Page:Federal Reporter, 1st Series, Volume 8.djvu/202

188 FEPBBAL ,:p!Cp^TI!B, �policy is to be governed by the laws of New Hampshire, wliicb is true in a certain sense; and it maybe that the statutes of New Hamp- shire will give some assistance to the plaintiff in case of a new trial. But the decisions of the courts of New Hampshire, excepting upon points arising under a statute, are not binding authorities in the courts of the United States in aacertaining the meaning and effect of a cbntract of insurance Carpenter v. Providence Ins. Co. 16 Pet. 501. I do not under stand that this point is of any special importance in this case. In so far as the right to niaintain action at common law isconcerned, the law of New Hampshire will goyern, and that law, as I undexstand it, permits an action by the mortgagee when he bas paid the premium. Chamberlain v.N. H. Ins. Co. 55 N. H. 349. The law of this country bas been sottled, with little or no difference of opin- ion, so far as I know, that when the interest of an owner of afa equity of redemption is insured, and the loss is made payable to the mort- gagee by the terms of the policy or by an assignment of the policy, an equitable right is maintained, which is subject to be defeated by his acts in contravention of its conditions. It is enough to cite de- cisions which must cpntrol. my own. , Bates v. Equitable Ins. Co. 3 Cliff. 215; 10 Wall. 83; Johixson Y..North British Co. 1 Holmes, 110, 111, ■pei Shepley, J. �The phrase, "as his iiiterest may appear, " does not affect this ques- tion. It means that the company .will. pay the mortgagee tp the extent of his lien or charge upon the premises. Franklin Sav.Inst. v. Cent. Mut. Co, 119 Mass. 240; Foote y.. Hartford Fire. Ins. Co. Id. 259: �The fact that the mortgagee prooured the policy and paid the pre- mium without Consulting the mortgagor,appears upon Judge Shepley's miputes. Whether the mortgagor gave authority for such action, or whether there was a subsequent ratification by the mortgagor, does not appear, and may be of importance hereafter in ascertainiug the yalidity of the policy; but the construction of the contract clearly is that the mortgagor is the assured. Thus it i^ said that the house is occupied by the assured, meaning the mortgagor. This being so, a court cannot hold that the eflfect or construction of the policy is varied by the extrinsic circumstance that it was procured by the mortgagee. Not only is it inadmissible to change the contract by paroi, but there is no reason to suppose that the parties intended to make any other contract than that which they entered into, or that the company wpuld have agreed to assure the mortgagee. Graves v. Boston Ins. Co. 2 Cranch, 419 ; Woodbury Sav, Bank v. Charter Oak Ins. Co. 29 Conn. 374; Livingstone v. Western Ins. Co. 16 Grant, Ch. 9. ��� �