WALLER, Circuit Judge.
This interpleader suit, by Sentinel and six other fire insurance companies, was purportedly brought under the Federal Inter-pleader Statute, Sec. 41(26), Title 28 U.S.C.A., as amended January 20, 1936,1 [220]*220and as supplemented by Rule 22(1) and (2) of Federal Rules of Civil Procedure, 28 U.S.C.A.,2 against William Harold Davis, doing business as Radolite Manufacturing Company, the insured; J. C. Stennett, Receiver in Bankruptcy of Davis; Rosenthal Plywood Sales Company, mortgagee of Davis; Bradshaw and Hoover, insurance agents; Pyles and Breland, attorneys and assignees from Davis of the proceeds of the policies; Eugene Fly, Collector of Internal Revenue of the United States 'for the State of Mississippi. The plaintiffs were all citizens of different states from all of the defendants, and there was also the requisite diversity of citizenship among the claimants.3 Plaintiffs alleged that each of them had in its custody or possession money in excess of $500 which it was obligated to pay under policies of insurance each in an amount in excess of $500; that there were two or more adverse claimants to such money, citizens of different states, claiming to be entitled to the money or to one or more benefits arising by virtue of the policies of insurance; that each complainant insurance company had deposited in the registry of the Court the sum of $2,078.43, with the exception of one company which deposited $1,662.74; that complainants believed that the defendants named constituted all parties having, or claiming, any of the proceeds of the policies of insurance t that the complainants were without interest in the controversy but were merely disinterested stakeholders desiring to make payments to the person or persons entitled' thereto and to avoid double liability, as well as the necessity of defending suits brought by one or more of said adverse claimants,, to prevent which an injunction was sought in conformity with the statute.
Those allegations were fully established' by the following facts:
Davis, the insured, who was the owner and operator of saw mills, had executed and delivered a mortgage to Rosenthal Plywood Sales Company on these mills to secure present and future indebtedness. Some of the property covered by the fire insurance policies was damaged or destroyed by fire. There was an adjustment of the fire damage and the amounts claimed in the proofs of loss have been deposited in Court, and there is no controversy on that issue.
The mortgagee claims that under Sec. 5695, Miss.Code of 1942, providing for loss payable clauses to mortgagees in fire in[221]*221surance policies, it is entitled to the proceeds of the policies. The Collector of Internal Revenue asserted a lien on the funds for unpaid income taxes. Bradshaw and Hoover, insurance agents, interposed a claim of $2,690.14 for unpaid premiums on the insurance policies. Davis went into bankruptcy after the fire and the receiver in bankruptcy also set up a claim, to the funds. Pyles and Breland claimed the entire proceeds of the policies by virtue of an assignment made to them by the insured between the dates of the fire and bankruptcy.
The claim of the receiver in bankruptcy was adversely adjudicated early in the proceedings, but that of the insurance agents for the amount of the premiums was sustained and paid. Upon final hearing the lower Court sustained the interpleader and held that the mortgagee, by virtue of the Mississippi statute [Sec. 5695, supra], was entitled to the entire proceeds of the policies, less costs, -attorneys’ fees, and agents’ premiums — since the mortgage indebtedness was greatly in excess of the amount due under the policies.
Appeals were taken by the Collector of Internal Revenue, and by the assignees, Pyles and Breland, with Rosenthal Plywood Sales Company and the insurance companies as -appellees. At the time of the oral argument before this Court announcement was made that the United States had collected its -indebtedness in full from another source and its appeal was thereupon dismissed, leaving as claimants before this
Court only the mortgagee, Rosenthal Plywood Sales Company, and the assignees, Pyles and Breland. After the announcement of the disposition of the claim of the United States, counsel for Pyles and Breland abandoned objections and argument as to the propriety of the interpleader suit, and thereupon the contest between these two remaining and rival claimants to the fund centered chiefly on the questions as to whether or not the provisions of Sec. 5695, supra, have the effect of automatically writing a loss payable clause in favor of the mortgagee into each fire insurance policy covering property embraced in a mortgage, and as to what bearing, if any, the aforementioned statute has as to the action of six of the fire insurance companies in attaching loss payable clauses to these policies in favor of the mortgagee in compliance with the unilateral request to the insurers by the attorney for the mortgagee before the date of the fire.
When a divergence of opinion arose among the members of the panel of the Court that heard the initial argument, the case was then referred to the Court en banc, before which the case was reargued.
On the reargument counsel for the assignees conceded that they had theretofore attempted to waive all questions as to the propriety of the interpleader
Apropos this subject it is noted that no question was argued before us as to the amount of the fire loss nor as to any failure of the insurance companies to tender into Court the sum of $14,133.33, the entire amount of the loss as shown in the proofs as submitted by the insured. Unless there is a claim in the pleadings of double liability against the insurance companies under the policies of insurance, no single interpleader plaintiff had a liability in excess of $3,000 such as would have been requisite had the suit been brought as one in strict interpleader under the law in effect prior to the enactment of .the Federal Interpleader Statute or the adoption of Federal Rules of 'Civil Procedure 20(a), 22(1) and (2). This, however, was not brought as a suit in strict interpleader under the ancient rules of practice but was in complete conformity with the provisions of the Federal Interpleader Statute as amended in 19364 and as supplemented by Rule 22, F.R.C.P., and in effect at the time of the bringing and disposition of the suit in the lower Court, which require that:
1. Plaintiff must have custody or possession of money or property, or must have issued a policy or other instrument having a value in excess of $500.
2. Two or more adverse claimants, who are citizens of different states, claim themselves to be entitled to such money or property or to one or more of the benefits arising by virtue of a policy or other instrument.
3. Deposit of such money or property, or the amount or value of such instrument, be made into the registry of the Court or bond given therefor.
4. Such suit be brought in the District Court where one or more of such claimants resides or reside.
The joinder of the plaintiffs under Rules 18(a), 19(a), 20, and 22(1) of F.R.C.P., whereby plaintiffs each assert a right to relief arising out of the same series of transactions or occurrences involving a question of law and fact common to all the plaintiffs, was proper. Each plaintiff had •issued a policy of insurance having a value in excess of $500, all of which was claimed by Rosenthal Plywood Sales Company, a citizen of a state different from that of any other claimant, and each other claimant asserted a right tO' all or a part of the benefits of the insurance policies. The amount now admitted by all to 'be due for the fire loss was deposited into the registry of the Court, or the equivalent bond given therefor. The suit was brought in the district where one or more of the claimants resides or reside. The plaintiffs, although not required to do so,5 stood neutral as to the amount paid into Court. The claims of the conflicting claimants arising out of obligations of the insured to pay out of the proceeds of the policies a mortgage on the one hand and to pay attorneys’ fees on the other, have a common origin, although the Court could have entertained the suits even though the claims were adverse to, or independent of, one another.6
We think that under Sec. 901 of Title 28 U.S.C.A.6a, Sec. 2410, Title 28 U.S.C.A., New Judicial Code, the Court from the beginning of the litigation had jurisdiction of the United States. This section provided that: “Upon the conditions herein prescribed * * * the consent of the United States is given to be named a party in any suit which is now pending or which may hereafter be brought [223]*223in any United States district court, * * * and in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real estate or personal property, for the purpose of securing <m adjudication touching OMy mortgage or other lien the United States muy have or claim on the premises or personal property involved [Emphasis added.]
Here the United States claimed a lien upon the proceeds of insurance policies. Therefore, an adjudication touching a lien the United States claimed on the personal property involved was sought. The United States was notified in accordance with the statute, entered the case, and sought to have the lien adjudged in its favor. Thus, as the Court below held, it had jurisdiction of the United States.
This was a statutory interpleader and not a case of pure interpleader. The plaintiffs stood neutral only as to- the. sum of $14,133.33, the amount of the fire loss as adjusted, but they did-not stand neutral on claims of the assignees, Pyles and Breland, in excess of that sum. The assignees sued plaintiffs in the State Court for $17,-000, the face value of the policies. The declarations there filed against the insurance companies, which were identical except as to name and amount, one of which was attached to the bill of interpleader, show that they claimed $2,500 -from each insurance company instead of $2,078.43, the amount deposited by each company, except one, which deposited a smaller sum. This declaration was made a part of the bill of interpleader. As to the difference between $14,133.33, so deposited, and $17,000, -so claimed, the plaintiff insurance companies did not stand neutral, but defended against such additional demands. Moreover, when the assignees filed their answer in the interpleader suit they reiterated this claim of a right to recover the full face of the policies in the sum of $17,000. They also asserted an independent liability on the part of the insurance companies from its liability to any other claimant. Their answer denied that the insurance companies were disinterested stakeholders. The United States and Plywood signed a stipulation that the sum of $14,133.33 was the correct amount of the appraised loss of the insured property but assignees did not sign same. Since the assignees had claimed $17,000 rather than the amount of the loss, the insurance companies were not dismissed upon holding by the Court below that it was an appropriate case for interpleader. They were required to stay in the case and introduce the testimony on final hearing of the insurance adjuster as to the damage caused to the property by the fire. Under these facts we cannot properly call this a case of pure interpleader. It seems to be merely a statutory interpleader wherein the plaintiffs need not stand neutral as to all of the claims of all of the parties.
The lack of neutrality in -these circumstances seems to differentiate this case in one respect from the case of Cramer v. Phoenix Mut. Life Ins. Co. of Hartford, Conn., 8 Cir., 91 F.2d 141, 146, wherein it was held that the claimants were the real contestants and that a plaintiff who was a mere stakeholder was somewhat of a nominal party whose citizenship did not determine jurisdiction, since in the present case the plaintiffs were not mere stakeholders as to the claim asserted by the assignees in excess of the deposit. But the Cramer case strongly supports our view that all the adverse claimants' are not required to be citizens of different states. In that case the Court, speaking through Judge Gardner, said:
“Appellants ably argue that citizenship of the same state of two of a large number of adverse claimants is fatal to the jurisdiction of the federal court, but we think the question has been put to rest by the recent decision of the Supreme Court in Dugas v. American Surety Co., [300 U.S. 414], 57 S.Ct. 515, 516, 81 L.Ed. 720. That case arose under the same statute as that here involved. It affirms a decision of the Circuit Court of Appeals of the Fifth Circuit, reported in 82 F.2d 953. In the bill of interpleader it appeared that there were a large number of adverse claimants whose claims in the aggregate exceeded the amount due from the interpleader. * * * There were in fact a large number of [224]*224claimants residents of Louisiana, where the suit was brought. In the opinion of the Circuit Court of Appeals, 82 F.2d 953, it is said, ‘ * * * Some of the claimants now are, and at all times mentioned in the bill were, citizens of named states other than Louisiana, and some of these claimants now are, and at all times mentioned in the bill were, citizens of the state of Louisiana.’
“In the course of the opinion of the Supreme Court it is noted that, ‘Many other claims arising out of insurance written in Louisiana by the Lumbermen’s Reciprocal Association were asserted under the qualifying bond.’
“It is also said, ‘Plainly the court had jurisdiction of both the subject-matter and the parties. * * * ’
“Again it is said: ‘The jurisdiction to entertain the supplemental bill is free from doubt.’ ”
In the present case there was diversity of citizenship between all plaintiffs and all defendants; there was a real controversy between all claimants; there was diversity between Plywood, a citizen of Illinois, and all other claimants, except the United States, against whom diversity was not requisite. Plywood claimed the entire fund. Pyles and Breland claimed more than the entire fund. There was no way for any of the parties to be re-aligned on the same side as to the amount paid into' the registry of the Court unless the receiver of the insured and his assignees could have been. Since the insurance companies were required to1 stay in and defend against the suit of Pyles and Breland for a sum in excess of the amount paid into Court they were necessary parties and fulfilled the constitutional purpose as to suits between citizens of different states.
We hold, however, that even if the plaintiffs in the interpleader suit 'had been dismissed before final decree and had gone out of the case, the requirement of the statute would be met if there were two or more claimants who were citizens of different states regardless of how many claimants there might be who were citizens of the same state with other claimants. We think this question has been settled by two decisions of this Court. In Dugas v. American Surety Co., 5 Cir., 82 F.2d 953, we said: “Some of the claimants now are, and at all times mentioned in the bill were, citizens of named states other than Louisiana, and some of these claimants now are, and at all times mentioned in the bill were, citizens of the state of Louisiana.” and, so saying, held that there was jurisdiction of the interpleader suit. On appeal, 300 U.S. 414, text 425, 57 S.Ct. 515, 519, 81 L.Ed. 720, the Supreme Court said: “Plainly the court had jurisdiction Of both the subject-matter and the parties.”
Our other case is Maryland Casualty Co. v. Glassell-Taylor & Robinson, 5 Cir., 156 F.2d 519, 521, in which the plaintiff was a corporation of Maryland, but the citizenship of the defendants was as shown below:
The contractors were citizens of Louisiana; Harris Associates, Inc., was a citizen of Delaware; Workman was a citizen of Texas; Krause & Managan, Inc., was a corporation of Louisiana; Mitchell was a citizen of Texas; Mid-Continent Supply was a citizen of Delaware; Hydraulic Development Corporation was a citizen of Massachusetts; Ray was a citizen of Louisiana; W. S. Dickey Clay Mfg. Co. was a citizen of Louisiana; McWane Cast Iron Pipe Company was a corporation of Alabama. We said: “There“was the diversity of citizenship between plaintiff and claimants as is required * * * in an inter-pleader suit under Sec. 41 (26), Title 28 U.S.C. A.” notwithstanding the fact that there were six adverse claimants residing in Louisiana.
In Railway Express Agency v. Jones, 106 F.2d 341, 344, the Seventh Circuit said, in reference to diversity of citizenship between adverse claimants in an interpleader suit that: “It was not necessary that there be complete diversity of citizenship among all the adverse claimants. Cramer v. Phoenix Mutual Ins. Co., 8 Cir., 91 F.2d 141.”
See also Girard Trust Co. v. Vance, D.C., 5 F.R.D. 109. In Blackmar v. Mackay, D.C., 65 F.Supp. 48, 51, to the same effect, there is this statement: “Professor Chafee, [225]*225the draftsman of the 1936 Act, approves of such interpretation for in an article written immediately after the adoption of the 1936 Act in 45 Yale L.J. at page 975 he stated: ‘jurisdiction exists if the statute can be construed to require only that two adverse claimants must be citizens of different states. Such an interpretation conforms to the general purpose of the 1936 Act, that the United States courts should be given power to settle all interpleader cases that cannot be handled by the state courts. This view is supported by five cases under the 1917 and 1926 Acts, which granted inter-pleaders where some antagonistic claimants were apparently co-citizens. The liberal attitude adopted by the courts in giving relief under former interpleader acts may be adopted as well toward the Act of 1936.’ ”
In Fireman’s Fund Ins. Co. v. Irwin, D.C., 82 F.Supp. 180, 182, Judge Underwood, holding to the same effect, stated: “However, in my opinion, the action is maintainable as one in the nature of a bill of interpleader under Section 41(26) [now §§ 1335, 1397, 2361] of Title 28 U.S.C.A., and Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A., although there is not complete diversity of citizenship among all the defendants. Maryland Casualty Co. v. Glassell-Taylor & Robinson, 5 Cir., 156 F.2d 519; Mallers v. Equitable Life Assur. Soc., 7 Cir., 87 F.2d 233, certiorari denied 301 U.S. 685, 57 S.Ct. 786, 81 L.Ed. 1343; Blackmar v. Mackay, D.C., 65 F.Supp. 48; Cramer v. Phoenix Mut. Life Ins. Co. of Hartford, Conn., 8 Cir., 91 F.2d 141, certiorari denied 302 U.S. 739, 58 S.Ct. 141, 82 L.Ed. 571.”
In Moore’s Federal Practice, Volume 2, page 2210, Sec. 22.08, speaking of jurisdiction under the Federal Interpleader Statute, it is said: “It has been rather definitely settled that if there is diversity of citizenship between two adverse claimants the co-citizenship of another rival claimant will not defeat jurisdiction under the Act.”
He cites in support of the foregoing text the following cases: Cramer v. Phoenix Mut. Life Ins. Co. of Hartford, Conn., 8 Cir., 1937, 91 F.2d 141, 146 et seq., cert. den. 1937, 302 U.S. 739, 58 S.Ct. 141, 82 L.Ed. 571, reh. den. 1937, 302 U.S. 778, 58 S.Ct. 263, 82 L.Ed. 602; Dugas v. American Surety Co., 5 Cir., 1936, 82 F.2d 953, aff’d 1937, 300 U.S. 414, 57 S.Ct. 515, 81 L.Ed. 720, reh. den. 1937, 301 U.S. 712, 57 S.Ct. 787, 81 L.Ed. 1365; Pac. Mut. Life Ins. Co. v. Lusk, D.C.W.D.La.1930, 46 F.2d 505; Globe & Rutgers Fire Ins. Co. of N. Y. v. Brown, D.C.W.D.La.1931, 52 F.2d 164.
If in the face of these decisions we were in any doubt that Congress, in the enactment of the Federal Interpleader. Statute — Which was designed to bring into one court all of the claimants to a particular fund so that it could be equitably divided among all rather than being a race to the swift — , intended so to restrict the statute that there could be only one claimant to the fund per state, that doubt would be put at rest by subsection (b) of the Federal Interpleader Act of 1936, under which this case was filed and tried, which, in defining the venue of interpleader suits, provides: “(b) Such a suit may be brought in the district court of the district in which one or more of such claimants resides or reside.” [Emphasis added.] for it is obvious that if there could be only one adverse claimant per state there certainly could not be more than one of such claimants in any court district, since federal court districts do not extend across state boundaries.
The relief sought by the plaintiffs was the prevention of double liability and a multiplicity of suits as designed by the Act. See Maryland Casualty Co. v. Glassell-Taylor & Robinson, et al., 5 Cir., 156 F.2d 519, and National Fire Ins. Co. v. Sanders, 5 Cir., 38 F.2d 212.
Thus it appears that the suit falls squarely within the Federal Interpleader Statute and the Court below was not without the jurisdiction conferred thereby.
This conclusion brings us to a consideration of the merits of the case.
There was no clause written into the mortgage or into the policies providing for the payment of any losses occurring thereunder to the mortgagee, in the event of a fire. Such clauses were, however, added as riders to six of the policies upon request. [226]*226by counsel for the mortgagee to the insurance companies some time after the execution of the policies and prior to the fire. This request appears to- have 'been unilateral, or not joined in by the insured. But Plywood contends that its right to recover does not depend entirely upon such loss payable clause rider thus added to the policies but that it is entitled to recover by virtue of the Mississippi statute, Sec. 5695, supra, which, it insists, writes into every fire insurance policy on property included in a mortgage the New York Standard loss payable clause. The lower Court agreed with this contention. The pertinent parts of this statute are as follows:
“§ 5695. Mortgage clause. — Each fire insurance policy on buildings taken out by a mortgagor or grantor in a deed of trust shall have attached or shall contain substantially the following mortgagee clause, viz.:
“Loss or damage, if any, under this policy, shall be payable to (here insert name of the party), as . Mortgagee (or trustee), as . interest may appear, and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any .foreclosure or other proceedings or notice of sale relating to the property, nor -by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy, and in case the mortgagor or owner shall neglect to pay any premium due under this policy the mortgagee (or trustee) shall, on demand, pay the same; * * * ”
If, as the mortgagee contends, the foregoing statute automatically writes into each fire insurance policy on mortgaged property the regular New York Standard mortgage loss payable clause, then the mortgagee should prevail because its rights would be prior in time and superior in right to those of the assignees who stand in the shoes of the insured. It appears that the assignments of the proceeds of the policies were made after the fire and for the purpose of making- compensation to Pyles and Breland for services rendered by them to the insured as his attorneys. The lower Court found that the insured was indebted to Plywood in the sum of $39,961.95, as evidenced by a valid judgment rendered in a state court against the insured in favor of the mortgagee. Any sums recovered in this action by Plywood must, of course, be applied in reduction of the mortgage indebtedness of the insured. It -is obvious that the insured has no right, legal or otherwise, to have his mortgage indebtedness thus reduced and at the same time also to 'have his indebtedness to his attorneys paid or reduced by another or double, recovery under the policies of insurance for -the same fire loss.
In Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So, 729, 732, 25 L.R.A.,N.S., 1226, Ann.Cas.1912B, 262, the Supreme Court of Mississippi, in a case involving the statute in question, said: “No additional consideration is required to be paid as a condition for the insertion of the mortgage clause in the insurance policy, nor is any additional risk incurred by the insurance company. The consideration paid by the original insurer constitutes a sufficient and valuable consideration for the contract between the insurance company and the mortgagee, since it imposes no increased hazard; nor does it increase the amount of the insurance contract, but merely imposes upon the in1 ■surance company the obligation of paying to the mortgagee, in the place of the insured and out of the proceeds of the policy, such sum, not in excess of the face value of the policy, as the interest of the mortgagee, in the identical thing insured, shall amount to.” [Emphasis added.]
In Aetna Insurance Co. v. Cowan, 111 Miss. 453, 71 So. 746, 748, the Supreme Court again decided the question as to whether or not the insertion of a loss payable clause by the insurance company in favor of the mortgagee created a new and independent contract for an additional or double liability. The Court said:
“The main contention of the plaintiff is * * * that the loss payable clause constitutes a new and independent contract in no way dependent upon the original policy [227]*227between the owner and the insurer, and that consequently the plaintiff was not bound by the appraisement agreement in the policy. We do not think this contention is sound. The mortgagee’s contract and his rights thereunder are the same as the rights of the insured, except as modified by section 2596 of the Code of 1906 prescribing a form of mortgage clause to be written in all policies, and providing that the mortgagee shall not be subject to certain forfeitures therein enumerated which the insured is subject to. The provisions of this section of the Code are written into every policy containing a mortgage clause by operation of law. The section in question automatically writes itself into the insurance contract. [Emphasis added.] * * *
"It may be true that a new and independent contract is made between the mortgagee and the insurance company by the insertion of the mortgage clause, but after all the policy itself is the contract between the insurer and the mortgagee. It is upon the policy and its terms that the mortgagee mu-st recover in the event of loss, and the only difference between the contract of the mortgagee and the assured are the provisions of section 2596, which writes certain provisions into every mortgage clause, relieving the mortgagee from cirtain forfeitures that may be incurred by the assured. It is upon that policy that the mortgagee must recover if at all. If, as he insists, there exists an-independent contract between himself and the insurer, where are the terms of that contract to be found except in the policy of insurance? The policy designates the kind of insurance undertaken. The policy designates the property the policy covers. The policy names the maximum amount recoverable thereunder. If the mortgagee has an independent contract of insurance from that of the assured, the terms of the contract nevertheless are the same, except as modified by law. By an independent contract, however, om court meant nothing more than, if the policy of insurance is void as between the insurance company and the assured on account of some act or omission on the part of the assured, that nevertheless it will be valid and binding between, the insurance company and the mortgagee. Except for section 2596 mortgage clauses would probably be so written that the mortgagee, though not himself at fault, could not recover in any case where the assured himself could not recover.” [Emphasis added.]
In Hennessey v. Helgason, 168 Miss. 834, 151 So. 724, 725, the Supreme Court of Mississippi explained its position in the Bacot case by saying: “In Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So. 729, 25 L.R.A.,N.S., 1226, Ann.Cas.1912B, 262, it was held that the mortgage clause of the statute above referred to has the effect of making an independent contract in favor of the mortgagee. In other words, the effect is to issue two policies, one to the mortgagor for the difference between the mortgage debt and the amount of the policy and the other in favor of the mortgagee to the extent of Ms debt.” [Emphasis added.]
The decisions in Aetna Ins. Co. v. Cowan, supra, and in Hennessey v. Helgason, supra, were written subsequent to the decision in the Bacot case, supra, and in explanation of the meaning of language used in the Bacot case that tended to leave the impression that the insertion of a loss payable clause in a policy of insurance was the equivalent of the issuance of two policies of insurance and the making of an independent contract, and it now clearly appears that under the later decisions of the Mississippi Supreme Court, and even under the Bacot case, it was never intended that there would be any increase in the amount of the insurance contract in excess of the face value of the policy, and that the loss payable clause merely had the effect of rendering the insurer liable to the mortgagee to the extent of his debt and to the insured for the difference, if any, between such debt and the amount due under the policy.
Since the insured could not have this double benefit and since the assignees must stand in his right, it necessarily follows that the assignees cannot also recover against the insurance companies if the mortgagee has the prior right to such [228]*228recovery. The mortgagee does not stand in the shoes of the insured mider a clause providing for payment of any loss occurring under the policy to the mortgagee for it has been held by the Supreme Court of Mississippi, and by courts generally, that under a New York Standard mortgage loss payable clause the mortgagee may recover notwithstanding the fact that the insured mortgagor could not have recovered because of his having caused the fire or otherwise having breached covenants and warranties of the policy.
The last phase in the consideration of this case is as to whether or not Sec. 5695, Miss. Code of 1942, automatically becomes a part of every fire insurance policy insuring property on which there is a mortgage or deed of trust. This Court is bound by the pertinent decisions of the Supreme Court of Mississippi. We note that in Aetna Ins. Co. v. Cowan, supra, the Mississippi Supreme Court, in discussing the effect of Sec. 5695, supra, said: “The provisions of this section of the Code are written into every policy containing a mortgage clause by operation of law. The section in question automatically writes itself into the insurance contract.”
In Bacot v. Phoenix Ins. Co., supra, the Court, in discussing the pertinent section of the Mississippi statutes, said: “When a mortgage clause is inserted in an insurance policy, its effect is limited and controlled by section 2596 of the Code of 1906, and the rights of the parties are determined by the provisions of the above statute, which automatically writes itself into every insurance contract where the insurance company allows a mortgage clause to be inserted. * * * The rights of the mortgagee under this policy turn upon a construction of this statute, and, if the mortgagee is entitled to recover, it is by virtue of this statute and independent of the provisions contained either in the original policy or the mortgage clause, in so far as same may conflict with the statute.”
See also Hartford Ins. Co. v. J. R. Buckwalter Lumber Co., 116 Miss. 822, 77 So. 798.
In Tucker Printing Co. v. Board of Supervisors, 171 Miss. 608, 158 So. 336, 338, the Supreme Court of Mississippi said: " * * * The law in force at the time the contract was made forms a part of it, and is written into the contract as much as if expressly incorporated therein. Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793; Ennis Waterworks v. City of Ennis, 233 U.S. 652, 34 S.Ct. 767, 58 L.Ed. 1139; Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606; Louisiana ex rel. Southern Bank v. Pilsbury, 105 U.S. 278, 26 L.Ed. 1090; White v. Hart, 13 Wall. 646, 20 L.Ed. 685; Gunn v. Barry, 15 Wall. 610, 21 L.Ed. 212; In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; Selover, Bates & Co. v. Walsh, 226 U.S. 112, 33 S.Ct. 69, 57 L.Ed. 146; Murray v. Charleston, 96 U.S. 432, 24 L.Ed. 760; Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403; McCracken v. Hayward, 2 How. 608, 11 L.Ed. 397; Price v. Harley, 142 Miss. 584, 107 So. 673.”
The wording of the first paragraph of the statute is that: “Each fire insurance policy on buildings taken out by a mortgagor or grantor in a deed of trust shall have attached or shall contain substantially the following mortgagee clause.” [Emphasis added.]
We cannot rewrite these unambiguous and mandatory words. They are such, in our opinion, as to expressly, and without more, cast upon the insured mortgagor the duty to have attached to an insurance policy taken out by him the statutory loss payable mortgage clause in favor of his mortgagee, and also impliedly to make it the duty of the insurer likewise to comply with the statute. Since it is the duty of the mortgagor and of the insurer to have attached or inserted such a loss payable clause, then that which the statute requires to be done will be regarded as having been done. The statute does not require the consent of the insured; it does not require the mortgagor to take out a policy of insurance but only that if he takes out a policy on buildings covered by a mortgage such policy shall contain a New York Standard loss payable clause in favor of the mortgagee. The statute being unambiguous, [229]*229we are not called upon to determine whether or not the Legislature intended by such enactment to prevent fraud, lessen the temptation to arson, or to facilitate the lending of money by giving better protection to banks and money lenders by allowing the lender to recover against the insurance company even though the insurance company might have been a'ble to defeat a recovery by the insured because of his breach of covenants, etc. Because of the fact that insurance vitally affects the public interest it has from time immemorial been closely and rigidly regulated and we cannot hold that the Legislature of the State, in the exercise of its police power, could not lawfully pass such a statute.
Quotations hereinabove from state decisions are to the effect that “the section in question automatically writes itself into the insurance contract”, in the light of which we cannot say that the loss payable clauses issued or agreed to be issued, by the insurance companies without the consent of the insured were invalid, nor that because the insurance companies complied with the obligation placed upon them by the statute they thereby 'became liable for the entire loss to the mortgagee and also to the insured, or his assignees.
There is only one mortgage or deed of trust, and all parties knew of the existence of it. If the words of the statute mean what they say they have placed in the mortgagee a superior right over the mortgagor to the proceeds arising from the fire damage. By the same token the assignees, who were not in the category of bona fide purchasers, have no greater right, but must stand in the shoes of the assignor.
The judgment of the lower Court is affirmed.
. After making this waiver on the morning of the original argument counsel for appellants thereafter consented in the Court below to the making of the following order by the lower Court with the result that between the first and second arguments of the case the Court bolow on May 2nd made and entered the following order from which no appeal was taken:
“This Day this cause came on by consent of and under an agreement of all of the parties hereto, and it appearing unto the Court that the appellants, Dixon L. Pyles and Dan E. Breland, Have Abandoned All Contentions Against The Insurance Company Appellees And Have So Advised The United States Court Of Appeals For The Fifth Circuit and that there is no objection on the part of any of the parties hereto to the payment out of the funds held in the registry of the Court in this cause of the attorney’s fees and expenses allowed by this Court to "Watkins & Eager as attorney for the insurance company appellees, plaintiffs herein, in the amount of $1,000100.
“It is, therefore, ordered and adjudged that the Clerk of this Court be and he is hereby authorized and directed to pay to Watkins & Eager as attorneys for the plaintiffs herein the sum of $1,000.00 as attorney’s fees and expenses out of the funds held in the registry of the Court in this cause.”