurance company filed its answer in the state court. Subsequently, and on the 10th day of September, 1890, defendant insurance company filed a transcript of the record from the state court in this court. The complainant and the two defendants the Spragues filed motions to remand, and a plea in abatement to the jurisdiction, which were argued before Judge FOSTER in April, 1891, and the motions to remand and the plea in abatement were by him overruled and denied. Thereupon the parties obtained leave to recast the pleadings to conform to the equity practice in this court. The complainant having filed his bill, the defendants the Spragues filed answer thereto, and the defendant the Oakland Home Insurance Company filed an answer and cross bill. The complainant, in his bill, and the Spragues in their answer, again object to the jurisdiction of this court, and insist upon their right to have the case remanded to the state court, which is perhaps proper enough, in order to save their rights. Judge FOSTER having already passed upon that question in ruling upon the motions to remand and the plea in .abatement, I must decline to again consider it here, and will dispose of the case, leaving the question of jurisdiction to be settled by the court of appeals.
Even if my own views were not in harmony with the views expressed by Judge FOSTER in Ms opinion, which is on file in the case, I would not feel at liberty to disturb the finding already made by him. Sitting as a district judge holding the circuit court, I do not feel called upon, and, indeed, do not tMnk it would be proper for me, even if I differed in opinion, to disturb a ruling already made in the same case by another district judge sitting in the same capacity. Whether or not that ruling is right is, it seems to me,
'Proceeding, then, to the merits of ihe case, it appears from the record that on the 21st of January, 1888, the defendant H. F. Sprague was the owner of lot 10, in block 77, in the city of Bussell, Han.; that upon this lot there was a two-story stone and brick 'building, which was of the value of $5,000; that on the date above mentioned the defendants Is. If. Sprague and his wife made, executed, and delivered to one Charles Berrick a mortgage on the premises above described, to secure the sum of $4,000, loaned by Berrick to them. Upon the same day, bat subsequent to the making and delivery? of the moil gage to Berrick, the defendants XI. F. Sprague and his wife made, executed, and delivered to one E. O. Haskett a deed to the same premises, subject to the mortgage to Berrick. At the time this deed was made ami delivered to Haskett, Haskett was cashier of the First .National Bant of Bussell, and the defendants the Spragues were indebted to that bank in the sum of $1,000, for which they delivered ¿heir juste to the bank, drawing interest at the rate of 12 per cent, per annum; and the dead to Haskett was made, executed, and delivered to Min by the Spragues for the sole purpose of seco ring the payment of said note, Haskett, then being’ cashier of the bank, was aiding as trustee and agent for the bank, and bad no other interest in ihe transaction. On the 10th of March, 1888, the defendant II. F. Sprague applied to one E. T. Jones, then the duly-authorized and act log agent of the Oakland Home Insurance Company, defendant herein, for a policy of insurance in the sum of $1,000 upon the buildings located upon the ground heretofore described. Jones, under Iris agency, was authorized to solicit and effect insurance risks for the defendant company, and had in his possession blank policies of insurance signed and executed by the proper officers of ¿he company, which policies became effective and in fail force and binding upon ihe company wheat countersigned and delivered by Jones. At the time Sprague applied for this insurance he informed Jones that he was indebted to Berrick in the sum of $£,000 and interest, which was secured by ¿.he mortgage above mentioned; and that ihe was indebted to the First ¡National Bank in the sum of SI,060 and interest, which was secured to the bank by the deed to Haskett, its cashier. He also stated to Jones that, subject to the Berrick mortgage and the deed to Haskett, he was the owner of the lot. and the buildings thereon, and stated that he desired to effect an insurance upon the buildings in such form that, in case of loss, the Berrick mortgage would be first paid. He then went with Jones, at Jones’ request, to the office of the register of deeds of Bussell county, where Jones himself made an examination of the records. After completiug the examination, Jones returned to Ms office, and there told Sprague that he would make out the policy as requested. By agreement between Jones and Sprague the policy of insurance was to be taken out in the name of Haskett, and was to have attached thereto the mortgage clause mentioned in the pleadings. Jones thereupon wrote up the policy, and delivered it to Haskett, from whom he received the sum of $40;
The complainant and the defendants the Spragues contend that they have a right to have credited upon the Berrick note and mortgage, now held by the defendant insurance company, the amount of the insurance, viz. $4,000, with interest from the date when the same should have been paid by the company. On the other hand, the defendant company .contends that the complainant is not entitled to have this credit made, and denies ah liability upon the policy of insurance, claiming that no proofs of loss were made out as required by the contract, and that the time limited by the contract for bringing an action thereon, to wit, six months, has long since passed, and tenders back the proportionate amount of
The agreed statement further shows that he remained at Bussell, as the age at of the company, for the period of six months after the buildings were destroyed by fire, which was more than a year after complainant had succeeded Haskett as cashier of the bank. He must, therefore, have known of that fact, the policy having been issued to Haskett with the full knowledge on the part of the company that he acted in the matter merely as trustee for the bank. I do not think that a change in the person of the trustee can operate to relieve the company from liability on the ground that the new trustee, instead of the original trustee, made the proofs of loss. The agreed statement shows that the property insured was destroyed by fire, and that, it was a total loss, and 'that the company had notice of such loss, and that it subsequently paid to Berrick, the mortgagee, the amount of the policy, and took an assignment of the mortgage and insurance policy. This, I think, was a recognition of the validity of this policy by the insurer. The supreme court of Kansas in ihe case of Insurance Co. v. Marshall. 48 Kan. 235, 29 Pac. Rep. 161, where the facts were almost identical with the facts in the present case, in the opinion say:
“Wo think (Ik- finding' o£ the court that the insurance company paid to the holder of its policy the amount named therein clearly establishes the fact that it recognized the policy as a valid and subsisting obligation. The insurance company had no right to the full amount due upon the mortgage after recognizing the validity of the policy. The insurance was collateral to the debt, and the amount paid upon the policy should have been applied as a iMiyinent upon the debt secured by the mortgage. Equity and fair dealing between the parties to this contract of insurance requires that the insurer should bo required to make such application in accordance with the finding of the court.”
See, also, Insurance Co. v. Smelker, 38 Kan. 288, 16 Pac. Rep. 735.
Nei.be-, do I think the objection that no suit was brought either by Haskett or the Spragues within the six months limited by the terms of the policy well taken. Under the terms of the policy the loss was payable to Berrick, the mortgagee, and neither the Spragues nor Haskett could maintain a a action upon this policy until they could allege the payment of the mortgage given by the Spragues to Berrick. Under the mortgage Berrick was entitled to receive the full amount of the insurance money without any regard to the Spragues or to Haskett, and therefore the only person who
My own view is that a decree should he entered declaring the $4,000 received by Berrick on the policy of insurance to he a payment, as of April 6, 1889, of that amount on the note and mortgage given by the Spragues to Berrick, and that the cross complainant’s (the insurance company’s) mortgage, received by it from Berrick, be foreclosed for any balance of interest due thereon on the 6th day of April, A. D. 1889, and paid hv it to Berrick,' if said balance is not paid to it by the defendants the Spragues, or the complainant herein, within 60 days from the date of the decree; and that the complainant’s mortgage he foreclosed (subject to the claim of the insurance company for any balance due it for interest paid as above stated) if the amount due the bank, for which the complainant is trustee, be not paid within 60 days from the date of the decree; and, in case of default in either or both cases, then the property covered by the mortgage shall he sold to satisfy these liens in the order stated; and it is so ordered.