Whitney

This action is brought jointly against the two companies defendants upon a fire insurance policy issued by defendant, the American Insurance Company, September 6, 1893. The plaintiff is mortgagee of the land upon which the building insured was situated. Judgment went in his favor in the court below, and the appeal is taken from the judgment and an order denying a new trial.

At the date of the issuance of the policy the legal title to the land was in James E. Gordon, who had purchased it from J. F. Sullivan, who, prior to the sale to Gordon, had executed a mortgage* to the plaintiff to secure the sum of over eleven hundred dollars. The amount of the policy was a thousand dollars; and the loss, if any should occur, was made payable to the mortgagee. ‘ The mortgage clause accompanying the policy provided: -“That this insurance, as to the interest of the mortgagee or trustee only therein, shall not he invalidated by any act or neglect of thé mortgagor or owner of the property insured, or by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy; . . . . provided, also, that the mortgagee or trustee shall notify this company of any…