*1 193 pany had to they contention that had constructive alleged notice fraud. From appears what we have said it that there nowas defense this action and properly the court directed a verdict favor of plaintiff. judgment J., is affirmed. Arnold, J., concurs; Trimblе, P. absent.
Adolph Henry Appellant.* Respondent, Klebba, F. City Appeals. January 6,
Kansas Court of 1930. *2 Juris-Cyc. Error, 4CJ, 2853, p. Appeal *Corpus References: section 36; 135, 953, 21CJ, 88; Assignments; 5CJ, p. Equity, 879, section n. sec n. 24; 84; 96; 210, 210, 225, p. 231, 179, 193, p. p. section n. tion n. section n. 67; 68; 1170, p. 1172, Estoppel, 21CJ, 176, p. 63, p. 439, n. Fraudulent Con section n. 130, 33; Insuranсe, 37CJ, veyances, 27CJ, n. Life section section p. 426, n. 23. respondent. Zevely M. P. Peters and E. John appellant. Irwin & Bushman sought equity whereby plaintiff
BARNETT, C. This is a suit plain- declaring benefit of defendant to be a trustee decree proceeds policies tiff four of insurance so far as those neсessary with proceeds satisfy interest thereon. were a note an insurance Struempf insurance in held four One Jake doing company plan, under which business on assessment cash, The had $2000 was due at the time of his death. no assured had executed note to lоan, or surrender value. The plaintiff 1927, he executed and delivered 28, and on November pledged to recited that he plaintiff a written Capital policy Mutual a certain life insurance City for the sum $4000 Association of Jefferson Insurance policy being March, dated life of Jake said pledge was made payable to his estate. It was recited that payment note, said the amount of which plaintiff to secure to policy if unpaid consented be lien still “and should he payable unpaid proceeds policy be out of said still tbe tbe per death Struempf per of said Jake cent interest six compounded.” annum possession The did take notify company and did not Struempf evidence showed that in of 1927 went fall Jake house of defendant, his brother. At he time fifty-onе years old, leg crippled by erysipelas he was one eye. blind in objection, that testified, leg that time the assured told his brother that his him so hurt badly he farm could not do much if he couldn’t work, and get anywhere go poorhouse. a home he have to the doing previous assured had farm work to this The brother said: you “No, go I let poorhouse. you won’t give want If a home I will you you anytime a room and come can there you your work and make home there.” After the assured stayed had at his brother’s house three weeks told *3 his brother if give that he would assured a would make home he beneficiary his brother of the insurance. To this defendant the agreed. day Then one the defendant went to the and said: “I going you am Jef, me to, change policies.” want I’ll those agreed. The assured took Defendant the insurance the agent requested beneficiary. agent the and in gave request him a beneficiary written the in signed to be by the assured. This was signed it, taken back and the assured in presence witness; according the of a time, which to the testi mony of witness tо the direction to the beneficiary, the de fendant, presence in assured, of the said: “That for his say anything home.” The assured did not the reason for assignment The evidence showed that after this four or assessments came due, made all of which amounting paid dеfendant, $15.96. were Defendant testi to assignment knowledge plaintiff fied he that had and he not have offered his brother a home that and would not given known him a home had he there claim policies; I had “Well, something and then said: to have a little pay for it.” spring follоwing pimple appeared upon
In the assured’s rocking neck. became sick and sat behind the stove chair He pimple developed two for about weeks. The into a carbuncle and he remaining hospital, days after was then to a and there for four taken May paid 1928. Defendant testified he died on that he bill, bill bill, hospital nurse’s and doctor’s the funeral ex- plaintiff when the penses. testified that assured was in the him, hospital and asked “Is he met the defendant Jake worse?” phone said he was and that he had The defendant received hospital; back to the call to come defendant then asked anything on his debt: plaintiff paid brother had whether-his paid asked: “Hasn’t he “No” defendant and said paid “No, he hasn’t Plaintiff said: noninterest, interest?” policy;” on his kept np payments he expect I said. testified all Defendant “Yes,” and that was said brother until after the debt conversation about had no was buried. disregarding plain- company, named as defendant who was $2000 paid the sum tiff, policies. plaintiff which contained a court entered decree The trial November, day of the 28th of fact the assured on knowledge and or consent 1927, without the certificates changed in his benefit consideration, Henry brother, F. and from of his estate to that proceeds of as the $2000 received thаt out and funeral expenses of the last illness insurance he had A $300. motion for approximately sum of the assured appealed. and defendant has filed and overruled new trial was Opinion. assignees good faith protection
The rule recognized has by the law merchant which was value which is Act, and Negotiable preserved our Instruments recognized by always courts of spirit recording acts, was nothing do with had equity applied to transaction that conveyance under negotiable Thus, of real estate. instruments оr the sleep those who “equity vigilant, aids the maxium; , " equity protect held that a court of rights *4 has been their legal diligence advantage, and by has obtained a superior who by damage his whose was created own deny will to one relief equal equities “between neglect. maxim, J. Under the C. [21 193.] prevail,” is it has been held that it time shall in order of first equal of time becomes only eqtéties that element where are rights. of priority "Where the re material and as decisive stronger or meritorious equities equal, are more spective not regardless which in order of accrued first of prevail, one prevent laches will relief to one J. The doctrine of C. 210.] [21 rights knowledge by his and allowed the idly of who has stood injustice others to it would be an to so situation sought. tardily early It was established grant'the was relief that persons must suffer the burden where of two innoceut one him, neglect Equity by created the situation. whose borne must be so, good if, which insufficient law to do is hold to be will not negligence must man’s be visited consequences a another. of
19? respondent аssignment The claims that in this a case was good equitable assignment, though even assignment no notice of the given company, to the insurance and though even neglected possession take of neglected and to have beneficiary changed neglected therein, assignment- to have the policies, though endorsed on the assignment even the written defectively agree policies. described the We with this contention. negligence prejudiced None these of acts of could have the as ¡But assignmеnt sured; perfectly and as him the valid. equity subsequent been held in State that a it has this of as signee gives of a chose in action notice to the is who first debtor assignee. superior prior of v. a and Dickson [Murdock 138; 416; 21 Mo. Richards 16 Hauser v. Finney, Griggs, v. Mo. Supreme 90 App. Mo. has Richardson, Court said that 134.] give rule the reason this is that the failure to notice the assignee first owner of in has enabled the the chose action commit by making Finney, fraud another sale. and Dickson v. [Murdock apply if the Griggs, supra.] The rule does and Richards v. assignee subsequent had notice of the first [Bank (2d) opinion We Moberly are v. S. W. of the Meals, 1113.] give apply as does not con rule does not who that the subsequent no assignment, because in such case sideration for assignee. subsequent perpetrated has on the frаud [Howe assignment in chose 97 N. Y. S. rule as to the Hagan, 86.] by any applies written is instrument not evidenced action obligation a written instrument is evidenced when fortiori itself nor endorse delivery is no instrument and there such the fact thereon. In case ment of the strong possession his instrument is original still has the holder hold assignment has been made. We therefore prior evidence that has sustained this unless he cannot recover in ease allegation petition his consideration. without changed court held wit saw the He consideration. policies of insurance his nesses, fact. great be accorded to must deference question of consideration record only However, evidence testimony testimony of s wa request assured’s written witnessed man who clear, reasonable, and uncontra beneficiary. That evidence documentary that defendant evidence It was established dicted. beneficiary. designated is It urns after he all the *5 a period house for his brother’s at lived assured true fur agreed would that defendant it was before three weeks assured therefor consideration assured to the home nish a However, insurance. of his beneficiary defendant make would obligation that time at continue to defendant was under no to support his If part. brother in whole or in the assured did not accеpt obliged so; see fit to do not to charity, he was parties whereby competent were still enter into a contract obligated defendant himself furnish a the assured. home Furthermore, paid think all the we fact the defendant premiums they or became аssessments on the of insurance as designated d ue faith fact that he had beneficiary as sup was in and itself sufficient consideration port prior contract secret They utterly had no surrender value: were therefore worthless premiums paid unless long should bе so as the future should live. the time that At made, anything. was had no lien on The assured compelled pay could not be premiums to continue to or assess By plaintiff’s assignment ments. reason of the fact was kept secret, pay pay defendant was induced to and did sums all necessary keep By alive. reason of the fact that shortly assured died designating after a the beneficiary, the amount out the defendant as or assessments small; was sup but consideration whatsoever is sufficient to port fraud, the transaction unless was or faith, tainted bad dealing. unfair Furthermore, we are to defer unable
court made without con sideration, undisputed reason evidence shows that long furnish did the assured a home as lived. as he too, That, light turned out to be a burden because of the fact that long designated the assured did live after his brother as beneficiary. However, defendant entered into a contract to furnish a home to his brother a long time when it could not be known how live, assured would nor whether would him. defendant survive Under possible the terms of it was the contract years great many furnish a home his brother for a and then predecease nothing his brother and thus receive for his services. advantageous very The contract was to the assured because he procured paying money. a home for life without out If should we that the contract was consideration, or hold based inadequate grossly a consideration so toas be trivial sub because sequent only necessary events made it party perform small of service under the amount terms the contract, then it a life company would follow that would not pay shortly a loss his death if the assured came to after written, pay would not have to contingent client fee shortly after lawsuit settled he retained his attorney.
1.99 Respondent suggests of beneficiary was fraudu lent because creditors, the assured insolvent. areWe prevented of no aware statute the assured from changing the policies insurance. On life Sec contrary, 1919, tion 6162, provides Revised Statutes proceeds of in companies doing by suranсe issued business on the assessment plan process shall not be liable to attachment or other shall by equitable taken, applied legal be seized, appropriated, or or pay any process, operation law, liability nor or debt any beneficiary or holder, policy or certificate named By provision or virtue of this certificate. right be made beneficiary, contract that he
have had even insolvent, had known that his brother was and even if the had had a surrender value But the why which is anothеr reason the contract value, surrender had to void as creditors. was not reversed, should be cause
The decree remanded bill equity. court to for want of dismiss directions C., Boyer, concurs. so recommends. The commissioner opinion foregoing Barnett, C., adopted is PER CURIAM:—The is cause remanded with court. reversed The decree equity. the bill for want of court to dismiss to the trial directions concur; Trimble, J.,P. absent. JJ., Arnold, Bland and Exchange Company, Producers No. Appellant, Buffalo Trust Respondent.* California, Missouri, City Appeals. January 6, 1930. Court Kansas