Rohrbach v. The Germania Fire Insurance Company. the lands alone, for a security for his debt; and if that be insufficient each must, with equal certainty, suffer a pecuniary disaster, resulting directly from the fire. What legal reason is there, why the one may not, as well as the other, protect himself by a contract of insurance? In Grevemeyer v. So. Mut. F. Ins. Co., 62 Penn. St. 340, it was held that a judgment creditor, whose judgment was taken for the purchase-money of the property burned, had no insurable interest. See, also, Conard v. At. Ins. Co., 1 Pet. 386. The reason given is, that his lien was general, and not specific; that he was not interested in the property, but in his lien only. His judgment was distinguished from a mortgage, in that the latter is a specific pledge of definite property, and the mortgagee has necessarily an interest in it; while the judgment is a general, and not a specific lien; so that if there be personal property of the debtor it is to be satisfied out of that; if there be not, then it is a lien on all his real estate without discrimination. And, citing Dover v. Black, 1 Barr, 493, it is said that a judgment creditor has neither jus in re, nor jus ad rem, as regards the judgment debtor's property. It seems to me that the decision there goes very much upon the fact or the assumption that the judgment debtor had other property, real and personal, to look to than the real estate damaged; and that it does not touch the case of a judgment creditor whose only or principal reliance for payment was upon the property destroyed. That there need not be an existing jus in re, or jus ad rem, is declared by STORY, J., in Hancox v. Fishing Ins. Co., 3 Sum. 132-140; and also, that the right to pursue the debtor personally does not deprive the creditor of an insurable interest. Id. In Putnam v. Mercantile Mar. Ins. Co., 5 Metc. 386, which was an insurance for a commission merchant, upon his expected commission from the sale of a cargo consigned to him to be sold, but in which cargo he had no other ownership or interest, it is said, that such an interest in property connected with its safety and its situation, as will cause the insured to sustain a direct loss from its destruction, is an insurable interest. The question is one of damages rather than title or possession; and it will be enough in general to show such a relation between the insured and the property, that injury to it will in natural consequence be loss to him; and it is not necessary to show that the insured is the legal or equitable owner. Wilson v. Jones, L. R 2 Exch. 139; Buck v. Ches. Ins. Co., 1 Pet. 151, * 163. It will be perceived, that between the case cited from 62 Penn. St., supra, and the case in hand, there are some features of distinction; here the debtor was dead; there was no longer any personal ability, nor sufficient personal property to satisfy the debt; nor as may be inferred any Rohrbach v. The Germania Fire Insurance Company. other real estate than that insured. A fund for the payment of the debt was to be found only in this estate, and principally in the buildings insured. By force of these circumstances, and by operation of the statutes above referred to, this real estate was, for a certain length of time, bound for the payment of this debt. As it was bound, as it alone was bound, as there was nought else, nor any person, liable for the debt, it is difficult to see why, in effect, the debt was not as if a specific lien upon this real estate. A lien, in its most extensive signification, is a charge upon property, for the payment or discharge of a debt or duty. A specific lien is a charge upon a particular piece of property, by which it is held for the payment or discharge of a particular debt or duty, in priority to the general debts or duties of the owner. It is not the name of the right which gives or refuses an insurable interest; it is the character of the right. A specific lien gives an insurable interest, because loss of the particular property is at once seen to affect disastrously the specific lienor. But when a right to payment of a debt exists, which can be satisfied only from a particular piece of property, is there not the same result from the same cause? If I have a debt against another, and he have but one piece of real estate from which my debt may be made, and he die leaving no personal estate, though in technical language my lien may not be specific upon that real estate, it is true in fact, that there is a specific piece of property from which alone I may hope to satisfy my lien, and which is alone legally bound to satisfy it, and I am, practically, just like one to whom that piece of real property has been specifically pledged for a specific debt. If the latter, for that he may suffer pecuniary loss by the burning of that real property, has such an interest, as that he may insure against that burning, I have such an interest also, and I too may insure. The probability, nay the possibility, of the payment of the plaintiff's debt, out of the property of the de ceased debtor, rested entirely upon the contingency of this real estate remaining without serious impairment in value. The reports of this State are meagre upon this precise question. In Mapes v. Coffin, 5 Paige, 296, the complainant had levied upon chattels in the hands of an executor of the judgment debtor, which had been insured by the testator in his life-time, and which were destroyed by fire after the testator's death, and after the levy. The chancellor, in a contest between judgment creditors, gave the avails of the insurance to the creditors who had made the first levy. Perhaps the levy upon the prop erty made a specific lien upon it, and so the case does not much aid us. In Mickles v. Roch. City Bk., 11 id. 118, the defendants were judgment creditors of a manufacturing corporation, had issued several executions, VOL. XX.-58 Rohrbach v. The Germania Fire Insurance Company. had sold and bid in personal property, and advertised for sale the real estate. Pending the advertisement, they took out insurance on the buildings and fixtures in the joint name of themselves and the corporation. A few days after the real estate was sold and bid in by the defendants. After that occurred a fire, with damage to the buildings and fixtures. The insurers repaired the buildings, and paid for the damage by fire to the fixtures. The real estate was never redeemed. There seems to have been no doubt made of there being an insurable interest in the creditors. By advertising the premises for sale, they came nearer making their judgment a specific lien thereupon, though it was still a general lien upon all other like property. In Springfield F. and M. Ins. Co. v. Allen, 43 N. Y. 389-395, 396, it is said by ALLEN, J.: "An insurable interest may exist, without any estate or interest in the corpus of the thing insured;""it was enough that" there be " a pecuniary interest in the preservation and protection of the property, and" that one" might sustain a loss by its destruction." I know of no decision in this State bearing more directly upon this precise question, than that in Herkimer v. Rice, 27 N. Y. 163. The propositions advanced there are sufficient, if sustainable, or if to be taken as authority, to uphold an insurable interest in the plaintiff in the case in hand. DENIO, Ch. J., there says: "It is certain that the creditors had no estate whatever in the real property. In a technical sense they had no lien. But they had important rights connected with it, and a pecuniary interest in its preservation. The law does not require that the assured shall have an estate or property in the subject of the insurance. * No property in the thing insured is required. It is enough, if the assured is so situated as to be liable to loss, if it be destroyed by the peril insured against. Creditors having no other means of enforcing their debts, but having a direct and certain right to subject the real estate to a sale for their benefit, have an interest as positive and absolute as one having a specific lien, or even as the owner himself. * The creditors, whether by simple contract or specialty, under our laws, are parties interested in the real estate, when there is a deficiency in the personal, for they have power to subject it to the payment of their debts." It is urged that these remarks are obiter dicta, and that the real question to be decided and which was decided in the case was, whether an administrator of an insolvent estate had such an interest in the real estate of his intestate as was insurable. Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed delib erate determinations of the judge himself (4 Burr. 2064–2068); obiter Rohrbach v. The Germania Fire Insurance Company. dicta are such opinions uttered by the way, not upon the point or question pending (Rouse v. Moore, 18 Johns. 407-419), as if turning aside for the time from the main topic of the case to collateral subjects. I think that no one who reads the opinion in Herkimer v. Rice can doubt that all which was said on the subject of a creditor of an insolvent estate having an insurable interest in the real property thereof, was the professed and deliberate determination of the learned Chief Justice, not hastily formed nor carelessly expressed; not by the way nor on a collateral question to that awaiting decision, but deemed essential to lead up to the solemn judgment rendered. The direct question was, indeed, whether an administrator of an insolvent estate might insure its real property. But the reasoning of the opinion shows that this was deemed to depend upon whether the creditors of that estate had such an interest. After stating the question, he says: "It will be convenient to consider, in the first place, whether the creditors themselves have such an interest; and then, whether the administrator can be said to represent that interest, so as to enable him to make the contract for the benefit of the creditors." Again, ** "the creditors of an insolvent estate are generally numerous, and having no opportunity for concerted action, except through the executor or administrators, they could scarcely ever avail themselves of the advantage of insurance, unless by the agency of the representatives. If the administrators cannot insure, the parties interested, the creditors, will be excluded from a remedy which all other persons having a similar interest possess." ." He then proceeds to show that an agent or trustee may insure the interest of a party beneficially interested, and that the administrator, though not the trustee of the land, is the trustee of a power over it, such as is recognized by law, and says: "In this case it was sufficiently apparent, from the language of the receipt for the premium, that it was the interest of the creditors which was designed to be covered by the contract; the beneficiaries of the administrator were the parties intended to be protected; the insurers, therefore, must have seen and known that it was the interest of the creditors which it was the object of the policy to protect, and which was the subject of the contract." There is more to the same effect; and the opinion is based upon the ground that the administrator is the representative of the creditors. Indeed, but for their being creditors, the administrator would have no concern in the land, and the concern he has with it is, that they through him may dispose of it for the payment of their debts. Herkime v. Rice was a case in which there was full argu ment and consideration. I consider it gives reasons, as well as authority, for the determination of the question now in consideration. It has often Rohrbach v. The Germania Fire Insurance Company. been cited as an authority, and at times as authority for the power of an executor or administrator to insure, as having, or as representing an insurable interest, holding it for the beneficiaries under the will, or in the intestate's estate. Savage v. Howard Ins. Co., 52 N. Y. 502. In Clinton v. Hope Ins. Co., 45 N. Y. 454, it is cited by ANDREWS, J., as holding that when the personal estate of an intestate is insufficient to pay the debts, the administrator has an insurable interest in buildings, on the ground that he is the trustee of a power to sell the land for the benefit of creditors, and that as the interest of the creditors is the subject of the insurance, the administrator may insure for their benefit. The decision is there put aside as not a precedent for that then in hand, inas much as in that the personal property was sufficient to pay the debts, and therefore the administrator had no insurable interest. See also Waring v. Loder, 53 N. Y. 581, where it is cited as authority for the proposition, that a mortgagor after he has sold the mortgaged premises has still an interest in it which is insurable, inasmuch as it stands between him and personal liability for the mortgage debt. The distinction is not perceptible, so far as this question is concerned, between a power to obtain indemnity against loss from being obliged to pay a debt owing to another, and against loss from failure to obtain payment of a debt owing to one's self. I conclude that a creditor of the estate of one deceased, whose personal property left is insufficient for the payment of his debts, has an insurable interest in the sole real estate of the deceased debtor, when it is plain that if it is damaged by fire a pecuniary loss must ensue to the creditor thereby. The policy runs to the plaintiff, and by its terms insures him " on his two buildings." The defendant now insists, that it appeared upon the trial that the plaintiff was not the owner of the property insured at the time of the insurance, and that the complaint should, for that cause, have been dismissed on its motion. If I appreciate the point made, it is, that as the policy purports to insure "his two buildings," and as he did not then own the two buildings which were afterward burned, it cannot now be said that the policy was upon the two buildings destroyed. There is no doubt what property the plaintiff and defendant meant to insure, or that it was that which was subsequently burned, which was from the beginning of the transaction to the time of the fire in his pos session. Simply as a description of property, in which light alone I am now treating the phrase, it was not a warranty of ownership, nor a material misrepresentation (Niblo v. North American Fire Ins. Co., 1 Sandf. 551; Traders' Ins. Co. v. Robert, 9 Wend. 404; Tyler v. Etna F. Ins. Co., 12 id. 507); and simply as a phrase of description it |