28 Minn. 166 | Minn. | 1881
The policy in controversy in this action was issued upon the application of Lorenzo Allis, the plaintiff’s husband, whose life was insured, and the ten premiums which the policy called for have been paid by him. By the terms of the policy the insurance money was made payable, upon the death of the life insured, to the plaintiff, or in case of her death before his, then to their children.
A glance at the opinion of this court in the case cited will show that these findings in no way affect its applicability to this case; for, whether the rights and powers of Lorenzo Allis and of the plaintiff in respect to assigning or pledging the policy depend upon the laws of Connecticut, where it was issued, or upon the laws of this state, the result, so far as the findings quoted are concerned, is the same. That is to say, there is nothing in these findings tending to show that the law of Connecticut, as to the assignment and pledge of policies upon. the life of a husband for the benefit of a wife, differs from what is
2. On January 14, 1875, Lorenzo Allis made and delivered to one Turrell two promissory notes, payable to Turrell’s order, — one for $586.90, payable 60 days after date, without grace; and the other for $3,500, payable six months after date, both with interest at 12 per cent, per annum. These notes were, as found by the trial court, given for a prior indebtedness of the maker (Allis) to Turrell, and in "the business and for the benefit of Allis, and not in the business or in any manner for the benefit of the plaintiff, which fact Turrell well Anew. At the same time, (January 14, 1875,) Allis and the plaintiff, .at his request, executed and delivered to Turrell a written assignment of the policy in controversy, “to secure” (in the words of the assignment) “the payment of two certain notes made by the said Lorenzo Allis,” the assignment describing in detail the two notes above mentioned. The assignment further provided that if the said notes were not paid within two years and six months from date, Turrell might surrender the policy, and receive the full surrender value, and pay the notes from the proceeds; and if Allis should decease at any time before the notes were paid, Turrell was authorized to receive from the insurance money the sum due on the notes, and upon their payment the assignment was to be void. When the note for $586.90 became due, it was satisfied and cancelled and surrendered to Allis. When the $3,500 note became due, (July 14, 1875,) Allis gave Turrell in
It is found — though it does not seem important — that there was no-express agreement between Lorenzo Allis and Turrell, respecting the policy, except that contained in the assignment; but the policy remained in Turrell’s hands, and it was tacitly understood between them that it remained as security for the payment of the new notes as they were given. Through sale of the note for $2,610.07, and assignment of the policy as security for the same, by Turrell and his vendee, the note and policy came into the hands of the defendants, who are now in possession of the policy. From the facts found it is clear that Mrs. Allis, the plaintiff, in assigning the policy as security for her husband’s sole debt, of which fact Turrell was cognizant, became at most merely surety for her husband. Her rights are, therefore, at least those of a surety. The time for the payment of the debt for which she thus became surety was twice enlarged without her knowledge or consent, even if it was not actually paid by the surrender of the old note and the taking of the new notes in its place. This énlargement or extension discharged the surety (the plaintiff) and set her policy free. Wheaton v. Wheeler, 27 Minn. 464. This result is not prevented by the provision in the assignment giving Turrell authority to “realize” from the policy in case the original notes were not paid within two years and six months
3. One other question remains to be considered: Is the plaintiff entitled to the possession of the policy, so that she can maintain this action, her husband living ? The plaintiff and the children of herself and her husband are the beneficiaries of the policy. It belongs to them. They are not beneficiaries in common, because the plaintiff, if she survive her husband, is the primary and exclusive beneciary; but they have a common interest in its preservation, and in preventing its surrender, or any other act or neglect in regard to it by which their rights may be prejudiced. They therefore occupy, not exactly the position of- tenants in common, but a position sufficiently analogous to enable them jointly to maintain an action for its possession. If so, then either of them can maintain such action against mere strangers having no right to such possession, like the defendants; at least when, as in this case, no objection for want of proper parties plaintiff is taken by demurrer or answer. Miller v. Darling, 22 Minn. 303. These are all the matters which it appears to us to be necessary to consider upon this appeal.
From what we have said, it follows, in our opinion, and substantially as found by the court below: (1) That Lorenzo Allis had no authority to assign or pledge the policy, so that- any understanding in regard to it between him and Turrell was without effect upon the policy; (2) that the plaintiff, in making the assignment, was, to the extent of hér right in the policy, no more than the surety of her husband ; (3) that the taking of the new notes, in lieu of the surrendered old note, was an extension of the time of payment of the debt, for which the plaintiff pledged the policy, and therefore operated to discharge the suretyship and release the pledged policy; (4) that the plaintiff is entitled, at least as against mere strangers, to maintain this action to recover possession of the policy.
Judgment affirmed.