Page:Federal Reporter, 1st Series, Volume 1.djvu/77

FRIEMANSDOKP V. WATBKTOWN INS. CO. 69 �The first is, that the policy contained a clause that other prior or subsequent insurance, without the written consent of the defendant, should void the policy ; and avers that there was at that time a policy outstanding held by Nigg, the mortgagor, issued by the Farmers' Pire Insurance Company, of Philadelphia, which was in full force at the time of the loss. �The second plea invokes the same clause of the policy, and avers that in violation of that clause of the policy there was outstanding at the time of the loss another policy of insur- ance issued by the Farmers' & Drovers' Insurance Company of Louisville, Kentucky, to Henry Nigg, and that the same was in force at the time of the fire aforesaiJ. �The third plea states that after the loss Nigg, the mort- gagor, and owner of the equity of redemption of the prem- ises, fully repaired the premises, without any expense to the plaintiff, whereby the plaintiff has sustained no loss or dam- age by reason of the said fire. �To these pleas the plaintiff has interposed a general de- murrer, and on the part of the defendant it is claimed that as no plea of the general issue now appears upon the record, that this demurrer should be carried back to the declaration, and the question is made upon the argument of the demurrer that this suit cannot be maintained in the name of Friemansdorf, the mortgagee, and to whom the loss is to be payable. �I have no doubt but what the authorities, both in the state of Illinois and the United States, have now settled the law beyond ail question or challenge, as far as this court is con- crned, that upon a policy like this, issued to a mortgagor, and with the loss, however, directed to be paid to a mortgagee or any other encumbrancer or lienholder, the suit must be instituted in the name of the mortgagor, and cannot be insti- tuted in the name of the mortgagee or the person to whom the loss is made specifically payable. The contract is really between the insurance company and the owner of the property, to whom the policy is issued. Legally, the contract is between the insurance company and the person to whom the policy runs, not to whom it or some portion oi it may be made payable ��� �