26 So. 2d 596 | Ala. | 1946
Appeal from a decree overruling demurrer to a bill of complaint as amended. Appellee filed this bill seeking the cancellation of an insurance policy insuring the life of Della Wallock in favor of her minor son, Larry E. Wallock, because of the fraudulent representations and conduct of the insured. By amendment, appellee seeks a declaratory judgment as to the rights of the parties. According to the averments of the bill the insured died on October 24, 1939.
On September 22, 1938, the insured signed an application for a policy of life insurance to appellee, and upon that application appellee first issued a policy of insurance on the life of Della Wallock in the amount of $10,000, on October 11, 1938. On November 15, 1938, that policy was cancelled and a new policy for the same amount was issued. On September 9, 1939, the last mentioned policy was cancelled and a new policy for the same amount was issued, a copy of which last policy is attached to the bill of complaint and made a part thereof.
By separate agreement between Della Wallock and appellee insurance company, *153 it was agreed that in the event the policy becomes a claim, the proceeds of the policy would be held by the company and paid to Larry E. Wallock, son of the insured, as follows: $1000 on June 1, 1946; $2500 on November 24, 1949; $3000 on November 24, 1954, and $3500 on November 24, 1959, all installments to bear interest at not less than three and one-half percent per annum.
The cancellation of the policy was sought because of alleged fraudulent answers of Della Wallock in her application for insurance.
The only grounds of demurrer argued on appeal are that, there is no equity in the bill, and that complainant has a full, adequate and complete remedy at law.
The controlling rule is stated in National Life Accident Ins. Co. v. Propst,
"We think this ruling in line with the current of authorities. 21 C.J. 68; 2 Pomeroy, Eq.Jur.(3rd Ed.) § 914, where the author says: 'The doctrine is settled that the exclusive jurisdiction to grant purely equitable remedies, such as cancellation, will not be exercised, * * * in any case, where the legal remedy, either affirmative or defensive, which the defrauded party might obtain, would be adequate, certain, and complete' — quoted approvingly in Merritt v. Ehrman,
"Numerous decisions from our own court have dealt with the equitable jurisdiction as to cancellation of instruments for fraud or other appropriate grounds, among them Merritt v. Ehrman, supra; Hodge v. McMahan,
Further in the same case it was said:
"The suggestion, therefore, in brief, that evidence may be lost by delay in institution of actions at law, finds no support in the averments of the bill, but, otherwise considered, the New York court in Globe Mutual Life Ins. Co. v. Reals,
And this Court, in the case of All States Life Ins. Co. v. Jaudon,
But appellee argues that the averments of the bill bring it within the influence of *154
the decision in Merritt v. Ehrman,
But we find nothing in the policy, nor in the written agreement between the parties, to sustain such an agreement. The policy and agreement are exhibited to and made a part of the bill of complaint. Neither does more than provide for the payment of the benefit of the policy in installments. An exhibit made the basis of a cause of action or defense and contradicting the averments of the pleading of which it is made a part, will control such pleading. 49 Corpus Juris 619, section 883; South v. First National Bank of Fayette,
The recent case of George Donoghue et al. v. Brank Bunkley, Comm'r., et al., Ala.Sup.,
There is no equity in the bill, and appellee has a full, adequate and complete remedy at law. A declaratory judgment will not be rendered under these circumstances.
Reversed and remanded.
BROWN, SIMPSON, and STAKELY, JJ., concur.