May 21, 1997Third DivisionNo. 1-94-3161STATE FARM GENERAL INSURANCE CO.,       )As Subrogee of VITO DEFRANCESCO,        )                                   )     Plaintiff-Appellee,           )                                   )    Appeal from the Circuitv.                                 )    Court of Cook County.                                   )NANCY STEWART,                     )                                   )     Defendant-Appellant,               )    Honorable                                   )    Aaron Jaffee,and                                )    Judge Presiding.                                   )HARTFORD INSURANCE COMPANY              )OF ILLINOIS,                       )                                   )     Defendant.                         )     JUSTICE GORDON delivered the opinion of the court:      Vito DeFrancesco contracted to sell an apartment buildinglocated in Cicero, Illinois to defendant Nancy Stewart.  AfterDeFrancesco delivered the deed to and possession of the premisesto Stewart, but before Stewart paid him the full contract price,the building was destroyed by fire.  Both Stewart and DeFrancescosubmitted claims to their respective fire insurance carriers, andboth collected insurance proceeds for the loss of the subjectproperty.  Plaintiff State Farm General Insurance Co. (State FarmGeneral), DeFrancesco's insurer, brought this action againstStewart as a purported subrogee to DeFrancesco's right to paymentfrom Stewart for the unpaid contract price on the apartmentbuilding.  State Farm General sought to obtain the fire insuranceproceeds which Stewart had received from her insurer, defendantHartford Insurance Company of Illinois (Hartford), and to enjoinHartford from paying Stewart those proceeds.  State Farm Generallater removed Hartford as a defendant in its first amendedcomplaint, upon learning that Hartford had already paid Stewarton her claim.  State Farm General subsequently filed a motion forsummary judgment against Stewart which the trial court granted. Stewart then filed a post-trial motion to vacate that order whichthe trial court denied.  Stewart appeals from those orders.     The undisputed facts are as follows.  On January 26, 1990,DeFrancesco agreed to sell Stewart an apartment building locatedat 5125 West Cermak Road, Cicero, Illinois.  The contract betweenStewart and DeFrancesco was entitled "Real Estate Sales Contract"in an emboldened typeface, and required Stewart to pay a $75,000purchase price and additionally to assume the obligation to repaya $20,000 loan against the property to the lender, Billy Eaton. Stewart was also required to tender a $6,000 down payment toDeFrancesco, which she paid shortly after entering into thecontract with DeFrancesco.  The contract also contained amortgage contingency provision and a date of closing provision,which provided in pertinent part as follows:     "4.  This contract is subject to the condition that     Purchaser will apply for [a] mtge within 3 months as of     Feb 90 to pay off seller's balance ***.  (Strike     paragraph if inapplicable.)     5.  The time of closing shall be January 26, 1990     prorated as of 2-1-90, or 20 days after notice that     financing has been procured if paragraph 4 is operative     *** at the office of [the] title company."  (Emphasis     in contract.)The sales contract further provided that Stewart "agrees to payor satisfy the balance of the purchase price *** at the time ofclosing ***."  The contract also required DeFrancesco to deliverpossession to Stewart "immediately *** after the sale has beenclosed."  The contract also stated that DeFrancesco agrees "toconvey or cause to be conveyed *** a recordable warranty deed,***."  Upon entering the contract, DeFrancesco turned over thetrustee's deed (which he had received from Stewart in 1987, asdiscussed more fully below), the keys and the rent documents toStewart; informed the tenants they should pay rent to Stewart;did not lease any further units; and did not enter the premisesever again.     Stewart subsequently applied to the Savings of America bankfor a loan to be used to pay DeFrancesco the unpaid contractprice for the apartment building.  On May 11, 1990, the day ofthe fire, Stewart closed on an $80,000 loan from Savings ofAmerica obtained to pay DeFrancesco the $69,000 unpaid balanceowing on the building under their contract.  Stewart depositedthe $80,000 into her personal bank account.  Stewart stated thatupon learning of the fire, her attorney advised her not to payDeFrancesco the balance due on the contract "until we figured outwhat the insurance companies were going to do."     Both parties carried fire insurance policies on theproperty.  Stewart was covered by Hartford, and DeFrancesco, bythe plaintiff, State Farm General.  DeFrancesco's State FarmGeneral policy provided that      "In the event of any payment under this policy, the     Company shall be subrogated to all the insured's rights     of recovery against any person or organization and the     insured shall execute and deliver instruments and     papers and do whatever else is necessary to secure such     rights.  The insured shall do nothing after loss to     prejudice such rights."After the fire, State Farm General paid DeFrancesco $84,649.78for his fire losses, an amount which represented the policylimits plus interest.  Hartford paid Stewart $130,000, for thefire damage sustained.  Stewart then repaid the $80,000 loan, andused a portion of the $130,000 insurance proceeds to pay attorneyfees incurred in defending against other lawsuits arising fromthe fire, the cost of boarding up and later demolishing theburned building, and the Billy Eaton loan.  Although she repaidthe Billy Eaton loan, Stewart did not pay the principal balanceof $69,000 left owing on the contract to the seller, DeFrancesco.     In its second amended complaint, State Farm General claimedthat, pursuant to its payment of insurance proceeds toDeFrancesco after the fire, it was subrogated to DeFrancesco'scontractual right to collect the $69,000 unpaid purchase pricefor the property from Stewart, and that it could collect thatamount out of the insurance proceeds which she had received fromHartford.  In that regard, State Farm General alleged thatStewart and DeFrancesco had entered into a real estate contracton January 26, 1990 for the sale of an apartment building locatedin Cicero, Illinois for $75,000, and that Stewart paid a $6,000down payment required under the contract.  The complaint furtheralleged that the apartment building burned down on May 11, 1990,and that Stewart never paid DeFrancesco the unpaid portion of thepurchase price, $69,000.  State Farm General also claimed that itpaid DeFrancesco $84,649.78 after the fire, that Stewart'sinsurance carrier indemnified her in an unspecified amount afterthe fire, and that as DeFrancesco's subrogee, State Farm Generalwas entitled to $69,000 of Stewart's insurance proceeds. Attached to the second amended complaint as exhibits were asubrogation receipt, which purports to subrogate Defrancesco'srights arising out of the May 11 fire to State Farm Fire andCasualty Insurance Company, another State Farm entity; and anexplanatory affidavit of State Farm General Claim SuperintendentCandace Armstrong regarding that subrogation receipt, both ofwhich are discussed more fully below.     In her answer to the second amended complaint, Stewartalleged that State Farm General could not be subrogated to anyrights that DeFrancesco may have had against her because she didnot cause DeFrancesco's fire losses, and moreover thatDeFrancesco had no insurable ownership interest in the propertyat the time of the fire because he had transferred thoseinterests to Stewart when he contracted to sell her the subjectproperty.  Stewart further alleged that DeFrancesco's State FarmGeneral fire loss policy did not insure him for losses arisingfrom Stewart's failure to pay under the Stewart-DeFrancescocontract of sale, but only for his fire-related losses.  Stewartalso denied that State Farm General was DeFrancesco's subrogeeinsofar as the aforementioned subrogation receipt, attached as anexhibit to plaintiff's second amended complaint and discussedmore fully below, designated State Farm Fire and CasualtyInsurance Company as subrogee to DeFrancesco's rights arising outof the fire loss.  Finally, Stewart denied that she held herHartford insurance proceeds in trust for State Farm General, andstated that, in any event, she owed less than $69,000 toDeFrancesco on the building sale contract.     Attached to Stewart's answer to plaintiff's complaint wasthe affidavit of DeFrancesco.  In that affidavit, DeFrancescoaverred that Stewart originally conveyed the subject property tohim in 1987 by means of a trustee's deed.  DeFrancesco furtherstated that when he acquired the property from Stewart he assumedthe duty to make payments to Billy Eaton between 1987 and 1989. He also stated that on January 26, 1990, he entered into a realestate sales contract with Stewart to transfer the property backto her, and received a $6,000 down payment from her pursuant tothe contract.  At that time, Stewart agreed to assume the Eatonloan repayments.  DeFrancesco further averred that on January 26,1990, he turned over the title, keys and rent documents toStewart, informed the tenants they should pay rent to Stewart,did not lease any further units, and did not enter the premisesever again.     Stewart also separately filed an affirmative defense,wherein she alleged that title to the subject property was in aland trust at the time of the fire, and that the records of theCook County Recorder of Deeds reflected that fact.  She furtherstated that she notified State Farm General before the May 11fire that she "held the equitable title to the premises" inquestion.  Stewart also alleged that DeFrancesco therefore had noinsurable interest in the subject property at the time of thefire, and that nevertheless, State Farm General carelessly andwithout any legal obligation to do so indemnified DeFrancesco forhis loss arising from the fire.  Finally, Stewart alleged thatshe had paid her own insurance premiums to Hartford, that StateFarm General had not, and that therefore, State Farm Generalcould not claim the benefits of her Hartford policy.     State Farm General subsequently filed its motion for summaryjudgment.  In that motion, State Farm General argued that bypaying DeFrancesco's fire insurance claim, it became subrogatedto DeFrancesco's contractual rights against Stewart.  In supportof its motion for summary judgment, State Farm General re-submitted the aforementioned "subrogation receipt" together withthe explanatory affidavit of State Farm General ClaimSuperintendent Candace Armstrong which were attached as exhibitsto plaintiff's second amended complaint; excerpts of Stewart'sdeposition testimony; the DeFrancesco-Stewart contract of sale;and a Certificate of Insurance which reflects that Hartfordinsured Stewart on the subject property for $130,000.  Asdiscussed above, the subrogation receipt stated that DeFrancescohad subrogated all of his rights with respect to his May 11, 1990fire loss to the State Farm entity indicated at the top of thatreceipt.  In that regard, at the top of the receipt are listedseveral State Farm entities with boxes next to the name of eachentity.  The box next to plaintiff's name, State Farm GeneralInsurance Co., is not checked.  Instead, the adjacent box ischecked, indicating that a different State Farm entity, "StateFarm Fire and Casualty Ins. Co.," paid DeFrancesco for his fire-related loss and was therefore the subrogee of DeFrancesco'srights arising out of the fire.     The Armstrong affidavit specifies that plaintiff State FarmGeneral, and not some other State Farm entity, had paidDeFrancesco for his May 11, 1990 fire loss and thereby had becomehis subrogee.  The affidavit purports to explain that plaintiffState Farm General had inadvertently designated the wrong StateFarm entity, State Farm Fire & Casualty Ins. Co., on thesubrogation receipt as the entity which had paid DeFrancesco thefire insurance proceeds.     In her deposition, Stewart testified that she originallyacquired the subject apartment building in 1981 in a land trust,where she held it together with certain other real estate. Stewart used the apartment building as collateral to secure aloan from the aforementioned lender, Billy Eaton.  Stewart statedthat in 1984, she contracted to sell the building to DeFrancesco,and in 1987, after DeFrancesco had paid her for that building,"deeded the property personally to Mr. DeFrancesco."  In sodoing, she directed the trustee to prepare a trustee's deed tothe property for DeFrancesco, and then picked up that deed whichshe then gave to DeFrancesco in exchange for an agreed upon butunspecified cash payment and DeFrancesco's assumption of theEaton loan repayment obligations.  Stewart stated that in late1989 and in early 1990 she and DeFrancesco discussed herrepurchase of the property for $75,000 and her assumption of theEaton loan repayment obligations.  She stated that they enteredinto the aforementioned contract of sale on January 26, 1990 andthat she paid DeFrancesco $6,000 as a down payment.  She furthertestified that DeFrancesco returned the deed to her, but that herattorney advised her not to pay DeFrancesco the unpaid balance of$69,000 on the contract after the fire "until we figured out whatthe insurance companies were going to do."  Stewart alsotestified that she received approximately $130,000 in insuranceproceeds from Hartford for her losses arising from the May 11fire.  Stewart further stated that between 1981 and January 26,1990, the date on which she contracted to purchase the apartmentbuilding from DeFrancesco, Stewart was the only individual tohold a beneficial interest in the land trust in which theapartment building had been held.     In response to State Farm General's motion for summaryjudgment, Stewart submitted the affidavit of an "expert witness,"Richard Kieffer, who stated that if State Farm General hadfollowed the generally accepted procedures employed in theinsurance industry for the adjustment of insurance claims, itwould have known not to pay DeFrancesco on his claim because itwould have learned prior to making that payment that onlyStewart, and not DeFrancesco, had an insurable interest in thesubject property.     The trial court granted State Farm General's motion forsummary judgment, and awarded State Farm General the amount of$69,000.  Stewart filed a post-trial motion seeking vacatur ofthe trial court's summary judgment order, which was denied, andthis appeal ensued.  For the reasons which follow, we reverse.DISCUSSION:     On appeal, Stewart contends that the trial court erred ingranting summary judgment in favor of State Farm General,because, she urges, State Farm General cannot be subrogated toDeFrancesco's contractual rights against her.  In support,Stewart contends that because State Farm General's insurancepayment to DeFrancesco was based on his fire losses and not uponhis contractual losses arising from Stewart's nonpayment of thefull contract price, Stewart's contractual debt to DeFrancescowas collateral to that indemnification payment.  Accordingly,Stewart urges that State Farm General's subrogation toDeFrancesco's rights against Stewart would be unwarranted in theabsence of an express assignment from DeFrancesco of his rightsagainst Stewart.     In addition, Stewart contends that DeFrancesco had noinsurable interest in the subject property at the time of thefire, and that therefore, State Farm General had no legalobligation to indemnify him for his purported fire losses.  Thus,according to Stewart, State Farm General's payment to DeFrancescowas voluntary, thereby precluding any right to be subrogated toDeFrancesco's contractual rights against Stewart.     The right of subrogation may be grounded in equity and mayalso be founded upon an express or implied agreement.  Bost v.Paulson's Enterprises, Inc., 36 Ill. App. 3d 135, 343 N.E.2d 168(1976).  Subrogation is defined as the substitution of oneindividual in the place of a claimant to whose rights he succeedsin relation to the debt or claim asserted which he has paidinvoluntarily.  See generally Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 597 N.E.2d 622 (1992); Reich v.Tharp, 167 Ill. App. 3d 496, 521 N.E.2d 530 (1987); ContinentalCasualty Co. v. Polk Brothers, Inc., 120 Ill. App. 3d 395, 457N.E.2d 1271 (1983); Restatement of Restitution �162 (1937)(subrogation proper where property of one person is used indischarging an obligation owed by another).  An insurer whoindemnifies its insured for a loss may be subrogated to therights of the insured against the party at fault under theequitable doctrine that the economic burden "should be shifted tothe party responsible for the loss."  In re Estate of Ito, 50Ill. App. 3d 817, 823, 365 N.E.2d 1309, 1314 (1977).  See alsoCentral National Bank & Trust Co. v. Central Illinois Light Co.,65 Ill. App. 2d 287, 294, 212 N.E.2d 489, 493 (1965).     The prerequisites to subrogation are:  (1) a third partymust be primarily liable to the insured for the loss; (2) theinsurer must be secondarily liable to the insured for loss underan insurance policy; and (3) the insurer must have paid theinsured under that policy, thereby extinguishing the debt of thethird party.  See generally Dix Mutual Insurance Co., 149 Ill. 2d314, 597 N.E.2d 622; Reich, 167 Ill. App. 3d 496, 521 N.E.2d 530;Polk Brothers, 120 Ill. App. 3d 395, 457 N.E.2d 1271; Restatementof Restitution �162 (1937); Cecil G. King, Subrogation UnderContracts Insuring Property, 30 Tex. L. R. 62 (1952).  However,when, as here, an insurer indemnifies its insured for propertydamage and then seeks to be subrogated to the insured'scollateral contract rights against the third-party purchaser ofthat property not responsible for the loss, "the extent of theright to subrogation is *** difficult to determine *** [and t]hefact that liability of the third party *** does not rest uponfault makes the relative equities of the insurer much lessappealing".  King, 30 Tex. L. R. at 71.  See also Vance,Insurance �134 (3rd ed. 1951); Note, Subrogation of the Insurerto Collateral Rights of the Insured, 28 Colum. L. Rev. 202(1928).     There are three possible alternatives with respect to aninsurer's claim of subrogation against the contract rights of aninsured:  first, a court may permit the insured to keep theproceeds of both the insurance indemnification and the contractprice and deny subrogation; second, a court may give the insurerthe benefit of the collateral obligation; or third, a court maygive the third-party obligor the benefit of the insurance.  Seegenerally King, 30 Tex.L.R. at 71; Note, Subrogation of theInsurer to Collateral Rights of the Insured, 28 Colum. L. Rev. at203.  However, each alternative possesses its own deficiencies:     "To choose the first is to contravene the sound public     policy which dictates that the insured should not be in     a position to profit by a loss lest he be tempted to     cause it, or be careless to prevent it; to choose the     second is to give the insurer a windfall, for its     premiums represented the fair equivalent of an     obligation it contracted to incur without knowledge ***     of the existence of collateral remedies or an abatement     of rates in anticipation of such; to select the third     is to violate the classical concept of the insurance     contract as a personal one and, to some extent, the     cherished privilege of the underwriter to select its     obligor and determine its own moral risk."  28 Colum.     L. Rev. at 204.     While there are no Illinois cases directly in point, thedecisions among the various jurisdictions are divided as to theright of an insurer to be subrogated to an insured's collateralcontract rights.  See, on the one hand,  Universal TitleInsurance Co. v. United States, 942 F.2d 1311 (8th Cir. 1991);Alabama Farm Bureau Mutual Insurance Service v. Nixon, 268 Ala.271, 105 So.2d 643 (1958); Board of Trustees of FirstCongregational Church v. Cream City Mutual Insurance Co., 255Minn. 347, 96 N.W.2d 690 (1959), which bolster Stewart's positionthat no subrogation should be permitted here.  See, on the otherhand, Twin City Fire Insurance Co. v. Walter B. Hannah, Inc., 444S.W.2d 131 (Ky. 1969) which appears to articulate State FarmGeneral's position that it may be subrogated to DeFrancesco'scontractual rights against Stewart notwithstanding the fact thatthose rights are collateral and unrelated to State Farm General'sindemnification payment to DeFrancesco.  See generally Palmer,Law of Restitution, �23.2 (1978).     Having reviewed these authorities, we favor the view that aninsurer who indemnifies its insured for property damage may notbe subrogated to the collateral contractual rights of the insuredagainst a third-party purchaser of the subject property.  Thecase of Board of Trustees of First Congregational Church v. CreamCity Mutual Insurance Co., 255 Minn. 347, 96 N.W.2d 690 (1959),is in point.  In Cream City, the plaintiffs, the trustees of areligious congregation, purchased several fire insurance policiesfrom the defendant insurance company to cover their churchproperty, and later entered into a contract to sell that propertyto the City of Austin, Minnesota.  Prior to the buyer's paymentof the full contract price and the church's transfer of legaltitle, a fire destroyed the property in question.  Plaintiffssubmitted claims for their losses pursuant to the insurancepolicies issued by defendant, and defendant refused payment. Plaintiffs then sued the defendant, who argued that the churchshould not be permitted to recover twice for the same loss bycollecting both insurance proceeds and the unpaid balance on thecontract of sale.  In the event that they were forced to makepayment under the policies, defendants sought to be subrogated toany rights which plaintiffs had against the buyer of theproperty.     In holding that defendant was required to make payment toplaintiffs under the policies and that defendant had no right tobe subrogated to any rights which plaintiffs may have had againstthe buyer, the Cream City court stated as follows:     "it is the universally accepted rule that an insurer     may be subrogated to the insured's rights against any     person wrongfully causing a compensable loss to the     insured.  However, there is no such agreement of     authorities as to the right of the insurer to be     subrogated to collateral contract rights which the     insured has against a third person who did not cause     the loss.  In considering the asserted right of the     insurer to subrogation to the collateral rights of the     insured, certain conflicting considerations come into     play.  To permit the insured to keep the proceeds of     both obligations offends public policy which frowns     upon placing an insured in a position to profit by a     loss which he may be tempted to cause himself or by     carelessness fail to prevent.  On the other hand, to     give the insurer the benefit of the collateral     obligation through subrogation ignores the plain terms     of the insuring agreement and provides the insurer with     a windfall.  Its premiums are assumed to represent the     fair equivalent of the obligation it contracted to     incur without knowledge of the existence of collateral     remedies."  Cream City, 255 Minn. at 347, 96 N.W.2d at     696.The Cream City court concluded that the insurer would not berelieved of its liability under its policies, nor would it beentitled to be subrogated to the rights of the insured againstthe contract buyer, simply because the seller "might havecollateral contracts with third persons which operate to relievethe insured from the loss for which the insurer agreed tocompensate him."  Cream City, 255 Minn. at 347, 96 N.W.2d at 696. In support, the court further noted as follows:     "The most persuasive authority to this court is our own     prior holding in Kahn v. American Ins. Co., 137 Minn.     16, 162 N.W. 685.  In that case it was clearly held     that in an action upon an insurance policy insuring the     lessee against loss to his leasehold the contract     relation between the lessor and lessee and a settlement     of their differences arising from a fire to the leased     premises are matters in which the insurer has no     concern."  Cream City, 55 Minn. at 355, 96 N.W.2d at     697.     The position articulated in Cream City that an insurer maynot be subrogated to the collateral contract rights of itsinsured is consistent with the fundamental principle, alreadynoted, that to be subrogated to the rights of another, aninsurer's indemnification payment to its insured must extinguishthe debt of a third party primarily liable to that insured forhis loss.  See Dix Mutual Insurance Co., 149 Ill. 2d 314, 597N.E.2d 622; Reich, 167 Ill. App. 3d 496, 521 N.E.2d 530; PolkBrothers, 120 Ill. App. 3d 395, 457 N.E.2d 1271; Restatement ofRestitution �162 (1937); Cecil G. King, Subrogation UnderContracts Insuring Property, 30 Tex. L. R. 62 (1952).  Hence,where an insurer is not by its indemnification payment satisfyingthe obligation of the third party, the right of subrogation doesnot attach.       Moreover, the holding in Cream City is consistent with thedecision of our Illinois Supreme Court in First National Bank v.Boston Insurance Co., 17 Ill. 2d 147, 160 N.E.2d 802 (1959). Although Boston Insurance did not involve the subrogation rightsof an insurance carrier, that decision makes clear that theobligation of an insurer to its insured remains independent ofthe obligation of a third-party purchaser to the insured.  InBoston Insurance, the insured entered into a contract to sellcertain property which required a down-payment of $3,000 with thebalance of $16,000 to be paid at the time of closing.  Prior toclosing, the property was destroyed by fire.  Damage from thefire was estimated to be $230,000.  The insurance policies inquestion together had aggregate limits of $46,750, but thecarrier refused to make payment in excess of $16,000, the amountowing on the contract of sale at the time of the fire.     The Boston Insurance court held that the insurance carriercould not avoid or reduce its liability to the insured based upona collateral contract of sale even though the balance due for thepurchase price under the collateral sales contract wassubstantially less than the value of the fire damage as surveyedby the carrier.  The court held that the purchase price in such acollateral contract would not limit an insurer's obligationinsofar as the two obligations are wholly independent of eachother.  In reaching its conclusion, the court stated as follows:     "While it is clear that a vendee can hold a vendor to     the terms of his contract, it is by no means clear that     a stranger to the contract should be allowed to fix     upon the contract price as an absolute measure of the     value of the property.  * * *     [I]f [the carrier] intended to mean that recovery     should be limited by the price fixed in an executory     contract for the sale of the property, it would have     been easy to say so [in the policy]."  Boston     Insurance, 17 Ill. 2d at 151-54, 160 N.E.2d at 804-06.     As in Cream City, here, although State Farm General paidDeFrancesco for his fire-related losses, that payment wasindependent of Stewart's contractual debt to DeFrancesco insofaras Stewart did not cause those losses.  As asserted both in CreamCity and in Boston Insurance, State Farm General's liability toDeFrancesco is wholly separate and unrelated to the obligation ofStewart to pay the balance under the real estate purchasecontract to DeFrancesco.  Therefore, State Farm General'sinsurance payment to DeFrancesco cannot trigger any right toproceed under subrogation against the land purchaser for thepurchase price.  Accord Universal Title Insurance, 942 F.2d 1311;Nixon, 268 Ala. 271, 105 So.2d 643 (holding that insurer has noright to be subrogated to insured's collateral contractual rightswhere to allow subrogation would be to excuse insurer fromobligations created by its collection of premiums).  See King, 30Tex. L. R. at 71 (permitting the insurer to be subrogated to acontractual obligation of an insured "gives the insurer awindfall in that its premiums did not take into considerationsuch collateral remedies").  See also Grant Thornton v. SyracuseSavings Bank, 961 F.2d 1042 (2nd Cir. 1992) (no right ofsubrogation where payment made by purported subrogee to putativesubrogor discharged its own debt, not that of third party).     State Farm General would argue that a denial of its right tosubrogate against the vendee (Stewart) would result in a windfallto Stewart since she recovered from her own insurance carrier(Hartford) and since she did not pay the full contract price toDeFrancesco.  This argument appears to be premised upon a theoryof unjust enrichment.  To state a cause of action upon a theoryof unjust enrichment, a plaintiff must allege that the defendanthas unjustly retained a benefit to the plaintiff's detriment, andthat defendant's retention of the benefit violates fundamentalprinciples of justice, equity and good conscience.  See generallyHPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131Ill. 2d 145, 545 N.E.2d 672 (1989); F.H. Prince & Co. v. TowersFinancial Corp., 275 Ill. App. 3d 792, 656 N.E.2d 142 (1995).  Aplaintiff alleging an unjust enrichment may be seeking to recovera benefit which he gave directly to the defendant, or one whichwas transferred to the defendant by a third party.  HPI HealthCare Services, 131 Ill. 2d 145, 545 N.E.2d 672.  To establishthat the retention of a benefit conferred upon the defendant by athird-party constitutes an unjust enrichment, a plaintiff mustshow that (1) the benefit should have been given to theplaintiff, but the third party mistakenly gave it to thedefendant instead; (2) the defendant procured the benefit fromthe third party through some type of wrongful conduct; or (3) theplaintiff for some other reason had a better claim to the benefitthan the defendant.  HPI Health Care Services, 131 Ill. 2d 145,545 N.E.2d 672.     In the instant case, as already discussed, State FarmGeneral has not established that it directly conferred anybenefit upon Stewart insofar as its indemnification payment toDeFrancesco was collateral to Stewart's contractual debt toDeFrancesco.  Nor, for that matter, has State Farm Generalestablished that Stewart has unjustly retained a benefitconferred upon her by a third party, i.e., the benefit shereceived from her Hartford insurance policy.  State Farm Generalhas failed to establish that it was in any way entitled toStewart's Hartford insurance proceeds due to a mistake, or thatStewart procured those proceeds through any type of wrongfulconduct.  Furthermore, although the record reflects thatDeFrancesco apparently did not proceed in his own right torecover the balance on the purchase price from Stewart, there isnothing in the record to indicate that he did not intend to orthat he would be unable to recover the purchase price fromStewart in the future.  Thus, there is no indication that in theabsence of State Farm General's subrogation action, Stewart willin fact retain the purchase price as well as her own insuranceproceeds.     Stewart also contends that DeFrancesco had no insurableinterest in the subject property at the time of the fire, thatconsequently, State Farm General had no legal obligation toindemnify DeFrancesco and was therefore a volunteer.  SeeAmerican National Bank and Trust Co. v. Weyerhaeuser Co., 692F.2d 455 (7th Cir. 1982) (stating that mere stranger or volunteerwho pays a creditor on a debt for which another is bound cannotbe subrogated to the creditor's rights against the principledebtor).  In response, State Farm General argues that DeFrancescodid have an insurable interest, citing to International InsuranceCo. v. Melrose Park National Bank, 145 Ill. App. 3d 286, 495N.E.2d 1197 (1986), which stated that a seller's interest underan installment agreement is analogous to that of a mortgageewhose insurable interest in the subject property extends to theamount of the unpaid mortgage balance.  In support of its premisethat a mortgagee has an insurable interest in the subjectproperty limited to the amount of the unpaid debt, Melrose ParkNational Bank relies upon Great-West Life Assurance Co. v.General Accident Fire & Life Assurance Corp., 116 Ill. App. 3d921, 452 N.E.2d 550 (1983), which in turn relies upon our supremecourt's decision in Le Doux v. Dettmering, 316 Ill. App. 98, 43N.E.2d 862 (1942).  The court in Le Doux upheld the principlethat a mortgagee has in insurable interest in a property to theextent of the unpaid mortgage balance and that the insurer may besubrogated to that interest against the mortgagor.     Since we have predicated our decision on the theory thatthere can be no subrogation because of the collateral nature ofthe purchaser's contractual obligation, as articulated in CreamCity, we need not determine whether in fact the vendor has aninsurable interest.  Thus, we need not examine the decision inMelrose Park National Bank with respect to the insurable interestargument.  However, we should nevertheless determine whether theholdings in both Melrose Park National Bank and in Le Douxmilitate against our implementation in Illinois of the holding inCream City that an insurer may not subrogate to the claim of itsinsured against his vendee for the real estate purchase price.     State Farm General may well seek to contend that theapproach in Cream City is implicitly rejected in Illinois underLe Doux v. Dettmering, 316 Ill. App. 98, 43 N.E.2d 862 (1942),which permits subrogation by the fire insurer of a mortgageeagainst the mortgagor.  See also Palmer, Law of Restitution�23.4, at 367 (1978) (and citations therein).  State Farm Generalmay wish to contend that in permitting subrogation against themortgagor, Le Doux in effect ignores the principle that aninsurer cannot be subrogated to the collateral contract rights ofits insured.  Seemingly, this proposed contention would becomeeven stronger if we agree with State Farm General's argument thatthere was an equitable conversion here, whereby the vendoracquires a lien interest in the land to secure the purchaseprice.  See Kindred v. Boalbey, 73 Ill. App. 3d 37, 39-40, 391N.E.2d 236, 239 (1979).  In that respect, State Farm Generalmight argue that the vendor's interest would be analogous to thatof a mortgagee.     However, a closer examination of the decision in Le Douxwould reveal that it is not inconsistent with the holding inCream City or with our holding in this case.  In Le Doux, themortgagee initially purchased insurance "as [a] legal holder ofnotes," to protect his security interest in the unpaid balancedue under the mortgage agreement.  Le Doux, 316 Ill. App. at 100,43 N.E.2d at 863.  Before the mortgagor fully repaid hisindebtedness, the mortgaged property was destroyed by fire.  Themortgagee's insurer indemnified him for the unpaid balance dueunder the mortgage agreement and then sought to be subrogated tothe mortgagee's rights against the mortgagor.  The Le Doux courtconcluded that such subrogation was permissible, stating asfollows:     "In cases like the instant one the insurance is     considered as a further security of the debt; and on     the familiar principle that a surety who pays the debt     may resort to the principal debtor for payment, the     insurer is permitted to recover from the mortgagor."      Le Doux, 316 Ill. App. at 110, 43 N.E.2d at 868.The Le Doux court reasoned that the insurance coverage obtainedby the mortgagee extended only to the unpaid indebtedness underthe mortgage agreement, and that the insurer's indemnificationpayment to the mortgagee effectively satisfied the debt of themortgagor.  See also Great-West Life Assurance Co. v. GeneralAccident Fire & Life Assurance Corp., 116 Ill. App. 3d 921, 452N.E.2d 550 (1983) (stating that a mortgagee's insurable interestis prima facie the amount mortgaged and extends solely to theamount of the debt).  Thus, in Le Doux, the sole purpose of theinsurance procured by the mortgagee was to secure payment of theunpaid mortgage balance, and the insurance indemnificationpayment to the mortgagee was in that manner directly tied andlimited to that unpaid balance.     In contrast, here, DeFrancesco's insurance coverage withState Farm General did not purport to have as its purpose theprotection of DeFrancesco's right to collect the unpaid contractprice from Stewart.  Rather, this insurance was procured byDeFrancesco before the property was sold to protect him from fireloss as an ongoing owner of the property.  DeFrancesco'sinsurance was not designed to simply protect his interest as aseller.  In that regard, State Farm General's indemnificationpayment to DeFrancesco of $84,649.78 was not limited to theunpaid balance of the purchase price.  State Farm General paidDeFrancesco the sum of $84,649.78 despite the fact that theactual total contract price was $75,000 and even though theunpaid balance thereon was only $69,000, Stewart having made a$6,000 down payment.  Therefore, regardless whether thecircumstances would suffice to invoke the doctrine of equitableconversion, the basis and rationale in Le Doux for permittingsubrogation (i.e., that the insurance coverage and resultantindemnification payment were expressly keyed to the unpaidmortgage balance) does not exist in the instant case.     Here, as pointed out, there is no question that the insuredacquired his coverage from State Farm General before the sale toStewart.  His coverage therefore was keyed to his generalownership interest rather than to any interest in the unpaidpurchase price.  Even if the doctrine of equitable conversionwould be invocable here, it would only have arisen by o