dissenting. I do not agree with the conclusion reached in this case. There are apparently some conflicts in the decisions, and perhaps if I looked no further than''the letter of some of the decisions quoted to sustain the majority view, I might agree with it, but a careful consideration of these cases differentiates them from the case under consideration.1 The majority opinion in this case, in effect, sustains a general demurrer, which demurrer is upon the ground that the'plaintiff can not maintain an action at all upon this policy, because it has no legal- title-. Indeed, the majority opinion holds that the legal title to the policy remained in the insured, and as long as this was true the Jefferson Life Insurance Company '(the mortgagee) could not maintain an action at law thereon in its own name, or for the use of, or for the benefit of, or aS the appointee of- the insured. It will be seen from this that they base their' opinion' upon the fact that the mortgagee had no legal title. Perhaps so, but I can *248not agree that the mortgagee has no right to maintain the action; for the Supreme Court, in Trust Company of Georgia v. Scottish Union & National Insurance Co., 119 Ga. 672 (46 S. E. 855), held that where a mortgagee’s debt equals or exceeds the value of the insurance, the mortgagee can sue in his own name; and in that' case the mortgagee acquired its rights under a loss-payable clause, just as did the mortgagee in the instant case, and it had no more legal title than the mortgagee in the instant case, there being no assignment of the policy in either case. If suit may be maintained at all by the mortgagee, with the consent of the mortgagor, it may be maintained for the full face value of the policy. The plaintiff amended its petition and alleged that “the Jefferson Standard Life Insurance Company herein brings this suit in behalf of the said Mrs. Mary E. Thornton (the insured), and for her use, . . with the consent of the said Mrs. Mary E. Thornton, the Jefferson Standard Life Insurance Company herein being the appointee of the said Mrs. Mary E. Thornton to collect the policy herein'sued on.”
The writer thinks that the principle of law governing this case is announced by this court in Northwestern National Insurance Co. v. Southern States Phosphate & Fertilizer Co., 20 Ga. App. 506 (2) (93 S. E. 157), where it is held that “in a policy of insurance, a loss-payable clause which contains a stipulation to pay a named mortgagee to the extent of his interest in the policy does not amount to an assignment of the policy, but is a provision merely that the mortgagee is an appointee to collect the insurance money due to the insured in case of loss, and the mortgagee must claim in the right of the insured and not in his own.” The plaintiff in the instant case was an appointee and claimed in the right of 'the insured, as shown by the amendment above quoted. In fact, the cáse referred to and the case under consideration are almost parallel so: far as this feature is concerned. See also Hartford Fire Insurance Co. v. Liddell Co., 130 Ga. 13 (60 S. E. 104, 14 L. R. A. (N. S.) 168, 124 Am. St. Rep. 157). And in applying that ease to the one under consideration it will be borne in mind that the plaintiff in the instant case had the consent of the insured, as shown by the amendment to the petition.
The judgment should, in my opinion, be affirmed.