141 P. 875 | Cal. | 1914
In the year 1878 the Connecticut Mutual Life Insurance Company issued to one Charles L. Taylor a policy of life insurance, whereby it agreed to pay his wife, defendant Alice A. Taylor, the sum of three thousand dollars, and accruing profits, upon his death, provided that he and his beneficiary complied with all the terms and conditions of said policy. On January 6, 1895, in settlement of an indebtedness of $2,501.00 then existing on the part of Mr. Taylor in favor of plaintiff Carrie E. Bridge and found to be due her upon a statement of an account, Mr. Taylor made, executed, and delivered to Mr. Bridge for Mrs. Bridge his promissory note, payable to the order of Mrs. Bridge, for $2,501.00, with interest thereon at the rate of one and a half per cent per month from date until paid. As security for the payment of said promissory note and as part of the settlement, the same being executed and delivered contemporaneously with the note, Mr. and Mrs. Taylor and their son, Charles L. Taylor, Jr., executed and delivered to Henry S. Bridge, who was at all times acting as the agent of his wife in the matter, an assignment in writing of said insurance policy, the same purporting to be an absolute transfer of the policy. This assignment was consented to by the insurance company, and was never altered or revoked. On December 8, 1898, a new note was given by Mr. Taylor to Mrs. Bridge, payable one day after date, for $4,806.30, with interest at the same rate, being the amount of principal and accrued interest on the indebtedness evidenced by the first note, none of which had been paid, and the first note was delivered to Mr. Taylor. On October 18, 1902, a new note was given by Mr. Taylor to Mr. Bridge for seven thousand dollars, with interest at six per cent per annum, being the principal and accrued interest due on the second note, none of which had been paid. No part of the principal or interest on the indebtedness evidenced by the original note has ever been paid, unless the same was extinguished by the so-called renewal notes. Said original promissory note was never changed in any respect, except by the renewal thereof as hereinbefore set forth. Mrs. Taylor took no part in either *777 of said renewals, had no knowledge thereof and never consented thereto. Mr. Taylor died on April 14, 1908. There was then due upon the insurance policy the sum of $3,027.39, an amount very much less than the amount due from him to Mrs. Bridge on account of such indebtedness. The insurance company having refused to pay to Mrs. Bridge the amount due on the policy, because of the conflicting claims thereto, this action was brought on February 10, 1910, by Mrs. Bridge and her husband against the company and Mrs. Taylor to obtain a decree that Mrs. Bridge is entitled to receive the same and awarding it to her. The company, acknowledging its liability on the policy, paid the amount due, $3,027.39, upon the joint receipt of plaintiff and Mrs. Taylor, and the amount has been deposited to await the determination of the respective rights of Mrs. Bridge and Mrs. Taylor. The action was therefore dismissed as to the insurance company. The action was tried as between the other parties and the findings of the trial court were in favor of plaintiffs. Judgment was thereupon given establishing the right of Mrs. Bridge to receive all the moneys due on said policy, free from any claim of Mrs. Taylor, and decreeing that she recover the same. This is an appeal by Mrs. Taylor from the judgment and from an order denying her motion for a new trial.
As is substantially said in respondents' brief, the insurance company having admitted its liability and paid over the amount due on the policy to be awarded in accord with the determination by the court of the question which of the two claimants is entitled thereto, the contest is now between two rival claimants, both of whom are actors.
The right of one to whom a policy of life insurance is assigned by another, as security either for his own debt or for the debt of a third person, to collect from the insurance company the whole amount of the policy when it falls due, if he is still entitled to hold the security, cannot be doubted. The assignee in such a case has the legal title to the policy to such an extent as is necessary to enable him to do this, and the assignor is without any right to maintain any action for the money due thereon, upon the theory that he is the owner thereof. The assignor's only interest in the policy, "upon that condition of fact, is in what remains of it after the advances, for the security of which it was assigned, have been *778
satisfied," and the assignee "cannot be made to surrender it" to the assignor until the advances made by him are repaid. (Gilman
v. Curtis,
It can make no difference in so far as the right of the creditor to continue to hold the security is concerned, that the obligation on account of which he holds it is barred by the statute of limitations. That question was fully and carefully considered by this court in Puckhaber v. Henry,
Learned counsel for Mrs. Taylor relies somewhat on what is said in Faxon v. All Persons,
The trial court was amply warranted in concluding that the consideration for the execution of the original promissory note by Mrs. Taylor, and the contemporaneous execution of the assignment of the policy, was the settlement and satisfaction *780
of the pending account between Mr. Taylor and Mrs. Bridge, and of the right of action of Mrs. Bridge against Mr. Taylor for the money due her from him. Certainly no other consideration was essential, so far as Mrs. Taylor was concerned. (See Civ. Code, sec.
We are of the opinion that the conclusion of the trial court that no part of the original promissory note to secure which the policy was assigned in pledge has ever been paid, cannot be held to be without sufficient support in the evidence. The claim of appellant in this connection is based entirely on the taking of the so-called renewal notes, and the surrender in each case of renewal of the old note. In Savings and Loan Society v. Burnett,
It is claimed that Mrs. Taylor was a mere surety in so far as the assigned policy was concerned, and that her property was released by the change in the original obligation for which the policy was assigned as security effected by the taking of the renewal notes. The first of these renewal notes was given, as we have seen, on December 8, 1898, and was payable, "one day after date." The second was given on October 18, 1902, and, it will be assumed, was also payable "one day after date." We do not think it can be seriously questioned that she did stand in the position of a surety of a debtor with relation to the property assigned, and that any change in the contract of the principal which would discharge a surety, *782
would operate to release and discharge such property held as collateral. (See Jones on Pledges and Collateral Securities, sec. 517a and cases there cited. Valentine v. Banking Co.,
Plaintiffs' claim, based upon Dewes v. Osborn,
In response to Mrs. Taylor's claim in this regard, set up in her pleading denominated her "amended answer and amended cross-complaint," filed August 18, 1911, as well as to other claims made by her, plaintiffs interposed the defense that the claim was barred by certain provisions of our statute of limitations, viz.: Subdivision 1 of section
The first renewal note was given, as we have seen, on December 8, 1898, and the second on October 18, 1902. Obviously if Mrs. Taylor's rights because of the extension accrued at the time thereof, so that she might then have legally asserted the same, they became barred at least as early as December 8, 1902, and October 18, 1906, respectively.
The evidence shows without conflict that the insurance policy was delivered to Mr. Bridge at the time of the giving *784 of the original note and the assignment of the policy absolute in its terms, and that it remained in his possession, he claiming the right to hold the same as security for the debt due his wife, until, after the death of Mr. Taylor, the insured, he made the claim against the insurance company. He then surrendered the policy to the insurance company.
No sufficient reason is suggested why Mrs. Taylor's right to recover the policy on account of the extensions of the time of payment of the original note did not accrue at the time of such extensions. Such extensions, according to the contention of her counsel, each at once released the policy, so far as she was concerned, from any claim under which it could legally be held by plaintiffs as security for the payment of her husband's debt. She was thenceforth entitled to assert her right in this behalf by action. During the full period prescribed by the statute of limitations and thereafter to the death of her husband, plaintiffs continued to hold the same under claim of right and adversely to her, with no claim whatever on her part that they were not entitled so to do. The trial court found, it is true, that she took no part in either of the renewals, "and had no knowledge thereof," and that "said renewals were made without her knowledge or consent." But we think that all this is entirely immaterial in so far as any question in connection with the statute of limitations is concerned. There is nothing in either the findings or the evidence to warrant the application of the rule discussed and applied in Lightner Mining Co. v. Lane,
We see no force in the claim that the judgment is in violation of any provision of the federal constitution. The claim of appellant in that connection appears to be substantially that the doctrine of Puckhaber v. Henry,
The judgment and order denying a new trial are affirmed.
Rehearing denied.
Beatty, C.J., does not participate in the foregoing. *786