delivered the opinion of the Court.
On the'first of August, 1868, Harvey C. Eawsett was insured against loss by fire by a policy issued by the Mutual Eire Insurance Company of Montgomery County.
The policy contained a clause providing that all the property and securities of said company should be forever subject and liable to pay said Eawsett, his heirs and assigns, the loss which might happen by reason of fire to the property insured, “ unless the said company shall, within ninety days after proof of such damage or loss, proceed to repair, rebuild, or replace the same in as good order, condition, and quality, as it was before it was so injured by fire. ” The policy further provided that when*588ever the said company had paid the amount mentioned therein, or had rebuilt or replaced any buildings destroyed by fire as therein provided, said policy should be “utterly null and void, and of none effect, either in law or equity.”
About fifteen years after the date of this policy Mr. Eawsett, together with his wife, mortgaged his farm and the insured buildings thereon, to Mrs. E. H. Riggs to secure the payment of a considerable sum of money, in which mortgage there was contained the usual power of sale in case of default; and some years after the execution of said mortgage the appellant recovered his judgment against Eawsett in the Circuit Court for Montgomery County.
On the fourteenth of April, 1890, the dwelling house, one of the buildings covered by the policy of insurance, was totally destroyed by fire ; and the Insurance Company, the appellee here, on the fifteenth of May following, by a resolution of its Board of Directors, determined to adjust the claim of Eawsett by rebuilding in accordance with the provisions of the policy before referred to.
Subsequent to the passage of this resolution, the appellant had an attachment issued on his judgment, and directed it to he laid in the hands of the appellee to affect the insurance money claimed by the appellant to be due to Eawsett by reason of the burning of his dwelling house.
It appears, therefore, that the policy of insurance on which the appellee company bases its contentions long antedated both the mortgage under which the land was sold, and the judgment on which the appellant issued his attachment. It also appears that the proof of loss was returned on the twenty-ninth of April, 1890, and that within ninety days, the time limited by the policy, the appellee had determined to rebuild, and finally, that in pursuance of this resolution, a valid contract had *589been made by the appellee ’ with a builder to erect-the new building on the site of the old one.
The statement of the foregoing facts, it seems to us, is sufficient to show that the appellant, claiming here under his attachment, has no standing, for it is apparent that, under the rebuilding clause contained in the insurance policy, there never was a debt due by the appellee to Eawsett, nor any sum of money in its hands which he could legally claim, or which could be reached by his creditors by means of an attachment or otherwise.
The Insurance Company having duly exercised its election to rebuild, it is clear neither Eawsett nor his creditors can, under the terms of the policy, claim the insurance money.
It would certainly be a great hardship and an apparent injustice, to subject the Insurance Company, being guilty of no fraud, to a suit on the part of the insured to recover on the policy, on the theory that the rebuilding clause is void, and at the same time render it liable to an action by the builder to recover damages for breach of the building contract, whifeh it must be admitted it had the right to make under the circumstances of this case.
For it is not contended that the title to the land on which the new building was to he erected had ceased to be in Fawsett when the Insurance Company made the contract with the builder, but it is said the property was then advertised under the mortgage already mentioned. But it does not follow that the land would be sold, or cease to be owned by Fawsett because it was advertised. And if the appellee had waited until the mortgage salé had been finally ratified, before exercising its election to rebuild, it might have then been too late to avail itself of that valuable right under the policy.
There being nothing in the hands of the Insurance Company which Fawsett could legally claim, it follows, *590of course, that the attachment must fail. Myer, et al. vs. Liverpool, London and Globe Insurance Company, &c., 40 Md., 600.
Oases may, no doubt, arise in which the insured, either from peculiar circumstances or fraud in the exercise of the right to rebuild, should have some remedy.
And this is well illustrated by the case of Anderson vs. The Commercial Union Assurance Co., 55 L. J., 146, so much relied on by- the appellant both in his brief and oral argument. But, so far from being an authority sustaining the contention of the appellant it is directly to the contrary. In the case just mentioned, the policy contained a clause similar to the one in question, giving the insurers the discretion to repair and replace the machinery insured. The building in which the machinery was located and used, when insured, as well as the machinery itself, was damaged by fire; and the former ceased to he occupied, or in the possession of the assured, because he failed to pay the stipulated rent. Against the protest of the insured the insurer persisted in reinstating and repairing the machinery in the said building.
An action on the policy was brought, under these circumstances, by the insured to recover the amount of loss by fire; and it was held that both parties were wrong — the defendant, that is the Insurance Company, because, although it had not lost its right to reinstate the machinery, it should not have been reinstated in the same place, hut in th# same state, in which it was before the fire; and the plaintiff, that is, the insured, was wrong because he did not remove the machinery to some reasonable place, to he reinstated and repaired by the insurer.
But all the Judges held that, whatever rights the insured might have, he could not recover, in his action on the policy, the amount of the loss. And we think there is as little reason as there is authority to sustain the contention of the appellant in this case, namely, that he *591is entitled to recover the amount which it had been ascertained the new building would cost.
(Decided 12th November, 1891.)Where there is a failure to rebuild after an election so to do, it has been held that the proper remedy of the assured is, not an action ex contractu on the policy for the amount of loss by fire, but an action to recover damages for not rebuilding, and that the amount of the insurance mentioned in the policy ceases to be the measure of damages. Brown vs. Royal Insurance Co., 1 Ellis & Ellis, 853; Morrell vs. Irving Insurance Co., 33 N. Y., 429.
It will be unnecessary to pass upon the various exceptions taken to the rulings of the Court below on the admissibility of testimony, for they are all involved in the action of the Court upon the prayers; ancC it follows from what we have said, that the appellant’s prayers were properly rejected, and those of the appellee were properly granted.
Judgment affirmed.