Hall v. Parker.

It may be well to add, however, to avoid all misconception that it is not conceded that his actual position in reference to all legal eventualities of consequence to his interest would be the same whether the bond were that of the principal or not.

The case does not require an examination of this feature and hence no explanation will be attempted.

Evidence was offered to show that the other bond though dated and filed on business day and apparently executed and caused to take effect on that day was in fact signed by Geiger on Sunday. Objection being made the evidence was excluded.

This ruling was correct. The bond was given under an order of the court in a pending cause, and by means of it the principal was enabled to keep his cause in court and prosecute it to judgment. It was fair on its face and afforded no hint that it had been signed on Sunday. There was nothing whatever to suggest to the court or the obligees any thing of the kind. It was relied on as a bond which had been executed according to its import. It could not take effect from the signing, but only from delivery or filing. This took place upon a business day. Love v. Wells, 25 Ind. 503; Beitenman's Appeal, 55 Penn. St. 183; Flanagan v. Meyer, 41 Ala.

132.

It has been held that a note is not impaired on account of being signed on Sunday if it be not delivered on that day. Hilton v. Houghton, 35 Me. 143; Lovejoy v. Whipple, 18 Vt. 379; Com. v. Kendig, 2 Penn. St. 448; Clough v. Davis, 9 N. H. 500; Hill v. Dunham, Gray, 543; Adams v. Gay, 19 Vt. 358; see, also, Stackpole v. Symonds, 23 N. H. 229, and Vinton v. Peck, 14 Mich. 287; and the court in Com. v. Kendig, supra, decided that an official bond executed on Sunday is not void as to the parties to be protected by it. See, also, 2 Pars. on Cont. 757 to 765, and notes.

As this paper was framed, dated, signed and filed as a bond executed on a week day, as it was received by the court as such a bond, and as the obligee who relied upon it had no notice or intimation that either signature had been put to it on Sunday, and as it was actually made to take effect on a week day, the circumstance that the act of signing occurred on Sunday could not be allowed to invalidate the instrument.

The other questions require no notice.

The judgment should be reversed with costs and a new trial granted. Judgment reversed.

Aortgage contained a covenant that the mortgagor would insure, and that in default thereof the mortgagee might insure and the premiums should be deemed secured by the mortgage. The mortgagor failing to insure, the mort gagee insured his interest as such, by a policy providing that in case of loss he should assign to the insurer an amount equal to the amount of loss paid. A loss having occurred, the insurer paid it, took an assignment of the mortgage, and brought a suit for foreclosure. Held, that the insurance money was not to be applied in payment of the mortgage debt, and that the action was maintainable; also held that although the provision in the policy was only in terms for the assignment of the mortgage, yet as it was the evident intention to include the bond, and the bond was actually delivered, both passed, and the payment to the mortgagee could not be held to be in liquidation of the bond.*

A

CTION to foreclose a mortgage executed by Jacob H. Van Reed to Philo Plank, and assigned by Mrs. Plank, his execu trix, to the plaintiffs, trustees of the London Assurance Corpora tion. That company had insured Mrs. Plank on her interest as

* As to subrogation see Washington Fire Ins. Co. v. Kelly, 32 Md. 421; 3 Am. Rep. 149; Springfield Fire Ins. Co. v. Allen, 43 N. Y. 389; 3 Am. Rep. 711.

Foster v. Van Reed.

mortgagee on the buildings on the mortgaged premises; the property was subsequently injured by fire, to an amount greater than the insurance, and the company paid her the amount of the policy and premiums paid by her, and took an assignment of the mortgage in suit. The other facts appear in the opinion. The defendants had judgment, from which the plaintiffs appealed.

Wm. M. Evarts, for appellants.

Wm. Henry Arnoux, for respondents. The payment by plaintiffs to the mortgagee of the sum insured extinguished the mortgage pro tanto. Waring v. Loder, 53 N. Y. 585; Kernochan v. N. Y. B. Ins. Co., 17 id. 428; Clinton v. Hope Ins. Co., 45 id. 467; Springfield Ins. Co. v. Allen, 43 id. 393; Wood v. N. W. Ins. Co., 46 id. 421; Ins. Co. v. Updegraff, 21 Penn. St. 513; Suf. Fire Ins. Co. v. Boyden, 9 Allen, 123; Bradford v. Greenwich Ins. Co., 8 Abb. 264;. Lawrence v. St. M. F. Ins. Co., 43 Barb. 479; Shotwell v. Jeff. Ins. Co., 5 Bosw. 262; Benjamin v. Sar. Co. Mut. Fire Ins. Co., 17 N. Y. 415; Cromwell v. Brooklyn Fire Ins. Co., 44 id. 47; Flanders on Insurance, 367-369; Holbrook v. Am. Ins. Co., 1 Curtis, 193. An agreement for subrogation in case of loss would be void without the consent of the mortgagor. Clinton v. Hope Ins. Co., 45 N. Y. 460; Burrows v. Turner, 24 Wend. 277; Davis v. Boardman, 12 Mass. 30; Newson v. Douglass, 7 H. & J. 417; Williams v. R. W. Ins. Co., 107 Mass. 377; Waring v. Loder, 53 N. Y. 581. As the contracts did not provide that the bond should be assigned, the payment to the mortgagee was in liquidation thereof. Cooper v. Newland, 17 Abb. Pr. 342; Merritt v. Bartholick, 36 N. Y. 44; Martin v. Mowlin, 2 Burr. 969; Green v. Hart, 1 Johns. 580; Jackson v. Bronson, 19 id. 325; 4. id. 41; 5 Johns. Ch. 570; 9 Wend. 80; Wilson v. Troup, 2 Cow. 231; Cooper v. Newland, 17 Abb. 342. The mortgagor was liable as surety for the mortgage debt. Halsey v. Reed, 9 Paige, 446; Marsh v. Pike, 10 id. 595; Blyer v. Monholland, 2 Sandf. Ch. 48; Ferris v. Crawford, 2 Den. 595; Cornell v. Prescott, 2 Barb. 16; Hartley v. Harrison, 24 N. Y. 172; Bentley v. Vanderheyden, 35 id. 677, 680; Remsen v. Beekman, 25 id. 552; Thorp v. Keokuk Coal Co., 47 Barb. 439; Flagg v. Thurber, 14 id. 196; 3 Seld. 121; 3 Johns. Ch. 255; 2 Den. 595; 20 N. Y. 268; Tripp v Vincent, 3 Barb. Ch. 613; Burr v. Beers, 24 N. Y. 178; Rawson v. Copland, 2 Sandf. Ch. 251; Jumel v. Jumel, 7 Paige, 591; JohnVOL. XXVI-69

Foster v. Van Reed.

son v. Zink, 51 N. Y. 333. The mortgagor has an insurable interest in the property after he has conveyed the equity of redemption. Waring v. Loder, 53 N. Y. 581; Herkimer v. Rice, 27 id. 173; 45 id. 460; Savage v. How. Ins. Co., 52 id. 502; 55 id. 358; Flanders on F. Ins. 342. The mortgagee is estopped from denying that the insurance was effected for the benefit of the mortgagor. M. & Tr. Bk. v. Hazard, 30 N. Y. 226; Brown v. Bowen, id. 541; Pickard v. Sears, 6 Ad. & El. 469; Dezell v. Odell, 3 Hill, 215; Welland Canal Co. v. Hathaway, 8 Wend. 483; Sparrow v. Kingman, 1 N. Y. 242; Lawrence v. Brown, 5 id. 394; Rowley v. Empire Ins. Co., 3 Keyes, 560, Plumb v. Catt. Ins. Co., 18 N. Y. 392; Ames v. N. Y. U. Ins. Co., 14 id. 253; Kellogg v. Ames, 41 id. 264; Shapley v. Abbott, 42 id. 448; Hathaway v. Paine, 34 id. 109; Wilcox v. Howell, 44 id. 403; Dougrey v. Topping, 4 Paige, 94; Story's Eq. Jur. (11th ed.) 869; In re Strand Music Hall Co., 3 DeG. J. & S. 147; Hill v. So. S. R. Co., 11 Jur. (N. S.) 192; Wilson v. W. H. & H. Co., id. 124; Steevens' Hospital, 15 Ir. Ch. 405; Herman on Estoppels (ed. 1871), 335, §§ 321, 329, 542, 555; Wood v. Seely, 32 N. Y. 116; Hale v. Un. Ins. Co., 32 N. H. 295.

MILLER, J. The policy of insurance issued to Mrs. Plank who held the mortgage sought to be foreclosed in this action, insured her against loss on" her interest as mortgagee," in the buildings on the mortgaged premises, and contained a clause that "in case of loss the assured shall assign to this company an interest in said mortgage equal to the amount of loss paid." The mortgage contained the usual clause for insurance by the mortgagor, and in case of default provided that the mortgagee might make such insurance and the premiums paid should be deemed secured by the mortgage. There can be no question that a mortgagee has an interest separate and independent of any other interest which may be the subject of insurance generally or specially, and in case of loss the insurer having paid to the mortgagee the amount of his debt may be subrogated to the rights of the mortgagee. This principle is upheld by numerous decisions, and in a recent case, The Excelsior Fire Ins. Co. v. The Royal Ins. Co., 55 N. Y. 359; 14 Am. Rep. 271, it was said in the opinion: "It is settled that when a mortgagee, or one in like position toward property, is insured therein at his own expense, upon his motion and for his sole benefit, and a loss happens to it, the insurer in making compensation is entitled to an assignment

Foster v. Van Reed.

of the rights of the insured." See, also, Cone v. Niagara Fire Ins. Cb., 60 N. Y. 624; Etna Fire Ins. Co. v. Tyler, 16 Wend. 385; Flanders on F. Ins. (2d ed.) 400. Had Mrs. Plank insured at her own expense and for her own benefit solely, then under the clause in the policy which has been quoted, if there were no other difficulties in the way, there is unanswerable ground for the position that the plaintiffs, under the clause in the policy cited, were entitled to be subrogated in her place. A more serious question, however, arises if Mrs. Plank insured under the clause in the mortgage conferring authority for that purpose at the expense of the owner, and if the premium was advanced by her for her own as well as the owner's benefit. She had a right to insure in this form, and the judge found that Adams, who was a former owner and who had assumed to pay the mortgage, being in default in respect to insuring the premises and assigning the policy to Mrs. Plank, the latter thereupon effected an insurance under the insurance clause, and the premium paid was charged and became a part of the principal sum of the mortgage, as a conclusion of law that said insurance, effected by her as mortgagee under the provisions in the mortgage, inured to the benefit of the mortgagor and his assigns. There was evidence upon the trial to show that Mrs. Plank had requested the owner to repay the insurance money; that she said she had insured and charged it under the mortgage, and wanted the insurance money paid back, and upon a promise by Adams to repay it in a few days she also said it would be all right. Although she denies that she thus stated, she testifies that she instructed her attorney to collect the insurance with principal and interest, and that she did insure and charge the premium. It also appears that the principal was paid to Mrs. Plank by the plaintiffs when they received an assignment of the mortgage. This testimony we think sustains the findings of the judge to which reference has been had. Assuming that the premium was paid by Mrs. Plank, as found by the court in accordance with the clause in the mortgage which authorized this to be done, the question is presented whether the insurer's right to an assignment of the mortgage under the contract of insurance is paramount and independent of the contract between the mortgagor and the mortgagee?

The contract under the insurance clause in the mortgage authorized an insurance of the property by the mortgagee; but this provision did not prohibit or prevent an insurance directly of her