141 N.C. 117
N.C.
1906
Connor, J.,

after stating the case: In view of the admitted facts in regard to the property rights, or. rather absence of such rights, within the jurisdiction of the courts of this State, we are relieved from the necessity of discussing the affidavits in regard to the management and solvency of the defendant company. Assuming that, upon the facts stated in the complaint, in the light of the decisions of this court in which the same defendant was a party, plaintiff has a valid cause of action, and assuming that defendant is in danger of becoming insolvent, we find ourselves confronted with the difficulty in granting the motion for a receiver by the fact that the company has no assets within this State which could be taken into possession of such receiver. The only rights suggested by plaintiff in this connection are assessments to become due hereafter from policy holders residing in this State. These assessments will not be, when due, debts or choses in action which the defendant could enforce. “The levying of an assessment does not make a member a *120 debtor to the association, authorizing it to bring suit in the event of his neglect or refusal to pay; the only effect of the default is to relieve the association of its obligation to the member.” Cooley on Ins. Briefs, 1013; Ins. Co. v. Stathan, 93 U. S., 24; 2 May on Ins. (3 Ed.), 341. The law, supported by authority, is thus stated in Bacon on Benefit Soc., sec. 857: “In a contract of life insurance there is generally no absolute undertaking of the insured to pay the premiums or assessments, and consequently no personal liability therefor. The payment of the premium or assessment is only a condition precedent of the liability of the company; the insured does not promise to pay the premiums and the company only promises to pay if it has received the agreed consideration. Therefore the insured may pay or not as he pleases; he has the perfect right to do either and need give no excuse for his choice. If he does not pay, the contract is ended.” While the court would be prompt to protect by any process within its power, the rights of a citizen against a foreign corporation and hold any property within its jurisdiction to meet the demand when established by judgment, it will not do a vain tiling and send its officer to chase unsubstantial possibilities. The only effect of the appointment of a receiver in this case would be to embarrass and probably injure other policy holders, without any resultant benefit to plaintiff. If the receiver demanded payment of an assessment and it was refused, he could not enforce its payment— he having no other right against the policy holder than the defendant company has. If he should seek to enjoin payment to the company he would be met with the obstacle that if the courts of this State enjoined such payment, the policy would be avoided for non-payment of assessment. If so declared avoided by the company, this court would have no power to protect the policy holder by mandamus or otherwise. Without pursuing the discussion further, it is manifest that no possible benefit could accrue to the plaintiff, and *121 much, annoyance and injury to innocent persons. “The liability of the members of the mutual insurance companies upon their premium notes, is not increased by reason of the insolvency of the corporation and the appointment of a receiver, since the receiver is merely substituted in place of the directors of the company and vested with their rights and powers and nothing more.” Ald. on Rec., section 372. The power of receiver to enforce assessments made upon unpaid stock is based upon the fact that the delinquent stockholder owes a debt to the company for which it could maintain an action; whereas for an assessment upon an insurance policy, as we have seen, no action could be maintained by the company. Again, it seems to be established by the authorities cited in the well considered brief of defendant’s counsel that such assessments as are levied under the provisions of the policies issued by defendant company are when paid impressed with a trust'for the benefit of the other policy holders. The contract of insurance expressly provides that a certain percentage of the assessments shall be set apart for the purposes set forth therein. We could not, through a receiver, compel the payment of an assessment to be appropriated to plaintiff’s claim in violation of the terms of the contract and the rights of other policy holders. The plaintiff has no lien or specific claim to any. portion of the assets of the company. This plaintiff, together with thousands, of others, has entered into a contract of insurance with a corporation having no. capital or assets within reach of the courts of his State, and with but little, if any, substantial guaranties of compliance with its contract. By a very remarkable provision, which if read should have put plaintiff upon notice, the contract declares that, “This contract shall be governed by, subject to and construed only according to the laws of the State of New York, the place of this contract being expressly agreed to be the home office of said Association in the city of New York,” is void so far as the courts *122 of this State are concerned. Rev., sec. 4806. It seems from his account of the dealings between the company and himself that he has expended a considerable amount of good money with a poor prospect of realizing any very substantial returns. The courts of this State in the trial of his cause will adjudge his rights, but it seems that, as others have been compelled to do, he must pursue his remedy to reach assets of the defendant in. the courts of New York.' We do not entertain any. doubt of the power of the courts of this State, either by attachment or, in proper cases, the appointment of a receiver, to seize and retain any property of a foreign corporation in this State and apply it to the payment of debts due our citizens. The’ exercise of this power does not involve winding up the affairs of the corporation. It is only for the purpose of securing the fruits of the recovery. The question is fully discussed by Mr. Justice Walker in Holshouser v. Copper Co., 138 N. C., 248. We have examined the case of Ins. Co. v. Phelps, 190 U. S., 147, cited by plaintiff. The only question decided upon that appeal related to service of process and procedure. It is true that the court of Kentucky appointed a receiver after judgment in an action against this defendant. Whether there was property other than assessments to become due does not appear.

Eor the reasons set out His Honor’s judgment must be

Affirmed.