134 So. 25 | Ala. | 1931
Not being prohibited by law or public policy, a contract of life insurance, being a chose in action, may before loss be assigned to one having an insurable interest in the life of the assured, without the consent of the insurer, unless it contains a stipulation to the contrary, or by which the right of assignment is limited. McDonald v. McDonald,
But limitations on the right of assignment before loss contained in the policy are usually effective. If the assignment is after loss, such limitations are not effective. Perry v. Merchants' Ins. Co.,
Upon like principles we have held that a change of beneficiary may be effectual without a notation by the insurer on the policy, though the policy requires that such change be so noted by it, if the insurer waives the requirement, and that an interpleader by it is such a waiver. McDonald v. McDonald,
The assignment of a chose in action merely as collateral security has been held to create the relation of pledgor and pledgee. Keeble v. Jones,
But a pledge of collateral securities in the nature of choses in action vests in the pledgee the right, sometimes the duty, to take such action as may be necessary to collect the amount due upon them at maturity without the necessity of a foreclosure by statute (section 6745) or in equity. Oden-Elliott Lumber Co. v. Butler County Bank,
It may be shown by parol evidence that, though the assignment is not limited, it was in fact given as security for a debt. Oden-Elliott Lumber Co. v. Butler County Bank, supra; Brown v. Isbell,
The pledgee may recover the amount due on the collateral, and the pledgor is not a necessary or proper party in such an action at law. Oden-Elliott Lumber Co. v. Butler County Bank, supra; section 5699, Code; Capital City Ins. Co. v. Jones,
Applying the above principles to the facts of this case, we observe that the complaint on its face shows an assignable chose in action, that plaintiff, as assignee, had the sole right of action in its own name. While the policy contains a clause that no assignment shall be binding upon the company unless made in a certain manner, and a duplicate furnished the company forthwith, defendant did not plead this provision and therefore waived it. Moreover, there was no proof that it was not complied with.
The verified plea No. 4 of defendant denied the ownership by plaintiff of the cause of action. While it also set out what defendant was informed was the nature of plaintiff's interest, and the facts thus alleged showed that plaintiff did have the right to maintain the suit, and the plea was therefore inconsistent, it cannot be said that the allegation in general terms denying the ownership by plaintiff was proven; so that, though there was interposed no demurrer to this plea, it was not proven in legal effect.
The trial was without a jury, and we think that there was no error in overruling demurrer to the complaint and rendering judgment for plaintiff.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
