(dissenting).
I dissent from the main opinion in this .case and do not intend to go into a lengthy statement of my reasons for doing so-. It is my opinion, however, that all of the points of law involved in the so-called first appeal were not explored nor considered and' that there was error in the actual basis upon which that decision was grounded, that á mortgage not supported by consideration can nevertheless create a 'lien upon the land and that a false lien so created can amount to an insurable interest so that a policy of title insurance issued in connection therewith will be enforced against the insurer. No one, I think, will vouch for the integrity of either contract involved here, mortgage or title insurance policy, with the elements lacking as I have set out above.
' Nor can I agree with the application of the concurring opinion of Chief Justice Crockett to this case. With no basis in law that would support and give enforceability to the title insurance contract there can be no valid contention that such a contract constituted primary coverage for the embezzlement by Rowley of Prudential’s money. Without a basis for primary protection' in the title policy there can'be no strength in St. Paul’s position that its fidelity bond amounts only to secondary coverage. Shielded by such a defense a surety company cannot even claim a moral justification, though protected by a legal decision. Accordingly, there is no reason for intimating that the loss be distributed between two insurers, without evaluating the contents of their contracts, simply because they are both defendants in the lawsuit.
If the disposition of the pending appeal is pursuant to the rule “law of the case” I would venture to suggest that this court has not yet adopted the plaster cast rule that “right or wrong the first decision stands” even though the words “right or wrong” do *73appear in the case, Helper State Bank v. Crus, 95 Utah 320, 81 P.2d 359.
Our neighboring.state has ruled that ambiguity in a preyious opinion will not permit the rule of law of the case to control, In re Monoghan’s Estate, 70 Ariz. 349, 220 P.2d 726. In this “first appeal” the opinion read :
Plaintiff’s contention that its loss resulted from the embezzled funds is without merit since it was never intended that Prudential should have the funds, but any such loss would be borne by the Parkers * * *.
Prudential already had the funds which were lifted from their normal course by the faithless servant Rowley and dropped into his own pocket, thus diverting the transaction from the usual course of business. One is confused by the foregoing quote as to what the basis was for the court’s decision.
I truly think that this court in this case would do well to adopt the view of Judge Learned Hand,
Besides, whatever may be said of earlier decisions, it is now well settled that the “law of the case” does not rigidly bind a court to its former decisions, but is only addressed to its good sense. [Higgins, et al., v. California Prune and Apricot Growers, Inc., 3 F.2d 896, 898 (2 Cir. 1924).]ELLETT, J., being disqualified, does not participate’herein.