168 Mo. App. 121 | Mo. Ct. App. | 1912
(after stating the facts). — It is -clear that, considering the state of the pleadings, the "trial court erred in holding that the burden of proof lay with the plaintiff and not the defendant, and did not err in granting plaintiff a new trial on that ac•count. On the admitted facts, defendant has no right -except such as he derived through Schwarzkopf, who, In turn, was a mere assignee of the policy. He acquired no greater right in the policy than Schwarz-Icopf had. [Heusner-v. The Mutual Life Ins. Co., 47 Mo. App. 336, 345.] The -assignment to Schwarzkopf, being made to one having no interest in the life of the Insured,-was prima facie void and-if he -was a creditor it could be valid only to the amount of his advances. [Deal v. Hainley, 135 Mo. App. 507, 116 S. W. 1; Jenkins v. Morrow, 131 Mo. App. 288, 109 S.W. 1051; Mut. Life Ins., Co. v. Richards, 99 Mo. App. 88, 72 S. W. 487; Singleton v. Ins. Co., 66 Mo. 63; Warnock v. Davis, 104 U. S. 775; Heusner v. Mut. Life Ins. Co., supra.], Being prima facies -void, ,the onus was. on the one asserting its validity, to-show such facts as, rendered it valid,and binding. - [Singleton v. St. Louis
As to estoppel and laches, the onus is on the party setting them up to make out the facts on which they rest. The petition does not disclose such facts. It does disclose that plaintiff delivered the policy to> Schwarzkopf, together with an assignment which is absolute in form, and that Schwarzkopf pledged it to defendant, but the rule that the owner of personalty 'will be estopped from setting up his title as against a pledgee of it when he has clothed the pledgor with evidence of ownership of it has been held to have no> application to a life insurance policy. [Heusner v. Ins. Co., supra.] ^ Neither does it appear on the face of the petition that plaintiff has been guilty of such laches as to bar his right to relief in equity or to put him' to ah explanation of his delay in bringing suit. It is true that plaintiff alleges that Schwarzkopf died in June, 1907, having theretofore pledged the policy with defendant Bowman for a larger sum, etc., but that is not sufficient. There must be something more than mere delay or death of a participant, before the relief -asked should be refused. It must appear that the other party was injured by the delay, and that plaintiff had had knowledge of his rights being infringed and opportunity' to establish them. [St. Louis Safe Deposit & Savings Bank v. Kennett’s Est., 101 Mo. App. 370, 74 S. W. 474.] The cases which hold that equity views with disfavor a suit that is broi ght after
It was unnecessary for plaintiff to allege and prove a tender before suit of the amount of the debt necessary to be paid in order to redeem the policy, this being a proceeding in equity to redeem. [Haydon v. Railroad, 222 Mo. 126, 121 S. W. 15.]
Defendant’s counsel contend that as the reply denied the “new matter” of defendant’s answer it is insufficient and therefore the averments in the answer must stand as admitted. The contention will be ruled against the defendant. The trial court having ordered the reply to be amended so as to meet that .objection it is to be regarded here as having been made, and it is immaterial whether the verbal changes were made or not. [Underwood v. Bishop, 67 Mo. 374; Shantz v. Shriner, 167 Mo. App. 635, 150 S. W. 727, (Decided October 8, 1912).]
The judgment is affirmed and the cause remanded.
