78 Vt. 473 | Vt. | 1906
This is assumpsit on a policy of insurance procured by the intestate on his own life, payable to> his executors, administrators, or assigns.
As the case is presented, it must be taken that the intestate procured the policy for the purpose on his part of immediately assigning it without consideration to- Mary A. Gleason, then of Rutland but now of New York, who had no insurable interest in his life; that the policy was assigned accordingly in duplicate under seal, executed by both of the parties, for an expressed valuable consideration, and the policy and one-of the assignments delivered to the assignee, who has ever since kept the same; the other assignment being sent to
This is not a wagering policy, as claimed by the defendant, for by the law of this State, as shown by Fairchild v. Northeastern Mutual Life Association, 51 Vt. 613, a policy procured by a man on his own life, in which he has an insurable interest, for the benefit of one named therein who has no such interest, and who' makes no outlay in the matter, is not a wager; and by parity of reason, such a policy assigned to such a person, though taken out for that purpose, is no wager.
But the defendant says that though the policy is valid, the plaintiff ought not to be allowed to recover upon it if the assignment is good, for then he would have no right to the money if recovered, and no right to sue for it without the consent and against the will and interest of the assignee, and that therefore the defendant has a right to contest the plaintiff’s title, and to show the assignment good, and thereby to defeat the action, in order to protect itself from1 the danger of having to pay twice.
It is true as a general proposition, that in a suit at the common law, a plaintiff who has the legal interest in the subject-matter of the litigation, cannot be defeated by showing- an equitable ownership of the entire subject-matter in a third person. This proposition is based upon the ground that
The same principle is recognized in Fletcher v. Fletcher, 29 Vt. 98. That was also an action by the bearers, on a promissory note. The defendant claimed that the plaintiffs had no right to- the note, and consequently no right to sue upon it. The Court said that as the defendant did not deny that he owed the note and should pay it to somebody, it was immaterial to him to whom he paid, or who recovered upon it, provided that when paid or recovered upon, it would bar any further claim by others; that to that extent and for that purpose, but no farther, it was competent for him to contest the plaintiffs’ title and their right to sue.
Sanford v. Huxley, 18 Vt. 170, was assumpsit on a note payable to the plaintiff or bearer in neat stock. The defendant pleaded equitable ownership in one Gibson. But the Court
So in New York under the Code, an assignee, in order to recover, must have a title that will protect the defendant against the assignor. Hays v. Hathorn, 74 N. Y. 486.
The principle of these cases applies here, and necessitates a reversal, unless we can say, as the plaintiff claims, that the assignment is void for want of consideration. But we cannot say that, for if it was a gift, as it may have been, a consideration is not essential to its validity. Watson v. Watson, 69 Vt. 243, 39 Atl. 201.
We 'take no note of the plaintiff’s offer to show revocation, for if the assignment is revocable, as to- which we say nothing, it cannot, as the case is presented, be taken to have' been revoked.
Reversed and remanded.