
    Great Western Compound Company vs. Ætna Insurance Company, Impleaded, etc.
    Parties: Pleading: Insurance. (1) Joinder of unnecessary party not demurrable. (2) When mortgagee proper party in action on policy. (3) Effect of allegation that mortgagee’s interest has ceased.
    
    1. Joinder of an improper defendant, does not constitute a “ defect of parties defendant ” within the meaning of see. 5, ch. 125, R. S., and is no ground of demurrer.
    2. Where, by the terms of a fire insurance poiicy, moneys due for a loss are to he paid to X. “ to the extent of his mortgage interest in the premises insured,’' X., while he holds the mortgage interest, is a proper coplaintiff with the insured in an action on the policy, or a proper defendant if he refuses to be a plaintiff, R. S., ch. 122, sec. 20, as amended by sec. 2, ch. 91, Laws of 1859.
    3. But a complaint on such policy, not making X. a plaintiff, does not show on its face defeet of parties plaintiff, if it alleges that X.’s interest has ceased, though without showing whether it ceased by payment of the mortgage debt, by assignment of the mortgage, or otherwise.
    APPEAL from tbe Circuit Court for Winnebago County.
    The action was upon a policy of insurance issued by tbe defendant insurance company to tbe plaintiff, on a certain building, wdiich during, tbe life of tbe policy was destroyed by fire. Tbe complaint was in tbe usual form of complaints in such actions, alleging tbe contract of insurance, tbe loss and due proof thereof, and compliance by tbe insured with all of tbe conditions of tbe policy. Judgment was demanded against tbe defendant company for tbe amount for wbicb tbe policy was issued, witb interest and costs.
    Tbe complaint also contained tbe following averments: “ That tbe said defendant, tbe JEtna, Imsu/ramce Company of Hartford, Connecticut, by and in its said policy of insurance, agreed to pay to tbe defendant Jonathan Poote, moneys arising from any loss, to tbe extent of bis mortgage interest in tbe premises insured; that tbe defendant Jonathan Foote has no interest in tbe premises hereinbefore described, by way of mortgage or otherwise, but that be claims an interest in tbe controversy in this action, adverse to this plaintiff, and is a necessary party to a complete determination or settlement of tbe questions involved therein.”
    Tbe defendant insurance company demurred to tbe complaint: 1. For misjoinder of several causes of action. 2. For defect of parties defendant. 3. Because it did not state facts sufficient to constitute a cause of action. From an order overruling its demuri’er, tbe company appealed.
    Tbe cause was submitted by both parties on briefs.
    Finches, Lynde & Miller for appellant:
    It appears from tbe complaint that tbe policy provides for payment to Foote, in tbe event of loss, to tbe extent of bis interest in tbe premises. Hence Foote has a legal right of action upon tbe policy, to the extent of his mortgage, and is a necessary party plaintiff. Brown v. Ins. Oos., 5 K. I., 398.. Until tbe pleading shows affirmatively facts from wbicb tbe court can see that be has not a mortgage, it must be assumed that tbe mortgage exists. Tbe allegation that Foote “has no interest in tbe premises by way of mortgage or otherwise, ” states merely a conclusion of law. Plaintiff alleges that Foote has no interest, and at tbe same time alleges that be claims an interest adverse to him; be therefore makes him a defendant, yet aslcs no relief against him. But if plaintiff cannot allege facts entitling him to some relief against Eoote, the latter is not a party who claims an interest adverse to the plaintiff. Allen v. Miller, 11 Ohio St., 374
    
      Felker & Weisbrod for respondent:
    1. Any person may be made a defendant who claims an interest adverse to the plaintiff, or is a necessary party to a complete determination of the issue. Tay. Stats., 1420, § 19. The allegation that Foote claims an interest adverse to plaintiff, is not a cause of action; he is simply, made a defendant, and is notified to come in and assert his claim, if he has any. 2. The second ground of demurrer is bad for two reasons: (1) A demurrer will only lie for a lack of parties, not for an excess of parties. (2) If Foote is improperly made a party defendant, the objection must come from him. It is not the business of the insurance company to guard his rights. 26 "Wis., 215. 3. It is difficult to conceive how defendant could have been benefited by a more minute statement of facts. It is not only fully apprised of the fact that Foote has no interest, but he is also made a party, so that his right to vex the defendant with further litigation is foreclosed. And the due allegation of the fact is sufficient, without detailing circumstances which constitute the evidence of it. 1 Chitty’s PL, 225; Williams v. Wilcox, 8 Ad. & El., 314.
   Lyon, J.

There is nothing in the complaint to show that -the defendant Foote is a necessary or proper party defendant to the action; and on his demurrer, probably on his motion, possibly on the motion of any other party, he would be dropped from the case. The complaint alleges that he has no interest in the insured property; and the mere fact that he claims an interest in the controversy (no relief being demanded against him) is not sufficient to make him a proper party to the action. Put the demurrer of the appellant does not reach him, because his presence in the case is not a defect of parties, within sec. 5, ch. 125, E. S. See Willard v. Reas, 26 Wis., 540; Marsh v. The Board of Supervisors of Waupaca County, 38 id., 250.

Manifestly there is no improper joinder of canses of action in tbe complaint; and if a cause of action is stated therein in favor of the plaintiff and against the appellant, the demurrer is not well taken.

We think the complaint states such a cause of action. The defendant Foote would have been entitled to a portion of the proceeds of the policy equal to his mortgage interest in the insured building, had he continued to hold that interest, and in such case would have been a proper coplaintiff with the insured in an action on the policy, or a proper defendant in case he refused to be a plaintiff. Ennis v. Ins. Co., 3 Bosw., 516; R. S., ch. 122, sec. 20, as amended by sec. 2, ch. 91, Laws of 1859. But if his interest in the property had ceased when the action was commenced, he was not a proper party either as plaintiff or defendant, and it is substantially alleged in the complaint that his interest therein had then terminated. The complaint does not state the manner in which the interest of Foote was terminated. It may have been by payment of the mortgage debt, in which case the insured is the only proper plaintiff in the action on the policy; or it may have been by assignment of such interest by Foote to some-third person, in which case the insured and such third person would be the proper plaintiffs. May on Insurance, § 449-But in the latter case, although there would be a defect of parties plaintiff, such defect does not appear on the face of the complaint, and can only be reached by answer.

In any view we have been able to take of the case, we think the demurrer was properly overruled.

By the Cou/rt. — Order affirmed.  