The opinion
Respondent's Petition for Rehearing
Before Warner, Chief Justice, and Lusk, Brand and Perry, Justices.
LUSK, J.
The respondent, Forrest F. Greene, has filed a petition for rehearing and supporting brief, which is a re-argument of every question previously argued and considered and passed on by this court.
In the brief attention is called to two inaccuracies of which we were guilty in stating the facts. They are contained in this sentence: “Under this arrangement [i.e., the escrow] George A. Rahoutis, as agent for the Hasldns, transmitted to Title and Trust Company $6500, the amount of his principals’ loan to the purchasers of the property, with instructions, among others, to pay therefrom the premium on a fire insurance policy to be issued upon the building.” The amount transmitted by Rahoutis was not $6500 but $6175. That discrepancy, however, is immaterial. The portion of the quoted sentence which reads “with instructions * * * to pay therefrom the premium on a fire insurance policy to be issued upon the building” was our interpretation of the actual language used by Rahoutis in his letter of instructions. What he said was this:
“On the adjustments, you are to collect Four Hundred Seventy-seven and 42/100 ($477.42) Dollars for Six Thousand Five Hundred and 00/100 *161 ($6,500.00 Dollars) insurance premium for three years to the above mentioned personal and real property.”
We may have indulged in an unwarranted paraphrase of the language of the Bahoutis letter. We have, therefore, considered again the respondent’s contention that it was he who paid the premium on the insurance. We have again examined the closing statement of the escrow agent, Title and Trust Company, and all of the escrow documents which appear in the record, and we adhere to our finding that the evidence does not support this contention. We cannot find any such evidence in the papers referred to, and there is one consideration to which we did not heretofore refer which should be conclusive of the matter. Mr. Greene was a witness in the case, and he did not testify that he paid or was under any duty to pay the insurance premium. Indeed, he was never asked the question. Surely, if it was his money that was used for that purpose he would have known about it and would have testified to it. Counsel for the respondent says in his brief, “This was an unorthodox deal.” We agree. It appears that there were some judgments against the respondent and a portion of the money loaned by the appellants Haskin to the mortgagors was used to pay off these judgments, and when the whole transaction was concluded the respondent emerged with a mortgage on the property for $16,650.12. It was a second mortgage, subordinate to the first mortgage for $6500 given to the Haskins. Hnder a most liberal appraisal the property was not worth in excess of $15,000. The insurance policy was in the amount of $6500, sufficient only to cover the first mortgagees’ interest, and the premium was $477.10. So far as the record shows, no one other than the mortgagors was under an obli *162 gation to pay the premium. In these circumstances, there should be something more than the argument of counsel based upon, at the best, dubious interpretations of .instructions to the escrow agent and of figures in the closing statement of the escrow agent, before a court would be justified in finding that the respondent paid an insurance premium which, it is not shown, he ever agreed to pay or had any reason for paying.
The brief again argues, and at length, that the respondent became entitled to the benefits of the insurance policy as the grantee of the mortgagors. Certain provisions of the standard mortgage clause are relied on, but we find nothing there which even remotely tends to support the contention. All the provisions of the standard mortgage clause bear upon the rights and duties of the mortgagee. The very first clause, which we quoted in our former opinion, is stated to be for the protection of “the interest of the mortgagee only” in case of a change in the title or ownership of the property. We think it unnecessary to set out thfe provisions which are relied on by respondent’s counsel and that it is sufficient to call attention to the following language appearing on the face of the policy: “Assignment of this policy shall not be valid except with the written consent of this company.” There is no claim that any such consent was ever obtained.
The final contention is that ‘ ‘ The Court erred in deciding that there was neither reason nor justice in a rule which would require the appellants to account for the insurance proceeds.” As this proposition and the argument in support of it present nothing new, we are content to let what we have already written stand as adequate reasons for the view which we have taken of the question.
The petition for rehearing is denied.