
    Asher, executor, et al. v. Union Assurance Society. McBurney v. Union Assurance Society.
   Atkinson, J.

A policy of fire insurance contained a clause: “Loss or damage, if any, under this policy, shall be payable to . . as first mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; Provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.” Held, that the stipulation: “Provided, that in case the 'mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same,” as contained in the foregoing excerpt, is not “a covenant” on the part of the mortgagee to pay any premium unpaid by the mortgagor or the owner, but is “merely a condition which, if not fulfilled by the mortgagee, will bar him from any right of recovery under the policy of insurance.” This ruling is in accord with the weight of authority. Coykendall v. Blackmer, 161 App. Div. 11 (146 N. Y. Supp. 631); Whitehead v. Wilson Knitting Mills, 194 N. C. 281 (139 S. E. 456, 56 A. L. R. 674, 679, note); Schmitt v. Gripton, 77 Cal. App. 429 (247 Pac. 505); Metropolitan Life Ins. Co. v. Olmsted, 28 Ohio App. 139 (162 N. E. 641); Farnsworth v. Riverton Wyoming Refining Co., 35 Wyo. 334 (249 Pac. 555, 47 A. L. R. 1114, 1126, note); Home Insurance Co. v. Union Trust Co., 40 R. I. 367 (100 Atl. 1010, L. R. A. 1917F, 375); Olmsted v. Metropolitan Life Ins. Co., 118 Ohio St. 421 (161 N. E. 276); John N. Acuff Co. v. Bankers’ Trust Co., 157 Tenn. 99 (7 S. W. (2d) 52). Cases apparantly holding to the contrary are St. Paul Fire &c. Ins. Co. v. Upton, 2 N. D. 229 (50 N. W. 702); Boston Safe Deposit &c. Co. v. Thomas, 59 Kan. 479 (53 Pac. 472); Refuge Cotton-Oil Co. v. Twin City Fire Ins. Co., 152 Miss. 522 (120 So. 214); Stoddart v. Black, 134 Kan. 838 (8 Pac. (2d) 305).

No. 9324.

September 14, 1933.

Horace & Frank Holden, J. H. Porter, for plaintiffs in error.

T. M. Smith, contra.

Question answered in negative.

All the Justices concur.  