The defendant makes the point that it has an equitable claim to the insurance fund, to the extent of the indebtedness due it, by reason of the provision in its mortgage that the mortgagor would insure the buildings for its benefit; and to support this position the defendant cites Wheeler v. Factors’ and Traders’ Insurance Co., 101 U. S. (11 Otto), 439, 25 L. Ed., 1055.
We understand tbe principle to be that as a rule a mortgagee has no right to tbe benefit of a policy taken by tbe mortgagor, in tbe absence of an agreement to this effect, unless tbe policy is assigned to him; but *71where the mortgagor is charged with the duty of taking out insurance for the benefit of the mortgagee, as between the parties to the contract the mortgagee is entitled to an equitable lien on the proceeds of the policy obtained by the mortgagor. Wheeler v. F. & T. Ins. Co., supra; Thomas v. Von Kapff, 6 Gill & J., 372; Chipman v. Carroll, 25 L. R. A., 305, and note; Fitts v. Grocery Co., 144 N. C., 463. In the ease last cited it is said that where the mortgagor has covenanted that he will keep the mortgaged premises insured for the benefit of the mortgagee and then effects insurance in his own name, equity will treat the insurance as effected under the agreement and will give the mortgagee his equitable lien. In this connection it may be noted that the case of Dunlop v. Avery, 23 Hun., 509, cited in the defendant’s brief was reversed by the Court of Appeals of the State of New York. 89 N. Y. (44 Sickels), 592.
But how is the defendant’s argument on this point applicable to the facts? The mortgagor agreed to carry insurance for the benefit of the defendant and he was “required” to do the same thing for the benefit of the plaintiff. That the agreement was in writing and the “requirement” in parol does not imply that the' duty with which the mortgagor was charged was less solemn or exacting in the one case than in the other. Swearingen v. Ins. Co., 52 S. C., 309. Furthermore, all the policies procured by the mortgagor were intended to provide and did provide for the protection of both parties; they were payable to the plaintiff and to the defendant “as interest may appear.” The New York standard mortgage clause was attached to each of the policies and this clause operates as a separate insurance of the mortgagee’s interest. Bank v. Ins. Co., 187 N. C., 97; Everhart v. Ins. Co., 194 N. C., 494; Welch v. Ins. Co., 196 N. C., 546.
The defendant insists that it had an insurable interest in the property and that without regard to its right to an equitable lien it was assured as to indemnity by the New York standard mortgage clause. There can be no doubt that the defendant had such insurable interest. Joyce on Insurance (2 ed.), secs. 1036, 1037; Ins. Co. v. Reid, 171 N. C., 513. But there is a difference between insurance of the mortgagee’s interest and insurance of the mortgagor’s interest for the benefit of the mortgagee — a difference, likewise, between the mortgagor’s executed and unexecuted covenant to take insurance for the protection of the mortgagee. Joyce on Insurance (2 ed.), sec. 104. In this case the relation of the parties is determinable by the executed contract, the direct question being whether the interest of the parties in the proceeds of the policies is to be adjudicated upon the basis of priority of mortgage liens or upon that of a personal contract without regard to such priority. Batts v. Sullivan, 182 N. C., 129, is not authority for the position that liens *72upon property should, be disregarded, because there the policy taken out by the tenant did not purport to protect the interest of the landlord.
If neither of two mortgagees, for whom insurance has been procured, has any priority of claim or of liens, the proceeds of the policies should ordinarily be divided between the mortgagees in proportion to their respective claims; but it is otherwise if there is such priority among the claimants. 26 C. J., 449, sec. 588; Parker v. Ross, 11 S. W., 965; in Lichtstern v. Forehand, 194 N. W., 421. “The insurance money received by the mortgagee takes the place of the mortgaged property, and the mortgagee would receive it, if the debt was due and unpaid, as he would receive the mortgaged property which it represented to reasonably account for its use.” Jones on Mortgages (7 ed.), sec. 410. The plaintiff’s mortgage was registered 14 December, 1920; the defendant’s was not executed until 11 May, 1925. By virtue of our statute priority is given to the mortgage which was first recorded. C. S., 3311. Our conclusion is that the claim of the Wayne National Bank should first be paid out of the funds derived from the policies of insurance. This conclusion finds support in C. S., 6420, which provides that where by the terms of a fire insurance policy taken out by a mortgagor loss is payable to a mortgagee for his benefit the company shall pay all mortgages in the order of their priority of claim. For this reason it is not necessary to consider the defendant’s appeal.
Error.