(n) Converse v. Citizens Ins. Co. 10 Cush. 37.

(o) Columbian Ins. Co. v. Lawrence, 2 Pet. 25; Traders Ins. Co. v. Robert, 9 Wend. 404, 17 id. 631; Tillou v. Kingston Ins. Co. 7 Barb. 570; Stetson v. Mass. Ins. Co. 4 Mass. 330; Locke v. North American Ins. Co. 13 id. 66, 67. A mortgagee may insure the property to insure his claim. Wheeling Ins. Co. v. Morrison, 11 Leigh, 362, 363; King v. State Ins. Co. 7 Cush. 1; Allen v. Mut. Ins. Co. 2 Md. 111.

(v) Strong v. Manufacturers Ins. Co. 10 rick. 40; Miltenberger v. Beacom, 9 Barr, 199.

(q) Jackson v. Mass. Ins. Co. 23 Pick. 422; Traders Ins. Co. v. Robert, 9 Wend. 404, 17 id. 631.

1 As if he has taken possession, and paid part of the purchase-money. Tuckerman v. Home Ins. Co. 9 R. I. 414.

2 This is true where land is taken for a public use, and compensation awarded, Collingridge v. Royal Exchange Ass. Co. 3 Q. B. D. 173; or sold under a bond for a deed, although the conveyance has been made, Clinton v. Hope Ins. Co. 45 N. Y. 454; and where a mortgagee, who has agreed to sell, has received certain payments for certain mortgages, Haley v. Manuf. Ins. Co. 120 Mass. 292.

seem to be certain, that the mortgagee, before possession and foreclosure, has no interest in the property, but that which is created by the debt to him; and no interest beyond that debt. (r)1 If therefore the debt be paid in part, his interest is so far diminished; and if it be paid in full, his interest wholly ceases, and his insurance is annulled.

It must be remembered, also, that his interest in the property is only as a security for his debt. Therefore, if after the buildings are destroyed, the land itself is unquestionably sufficient to secure his debt, it would seem that he has lost nothing. And * there is both reason and authority for saying, that in such case he has no claim on the insurers; although this may not be regarded as an established rule. (s)

The same conclusion might be reached by another principle. We have already seen, that, by the law of marine insurance, insurers who pay for a total loss, take, even without abandonment, all the salvage of the property for which they pay. For a similar reason, insurers against fire, who pay to a mortgagee for a total loss of the building, should be subrogated to the rights of the mortgagee, and take his claim on the mortgagor, and whatever he still holds as a security for that debt.2 We have always regarded this as a general and well-established rule; but recent cases in Massachusetts have thrown some doubt upon it. They favor the doctrine, that where the mortgagee effects the insurance, and there is no reference therein to the mortgagor, and the mortgagee himself pays the premium, there is no privity of contract between the insurers and the mortgagor, but the contract between the insurers and the mortgagee is an independent one; and therefore the mortgagee may recover his whole insurance from the insurers, and hold his whole claim against the mortgagor and his remaining security for his own benefit. (t) l There is authority, strengthened as we think by reason, that where a mortgagor is bound by the mortgage contract to keep the premises insured, for the benefit of the mortgagee, and does in fact keep them insured by a policy which contains no statement that the mortgagee has any interest therein, the mortgagee nevertheless has an equitable interest in, or even a lien upon, the proceeds of the policy, which a court of equity will enforce for his benefit. (u)

(r) Motley v. Manuf. Ins. Co. 29 Maine, 337; Carpenter v. Providence Ins. Co. 16 Pet. 495; Wilson v. Hill, 3 Met. 66;

Macomber v. Cambridge Ins. Co. 8 Cash. 133.

(s) See Smith v. Ins. Co. 17 Penn. State, 260.

1 The liability of a mortgagee, however, as indorser of the mortgage note to an assignee of the mortgage, gives him an insurable interest in the mortgaged property. Williams v. Roger Williams Ins. Co. 107 Mass. 377.

2 A policy of fire insurance is a contract of indemnity, and upon payment of the amount of loss the insurer is entitled to be put into the place of the insured; and if at a subsequent time the insured receives compensation from other sources for the loss sustained by him, the insurer is entitled to recover from the insured any sum which he may have received in excess of the loss actually sustained by him. Darrell v. Tibbitts, 5 Q. B. D. 560. But see Burnand v. Rodocanachi, 7 App. Cas. 333, that a sum paid by the United States out of the Geneva award as compensation to the insured for property destroyed by a Confederate cruiser is not thus recoverable.

(t) It was held in White v. Brown, 2 Cash. 412, that if a mortgagee, in possession for condition broken, insure his interest in the premises without any agreement therefor between htm and the mortgagor, and a loss occurs, which is paid to the mortgagee, the mortgagor, on a bill to redeem and an account stated for the purpose, is not entitled to have the amount of such loss deducted from the mortgagee's charges from repairs. There is no privity in law or fact between the mortgagor and the mortgagee in the contract of insurance, and if the mortgagee gets his interest insured, and receives the amount of his insurance under his policy, it does not affect his claim against the mortgagor. The two claims are wholly distinct and independent. See also Suffolk Ins. Co. v. Boyden, 9 Allen, 123, and Davis v. Quincy Ins. Co. 10 Allen, 113; Cushing v. Thompson, 34 Maine, 496. In King v. State Ins. Co. 7 Cush. 1, it was held, that a mortgagee, who, at his own expense, insures his interest in the property mortgaged against loss by fire, without particularly describing the nature of his interest, is entitled, in case of loss by fire before payment of the mortgage debt, to recover the amount of the loss from the insurers to his own use, without first assigning his mortgage, or any part thereof, to them. In an elaborate opinion, the court maintain that, notwithstanding respectable authorities to the contrary, when a mortgagee causes insurance to be made for his own benefit, paying the premium from his own funds, in case a loss occurs before his debt is paid, he has a right to recover the total loss for his own benefit; that he is not bound to account to the mortgagor for any part of the money so recovered, as part of the mortgage debt; it is not a payment, in whole or in part; but he has still a right to recover his whole debt of the mortgagor. And so, on the other hand, when the debt is thus paid by the debtor, the money is not, in law or equity, the money of the insurer, who has thus paid the loss or money paid to his use. The court, in a note, cite the case of Dobson v. Land, 8 Hare, 216, reviewed in 13 Law Reporter, 247: "The question there was upon the branch of the proposition, whether a mortgagee in possession, on stating his account under a bill to redeem, had a right to charge premiums of insurances obtained by himself on buildings constituting part of the mortgaged property, and add the same to the principal and interest of his debt; and it was decided that he could not. It was conceded, that this involved the correlative proposition, that if the mortgagee had received any sum by way of loss on such policies, he would be under no obligation in equity to credit it to the mortgagor, or be responsible to him for it." See Morrison v. Tenn. Ins. Co. 18 Misso. 262. In Pennsylvania it is held, that where the mortgagee insures the debt, the underwriter, having paid the mortgage debt, is entitled to have recourse to the mortgaged property and to a cession of the security. Smith v. Columbia Ins. Co. 17 Penn. State, 253; Insurance Co. v. Updegraff, 21 id. 513. The right of the insurers to subrogation, where they pay the debt, is sustained in AEtna Insurance Co. v. Tyler, 16 Wend. 385, 397, per Walworth, Chancellor. See Carpenter v. Providence Washington Ins. Co. 16 Pet. 495, 501. It seems to have been allowed by the old French law, and its justice has been approved in England. Quebec Ins. Co. v. St. Louis, 7 Moore, P. C. 286, 22 Eng. L. & Eq. 73. See also a case strongly asserting the right of subrogation of the insurers, Home Ins. Co. v. Western Trans. Co. 4 Rob. 257.