The assignment of the fire policies to the mortgagees, Flaherty et al., was, prima facie, as collateral security for loans secured by the mortgage, and any payment made on account of a fire could not be applied to the payment of an obligation not then due. The position of a mortgagee, therefore, who has a fire insurance policy, and a loss occurs by fire when his mortgage is not due, is that he can have the insurance money impounded to meet the obligation when due, or have the buildings restored so as to make his security at least equal to what it was before the damage occurred. For a well-considered case, wherein many of the authorities upon which the above statement is based are cited, see the opinion of Swartz, P. J., in Farley v. Kelly, 24 Dist. R. 911.
In the case at bar there is no sufficient evidence that the insurance money was to be applied to the restoration of the buildings, and a trust for that purpose created. When, therefore, the mortgagees, Flaherty et al., sued out their mortgage and sold the property for a sum sufficient to pay the same, it was thereby satisfied, and as the sale was of the property in its damaged; condition, no right to the insurance money passed to the purchaser, and it became the property of the owner who assigned it. He being the defendant in this proceeding, the money was liable to attachment in the hands of the garnishees.
The motion for judgment n. o. v. is refused, and exception granted to the garnishees.