
    Fred C. Eddy, as Receiver, etc., v. London Assurance Corporation, App’lt, and Giles Everson, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 9, 1894.)
    
    1. Insurance—Mortgagee—Subrogation.
    Where tlie policy provides that the company’s right of subrogation shall not impair the mortgagee’s right to recover the full amount of his debt, the right to recover means the right to demand and to receive full payment of his debt or claim.
    2. Same—Other insurance.
    The provision that the insurance of the mortgagee shall not be invali- ' dated by any act or neglect of the owner of the property, applies to a case of other insurance of his own interest by the owner, without the knowledge or consent of the mortgagee.
    3. Same.
    His insurance cannot be diminished by insurance, without his assent or knowledge, which does not include his interest.
    4. Contract—Construction.
    When a contract contains provisions somewhat inconsistent, that construction will be adopted which, while giving some effect to all, will plainly tend to carry out the clear purpose of the agreement.
    Appeal from judgment of the' general term of the supreme court in the fourth judicial department, entered upon an order, which affirmed a judgment in favor of the defendant Giles Everson, entered upon the report of a referee.
    
      A. H. Sawyer, for app’lt; Watson M. Rogers, for resp’t.
    
      
       Affirming, 48 St. Rep. 10.
    
   Peckham, J.

The plaintiff commenced the above action against the corporation defendant upon a policy of fire insurance issued by the company by which plaintiff as receiver was insured against loss or damage by fire on certain property situated in Syracuse, and formerly owned by the screw1 company of that city. The defendant Everson was insured in the same policy as mortgagee, as his mortgage interest might appear. He was joined as defendant in order that the whole controversy might as between all the parties be settled at once.

Actions were also commenced against several other insurance companies by the plaintiff as receiver, at the same time and to recover upon policies covering substantially the same premises. The judgments in favor of the plaintiff in these other actions are also now before us for review. “The questions .arising affect generally all the insurance companies, although one or two of such questions are not raised in all the policies.

The plaintiff failed to recover, and his complaint was dismissed in the courts below because of the violation of provisions in the policies in regard to procuring other insurance without the companies’ consent, and also because of the plaintiff’s permitting foreclosure proceedings to be commenced to foreclose certain mortgages upon the insured premises. The plaintiff has not appealed.

The defendant Everson and the corporations defendant served cross-answers upon each other, Everson contending that he should be allowed to recover from the companies to the extent of his policies upon his mortgage interest in the premises, while the companies set up several defenses to such claim, which will be noticed hereafter. The cases were referred for trial and the referee reported in favor of Everson as against the insurance companies, and the judgments were affirmed at the general term of the supreme court after a slight modification as to the amounts of the recoveries, and the insurance companies have appealed to this court. The only questions to be determined arise between defendant Everson and the companies. By the judgment entered upon the report of the referee it is provided in all cases that the insurance companies on making payment of the loss are entitled to be subrogated to the rights of the mortgagee, but such subrogation is not to impair the mortgagee’s right to enforce the collection of his claim in full against the principal debtor, nor by means of any collateral security he may hold. This was placed in the judgments in accordance with the reports of the referee.

First. The companies urge that defendant Everson, the mortgagee, having foreclosed the mortgages upon the premises and sold the same under his judgment of foreclosure and sale subsequent to the time of the fire, has thereby put it out of his power to subrogate them to the rights which he had under these curities held by him at the time of the fire, and he, therefore, cannot recover in this action against them. It appears that the Syracuse Screw Company was the original owner of the premises'and it had given three several mortgages thereon, one dated August 13, 1881, for $4,500; one dated November 3,1883, for $14,000; another dated June 30, 1885, for $10,000. The defendant Ever-son, on the 9th day of June, 1888,.was the owner of all of these mortgages, and on that day commenced one action against the screw company to foreclose them. On the 23d of June, 1888, the screw company was dissolved and Eddy was appointed the receiver. The company was wholly insolvent and had no property Other than the mortgaged premises. In July, 1888, Eddy, as receiver, duly appeared in the foreclosure action and served an answer setting up a defense to the $10,000 mortgage. On the 4th of December, 1888, a fire occurred by which the property covered by the policies was damaged, and appraisers were appointed on the 18th of December, and on the 21st of December, 1888,- they made their award by which they determined the damage resulting to the property from the fire to have been $10,102.90. The companies refused to pay Eddy on the grounds already stated.

Everson severed his foreclosure action after Eddy put in his answer setting up a defense as to one of the mortgages, and on the 17th of December, 1888, obtained judgment by default for the foreclosure of the $4,500 and $14,000 mortgages, and decreeing a sale of the premises in satisfaction thereof. Subsequent to the fire, and on the 9th of January, 1889, the property was sold under, the foreclosure judgment for the sum of $15,400, leaving a deficiency on those two mortgages, including interest and costs, of $4,921.86.

Each of the policies of insurance had a provision therein known as the “New York Standard Mortgage Clause,” and under it the loss, if any, was made payable to defendant Everson, as his mortgage interest might appear. The clause contained a provision that the insurance of Everson’s interest should not be invalidated by any act or neglect of the mortgagagor or owner of the property, nor by any foreclosure or other proceedings or notice of sale relating to the property. The clause also contained the further provision that “whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as colleteral to the mortgage debt, or may, at its option, pay to the mortgagee (or trustee) the whole principal due or to grow due on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities ; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of his claim.”

The companies did claim that, as to the owner of the premises, no liability existed. They never in any manner consented to the institution'of foreclosure proceedings.

At the time when they were commenced, June, 1888, no fire had occurred, and the defendant Everson was acting strictly within his legal rights when he commenced them. It must be assumed that the commencement of the foreclosure proceedings terminated any interest which Eddy might have had in the policies up to that time. There was, however, a separate and wholly distinct insurance of the interest of Everson in the property, and, by the terms of that contract of insurance, it was not to be affected by any act or neglect of the mortgagor or owner of the property, or by any foreclosure or other proceedings, or notice of sale relating to the property. The act which forfeited the interest of the owner in a policy was not to affect the interest of the mortgagee. ' Consequently, the mortgagee violated no contract on his part when he commenced the proceedings to foreclose his mortgage, and thus endeavored to collect his debts. Before he had proceeded so far as a judgment of foreclosue a fire occurred. What was he to do ? Was he bound to stay further proceedings and accept payment of the amount of his insurance and then assign to the extent of such payment his rights in the mortgages to the companies? We think not. Such is not the meaning of the clause when read as a whole. Foreclosure proceedings were not to affect his rights. This was expressly provided for and agreed to. Although there was an agreement to subrogate, yet that agreement was also upon- the condition that subrogation should not impair the mortgagee’s right to recover the full amount of his claims. The two rights must be considered together, and though subrogation under certain circumstances may, under the agreement, be insisted upon, yet, unless payment of his mortgage debt is made, the mortgagee must have the right to proceed with the foreclosure and to a sale of the premises, for otherwise it could not be seen whether a subrogation prior to a sale would not impair his right to recover the full amount of the claim of the mortgagee.

If the insurers desired an immediate subrogation, then they had a right, by the terms of their contract, to pay the whole debt and take an assignment of the bond and mortgage and whatever other securities the mortgagee might have for the payment of his whole claim. Otherwise the insurers must wait if the mortgagee desire to continue the foreclosure. The right of the mortgagee to recover his full claim might be pretty sadly impaired if he had to subrogate at once, or, in other words, permit the insurers to collect out of his securities the very amount which they had paid him upon tbe policies issued to increase his security. It is not the mere right to prosecute which is not to be impaired, but the right to payment in full of his claim. This is not to be impaired by any claim of subrogation. Here is a very apt case in which to illustrate the point. The mortgagee sustains a loss upon the sale under the foreclosure decree of the two mortgages of nearly $5,000. There is the third mortgage upon which judgment of foreclosure was obtained, and the amount found due thereon was $12,474, and interest runs on that sum from Ja’buary 15, 1890. The argument of the companies, if allowed, would lead to their sharing in the amount realized upon the foreclosure sale to the extent of the payments made by them on their policies, some ten thousand dollars, and the balance, some five thousand dollars, only would be realized by the mortgagee. In other words, he would receive no benefit whatever from the insurance, for the companies would take out of the proceeds of the foreclosure sale precisely the amount they paid him upon the policies of insurance.

WÉat meaning is given to the words in the mortgagee clause, that no subrogation shall impair the right of the mortgagee to recover the full amount of his claim, if the subrogation can be insisted upon under such circumstances ? Insurance is taken for the purpose of increasing the security of the mortgagee. By the construction contended for by the companies there is really no such insurance. If the sale under foreclosure amounts only to the total of the insurance, but does not reach the full sum of. the mortgagee’s claim, the latter recovers nothing but the insurance money, while the companies are reimbursed their outlay from the proceeds of the foreclosure sale. They lose nothing, and only the mortgagee loses. This consequence is avoided, and, I think, was intended to be avoided, by the provision in question, which makes the right of subrogation dependent upon the fact that its exercise shall not in any manner impair the right of the mortgagee to full payment of his claim. Where the contract provided that it shall not impair the mortgagee’s right to recover the full amount of his debt, the right to recover meant the right to demand and to receive full payment of his debt or claim. If that right is not impaired by the insurers’ right of subrogation, as claimed by them, it is impossible to say under what circumstances it would be impaired. We cannot recognize the correctness of this claim on the part of the insurers.

Second. Another question arises in regard to the so-called contribution. It seems that the plaintiff Eddy, without the consent of these defendant insurers, procured other insurance upon the property. This additional insurance thus procured rendered the policies of these insurers invalid as to the plaintiff. They contend, nevertheless, that in arriving at the proportion of the loss payable by each of them to the mortgagee, this other insurance should be reckoned as part of the insurance on the property. It was procured by plaintiff without the consent or knowledge of the mortgagee, and was not made payable in any event to him, and did not insure his interest in the property. If the claim of these defendant insurers be allowed the effect is to reduce the amount which each is liable to pay to the mortgagee, and thereby to lessen his total recovery, as he has no claim under the other and additional policies. The clause under which this claim is made provides in the body of the policy that the insurer “shall not be liable for a greater proportion of any loss on thedescribed premises than the amount thereby insured shall bear to the whole insurance, whether valid or not.”

I think the courts below were right in rejecting this claim of the insurers. Taken in connection with the language in the mortgagee clause the contract is quite plain. The provision in the latter clause, that the insurance of the mortgagee should not be invalidated by any act or neglect of the owner of the property, applies, among others, to a case of other insurance of his own interest by the owner without the knowledge or consent of the mortgagee.

The effect of the mortgágee clause hereinbefore set forth is tp make an entirely separate insurance of the mortgagee’s interestt and he takes the same benefit from his insurance as if he had re: ceived a separate policy from the company, free from the conditions imposed upon the owners.

Where the company agreed that the mortgagee’s insurance should not be “invalidated” by any act or neglect of the owner of the property, it was not intended to limit the application of that word to a case where the whole policy would otherwise be rendered invalid. The plain and obvious meaning of the language is that the insurance of the mortgagee should not be affected or in any wise impaired or lessened by any act or neglect of the owner. Although contained in the same policy issued to the owner, yet the insurer and the mortgagee were nevertheless entering into a perfectly separate contract of insurance, by which the mortgagee’s interest alone was to be insured and it would be most natural to provide that no act or neglect of the owner should invalidate, that is, impair any portion of the insurance thus separately secured. Can it for a moment be supposed that a mortgagee would otherwise ever consent to such a contract? His desire is to obtain security and to that end he insures his interest in the property. Would he knowingly consent that this security should be liable to be wholly frittered away and made valueless by the action of the owner, unknown to him, in procuring insurance upon the owner’s interest in the property ? Would any sane man agree to hazard his security in such a way?- Would he agree that the value of his security should depend upon the acts of a third party over whom he had no control and of whose acts he might be wholly ignorant? The statement of the proposition is its best refutation. These views are supported by both of the opinions in the case of Hastings v. Westchester Fire Insurance Co., 73 N. Y. 141.

There is some difference in the verbiage of the clause in the reported case and that to be found in the clause under examination here. In the Hastings case the clause as to contribution contained the proviso that in case of other insurance, the assured should recover only a proportionate sum from defendant company. The owner of the property had mortgaged it to plaintiff’s testator and had subsequently obtained an insurance upon his own interest as owner, and subsequent to that time the indorsement in favor of the mortgagee was made, and it was in the body of the policy issued to the owner that the language was used as to the assured. In the clause here under consideration it is seen that the word assured is not there, and the condition is .that in case of other insurance'the company shall not be liable under the policy, etc. The court in the Hastings case thought the word assured referred to the person who was first insured when the policy was issued, and was not transferred to the mortgagee when he subsequently by a minute placed in the policy was made an assured also. This is very true, but a perusal of the whole case shows that the controlling idea was a separate insurance of the mortgagee, freed from the conditions attached to the insurance of the owner, and not to be impaired or weakened by any act or neglect of such owner.

Force must be given.to this positive, language of the contract, and no act or neglect of the owner can be permitted to invalidate, i. e., impair or, weaken (73 N. Y. at 149) the validity of the agreement for the full amount named in the policj7. By taking the insurance in the manner the mortgagee herein did, instead of taking out.a separate policy, all the provisions in the policy, which from their nature would properly apply to the case of an insurance of the mortgagee’s interest, would be regarded as forming part of the contract with him, while those provisions which antagonize or impair the force of the particular and specific provisions contained in the clause providing for the insurance of the mortgagee, must be regarded as ineffective and inapplicable to the case of the mortgagee. So when the agreement in regard to contribution, contained in the body of the policy issued to the owner, is compared with the specific statement in the mortgage clause, that his insurance shall not be invalidated by any act or neglect of the owner, we can only give the latter due force by holding that the insurance of the mortgagee is not, in effect or substance, to be even partially invalidated, i. e., reduced in amount, and to that extent impaired and weakened by any act of the owner unknown to the mortgagee. In such case the general agreement in the body of the policy as to contribution does not, and was not, intended to apply. If it did, then the special aud particular contract in the mortgagee clause would be of no effect. If the two are inconsistent, the special contract particularly, relating to the mortgagee’s insurance, must take precedence over the general language used in the policy issued to the owner. For these reasons the claims of the insurers for a deduction in the amount of their liability cannot be allowed.

Third. As to three of the policies, the mortgagee clause itself contained the provision that the company was only to be liable in the proportion which' the sum it insured should bear to the whole amount of insurance on the property, issued to or held by any party or parties having an.insurable interest therein, whether as owner, mortgagee or otherwise. What meaning is to be attached to this provision after taking into consideration the language heretofore quoted that the insurance of the mortgagee will not be invalidated by any act or neglect of the owner of the property ?

The act of obtaining this additional insurance was the act of the owner, and it was unknown to the mortgagee, and of course, not consented to by him. The additional insurance could by no possibility benefit him, as it was not upon any interest of his in the property. He could not, therefore, resort to any of these additional policies for his indemnity. It is not a case of contribution in any sense, but simply one, on the insurers’ theory, of diminution of their liability, caused by the act of the owner and unknown, and with no possible corresponding benefit to the mortgagee. As a general principle it is settled that, before this apportionment of the loss between different companies can be demanded, the different policies must have been upon the same interest in the same property or some part thereof. Lowell Manfg. Co. v. Safeguard Fire Ins. Co., 88 N. Y. 592. Has this principle been changed by this contract? Can it be that the mortgagee would knowingly consent to a diminution of this .liability to an "extent which might leave it of no value, consequent upon a secret act of a third party, and where by no possibility could he protect his security from such danger ? All the reasoning given under the head lasriabove discussed applies with equal force here, at least so far as the probabilities of entering into such a contract by the mortgagee are concerned. • It is clear that the only object of the mortgagee is to obtain a security upon which he can rely, and this object is, of course, also plain and clear to the insurer. Both Íarries proceed to enter into a contract with that one end in view. n order to make it plain beyond question the statement is made that no act or neglect of the owner with regard to the property shall invalidate the insurance of the mortgagee. When, in the face of such an agreement, entered into for the purpose stated, there is also placed in the instrument a provision as to the proportionate payment of a loss, we think the true, meaning to be extracted from the whole instrument is that the insurance which shall diminish or impair the right of the mortgaged to recover for his loss is one which shall have been issued upon his interest in the property, or when he shall have consented to the other insurance upon the owner’s interest. This may not, perhaps, give full effect to the strict language of the apportionment clause, but if full effect be given to that clause, and it should be held to call for the consequent reduction of the liability of the insurers in such a case as this, then full effect is denied to the important and material, if not the controlling, clause in the contract, which provides that the insurance of the mortgagee shall not be injuriously “ impaired or affected ” by the act or neglect of the owner. As used in these mortgagee clauses, this is the meaning of the word “invalidate.” Hastings v. Ins. Co., supra, at page 149.

We must strive to give effect to all the provisions of the contract and to enforce the actual meaning of the parties to it as evidenced by all the language used within the four corners of the instrument. We are also at liberty to consider the purpose for which the contract was executed, where that purpose plainly and necessarily appears from a perusal of the whole paper. That construction will be adopted, in the case of somewhat inconsistent provisiones, which, while giving some effect to all of them, will at the same time plainly tend to carry out the clear purpose .of the agreement; that purpose which it is obvious all the parties thereto were cognizant of and intended by the agreement to further and to consummate. There is no equity in this claim on the part of the insurers, and we think, from a perusal of the whole clause in the policy, that it was not intended to and that it does not cover such claim.

The judgments of the supreme court must be affirmed, with costs in each case.

All concur, except Andrews, Ch. J., not sitting.

Judgment affirmed.  