140 Ga. 141 | Ga. | 1913
It appears from Jones’s own statement that he undertook to defraud the insurance company, whose agent he was, by issuing and reporting a policy as new business, which he subsequently said was really issued as a substitute for the one involved in this case, thus getting the commission on issuing a new policy; and further that, after the death of the insured, he obtained a transfer
1. There was a demurrer, but it was without merit, and was rightly overruled.
2-4. It was contended that the company relied on the transfer of the policy by the plaintiff to Jones, and an order later obtained from the ordinary, and that there was nothing to put the company on notice of any fraud. It admitted in its answer that until after this suit was brought it considered the policy good, and that it received a copy of the order of the ordinary. An administrator must have authority in order to sell the property of the estate. Civil Code, § 4039. There is no law which empowers an ordinary to grant an ex parte order ratifying a previous illegal transfer of an insurance policy’on the life of the deceased, under a private sale, by an administratrix, and thus to validate it. The order of the ordinary did not purport on its face to authorize a sale, but rather a compromise of a doubtful or disputed claim, under the Civil Code, §§ 4004-4006. While it used the words “compromise and assign” and referred to approving “the settlement so made,” there was nothing to “compromise” between Jones as an individual and the
It was contended that the judgment of the ordinary was binding. If the order should be treated as an attempt to ratify and make valid the previous illegal transfer, as above stated, there is no such power in the ordinary or his court. The fact that the court of ordinary is one of general jurisdiction as to certain matters gives no power to pass any such order. If the order should be treated as authority for the administratrix to compromise a doubtful and contested claim against the company, this has never been done. An authority to compromise does not have to be revoked or set aside in order to attack a previous private transfer procured by fraud.
5. It was argued that the plaintiff put the matter in the hands of an attorney, who, in response to a suggestion of the company’s attorneys that he might enjoin the company from making further payments, wrote a letter stating that he did not see any way to enjoin the company from so doing. No action was pending. Such an opinion was not an agreement within the scope of the general powers of an attorney to make, so as to bind his client. The attorney had no implied power to consent to give away his client’s property by agreeing that one installment might be paid to the person who had obtained the transfer by fraud, in order not to embarrass him. The company had been put on notice of Jones’s fraudulent procedure. The somewhat despondent view taken by the attorney first employed by the plaintiff did not operate as an estoppel on his client, or at least can not be declared to have done so as matter of law. When she was advised of his opinion and unwillingness to
6. It was claimed that the plaintiff entered into a scheme with the agent of the company to defraud the latter. But it does not appear from the evidence how the company was to be defrauded. The application for the policies (the second showing on its face that the other policy was of force and not superseded), the receipts for payments of premiums on this one, the deduction by the company from the first payment made after the death of the insured of an unpaid premium, and its entire conduct show conclusively that the policy was valid and in force. What fraud did the plaintiff undertake to perpetrate upon it except to get money to which she was entitled? Jones’s language, like his conduct, was not free from indirection. But no fraud' or attempted fraud by the plaintiff was shown.
7. It is needless to take up separately the grounds of the motion for a new trial filed by the company. Some, of the charges, especially as to collaterally attacking a judgment for fraud, may not have been correct, but none of them show any reason for a reversal, under the evidence.
Judgment affirmed.