OPINION OVERRULING MOTION FOR REHEARING.
(Filed May 19, 1923.)
We held in this case that an action upon a fire insurance policy issued to the owner of the property but containing a clause making the loss, if any, payable to a mortgagee as interest might appear, was properly brought in the name of the owner as plaintiff, and that the insurance company has no just cause of complaint on that account, where the mortgagee was made a defendant and filed a pleading. In a motion for a rehearing the company urges that this view is inconsistent with Stamey v. Assurance Co., 93 Kan. 707, 150 Pac. 227, 96 Kan. 99, 150 Pac. 227, where a mortgagee was allowed to recover upon a policy notwithstanding no recovery could have been had by the mortgagor, it being said in effect that the mortgage clause created an independent contract for the benefit of the mortgagee ingrafted upon the main contract. The contract with the mortgagee in this case, as in that, 'is so far independent of the one with the mortgagor that the rights of the mortgagee would not be affected by conduct of the mortgagor which might bar a recovery by him; but the contract with the owner and that with the mortgagee are not wholly disconnected. The mortgagor is interested in the payment of the insurance even if it is made to the mortgagee, since it discharges his debt if he is personally liable, and in any event releases the property from the lien. (26 C. J. *338441.) In the present case the advantage to the plaintiff would obviously have been the same whether the payment were made to her'or to the mortgagee, for the mortgage was paid before the trial was had.
In the motion for a rehearing it is said that the company never knew or heard of any order after the submission permitting it to plead or introduce evidence; that “none appears in the abstract of record and is only referred to reminiscently in the final judgment of the court.” The order is shown in the journal entry in the counter abstract. It was a part of the same order in which an amendment of the petition was allowed, and the papers in an appeal by the defendant from that part of it, including a copy of the entire order, which contained only about a hundred words, were filed in this court April 13, 1921. This shows an opportunity for actual knowledge of the contents of the order at least that early. As judgment was rendered March 28, 1922, there was a sufficient interval in which to offer further evidence.
Other matters presented have been considered but are not regarded as requiring a rehearing, and the motion is overruled.