160 Ky. 538 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
In April, 1905, Dr. T. H. G-arvin, of Horse Cave, this State, and his son, Ed L. G-arvin, then a resident of St. Louis, Missouri, or Estonia, New Mexico, borrowed of the appellee, First National Bank of Horse Cave, Ken
“We hereby assign the within policy No. 250654 to First National Bank of Horse Cave, Kentucky, to secure a loan of $1,000.00, the receipt of which is hereby acknowledged.
(Signed)
“Ed L. Garvin,
Bettie H. Garvín.”
While there was some contention as to whether the makers of this note were both principals or Ed L. Garvin was the principal and T. H. Garvin the surety therein, our examination of the evidence convinces us that Ed L. Garvin was the principal and T. H. Garvin his surety; and it is fairly apparent from the evidence that the entire $1,000.00 for which the note was executed was received and used by Ed L. Garvin. When this note matured in 1906 it was renewed by the execution of a new note by thé same parties and with the same collateral attached as security. Some time after the renewal of the note Dr. T. H. Garvin, at the request of Ed L. Garvin, induced the bank to surrender the policy in the Northwestern Life Insurance Company, which Ed L. Garvin used in borrowing money elsewhere, but there was placed with the bank as collateral security, in lieu thereof, seven shares of the bank’s stock, belonging to Dr. T. H. Garvin individually. Although the second note or renewal executed in 1906 became due in April, 1907, it was not paid by the makers or either of them at maturity, or thereafter, and was held by the bank until October 1, 1908, at which time it threatened suit upon the note, to prevent which Mrs. T. H. or Sallie Garvin, wife of Dr. T. H. Garvin, at the instance of the bank, executed to it, in renewal or discharge thereof, her note for a like ¿mount, due one year after date, to which she signed the name of her son, Ed L. Garvin. The
After the execution of the last-mentioned note by Mrs. T. H. Garvin, and perhaps before its maturity, Dr. T. H. Garvin died testate. His will appointed his widow executrix and devised to her his entire estate. Although the widow qualified as executrix of the will she subsequently resigned as such, and Samuel Heatherly was appointed and duly qualified as administrator with the will annexed of the estate of T. H. Garvin, deceased. Before her resignation as executrix, however, Mrs. Garvin brought suit in the Hart Circuit Court for the settlement of the testator’s estate, and about the same time the First National Bank also brought suit on the note in question, proceeding on the theory that Mrs. T. H. Garvin was interested in certain enterprises in which her son, Ed. L. Garvin, was engaged and in which the $1,000.00 originally borrowed by him and his father of the bank was used. It therefore sought to recover of Mrs. Garvin personally, and as executrix of her husband’s will, the amount due on the note and also to subject the collateral, held by it as security for the note, to its payment.
After the resignation of Mrs. Garvin as executrix, the prosecution of the suit brought by her for the settlement of the estate was proceeded with by Heatherly, administrator with the will annexed. In the meantime yet another suit was brought by the bank against the personal representative of T. H. Garvin and Mrs. Garr vin upon other obligations claimed to be owing by them to the bank, and the three actions mentioned were consolidated and heard together. We are only concerned, however, with the action on the $1,000.00 note. Before the order of consolidation was entered the bank, by an amended petition in that action, made the Mutual Benefit Life Insurance Company, Ed L. Garvin and Bettie H. Garvin, his wife, parties defendant, following which a warning order was properly taken as to Garvin and
Neither Ed L. Garvin nor his wife filed an answer to the petition of the bank as thus amended, but the Mutual Benefit Life Insurance Company filed a special demurrer thereto upon the ground that the court below was without jurisdiction to adjudicate the question of its liability upon the policy on the life of Ed L. Garvin. The demurrer was overruled and the insurance company, without waiving the question of jurisdiction, then filed an answer, setting up the following grounds of defense: (1) That the original note to secure which the policy was pledged was discharged by the bank’s acceptance of the note of Mrs. and Dr. T. H. Garvin; (2) That the financial interest of Mrs. Bettie H. Garvin, wife of Ed L. Garvin, in the life insurance policy was not legally divested and her assignment thereof was not binding upon her; (3) That, even if the assignment was valid, it bound Bettie H. Garvin only to the extent of the satisfaction of the original note, for which it was pledged; and that the assignment of the policy made by her at the time of the execution of that note was, ipso facto, released by the acceptance by the bank of the renewal note executed by Mrs. and Dr. T. H. Garvin; (4) That in life insurance the cash surrender privilege was personal to the insured and did not pass to the assignee of the ■policy; (5) That the Hart Circuit Court had no jurisdiction of the subject matter or of the persons to this litigation.
On the hearing the circuit court reached the conclusion that, according to the terms of the written assignment, the policy in question was pledged to secure the payment of the loan of $1,000.00 evidenced by the several notes executed therefor, that is, the original note and the subsequent renewals thereof evidencing the original indebtedness; that the debt .sued on was that
It should here be remarked that the policy of $1,000.00 on the life of Ed L. Garvin was issued by the appellant, Mutual Benefit Life Insurance Company, on the convertible ten premium life plan. That is, it called for the payment of ten annual premiums of $44.05, which were paid as they fell due. At the time the policy was issued the injured was twenty-seven years of age and when it was pledged to the appellee, First National Bank of Horse Cave, as security for the note of $1,000.00 referred to, the premiums thereon for the entire ten years had been fully paid. In addition, the regular dividends to which the policy holder was entitled were applied by the insured to the purchase of additional participating insurance, payable with the policy, which additional insurance amounted on April 18, 1912, to $197.00, making the total insurance due under the contract $1,197.00. On March 5, 1901, the company made a cash loan of $100.00 to the insured on the policy. This loan was increased on November 19, 1903, to $150.05, for the purpose of paying the premium for that year and interest due on the loan to that date. It appears that the interest on this loan due annually on November 19th, the policy anniversary, was paid in cash until November 19, 1908, and on that date the interest due was added to the loan, increasing it to $159.05. On each subsequent anniversary the interest due on the policy loan was settled by an increase of the loan, and in 1910 a special dividend amounting to sixty-one cents was applied in part settlement of the interest due November 19, 1910. So on April 18,1912, the policy was subject to a loan of $188.79, with interest from November 19, 1911, and the cash surrender value at that date amounted to $311.42 in excess of the then existing policy indebtedness.
“Before authority is granted to any foreign insurance company to do business in this State, it must file with the Commissioner a resolution adopted by its board of directors, consenting that service of process upon any agent of such company in this State, or upon the Commissioner of Insurance of this State, in any action brought or pending in this State, shall be a valid service upon said company; and if process is served upon the Commissioner it shall be his duty to at once send it by mail, addressed to the company at its principal office; and if any company shall, without the consent of the other party to any suit or proceeding brought by or against it in any court of this State, remove said suit or proceeding to any Federal Court, or shall institute any suit or proceeding against any citizen of this State in any Federal Court, it shall be the duty of the Commissioner to forthwith revoke all authority to such company and its agents to do business in this State, and to publish such revocation in some newspaper of general circulation published in the State.”
It is manifest from the language of this section that process (i. e. summons) in an action brought in this State against a foreign insurance company, like the appellant, may be served upon any agent of such company in this State or upon the Commissioner of Insurance of this State. Its meaning is not that the process must be served on the agent if there be one in the State, and that it cannot be served on the Commissioner of Insurance if the company has an agent in this State; but that service upon either may be had at the election of the plaintiff in the action. Indeed, the section compels the consent of the foreign insurance company to the service of process upon either as a condition precedent to its right to do business in this State, requiring that such consent be given by resolution of its board of directors, filed with- the Commissioner. In Aetna Insurance Co., etc. v. Commonwealth, 106 Ky., 864, we held that a
“By the statute (Kentucky Statutes, Section 631) foreign insurance companies are required to file with the Commissioner a resolution ‘consenting that service of process upon any agent of such company in this State, or upon the Commissioner of Insurance of this State, in any action brought or pending in this State, shall be a valid service upon said company.’ Section 11 of the Criminal Code provides: ‘A public offense, of which the only punishment is a fine, may be prosecuted by a penal action in the name of the Commonwealth of Kentucky. # # # ?
“The proceedings in penal actions are regulated by the Code of Practice in civil actions. Section 9 provides: ‘All public offenses may be prosecuted by indictment, except offenses of public officers-, etc. Chapter 3 of the Criminal Code, on the sub jet of ‘Process upon Indictments, ’ provides, in Section 147: ‘ The summons shall be issued and served in the same manner as a summons in civil actions. ’
“It is urged that as the consent goes no further than to make the service upon the Commissioner sufficient in an action, civil or penal, it cannot be extended to an -indictment, because the action is within thé consent given by the company, and the indictment is hot. But we think these statutes, though they might have been better expressed for the purpose, were intended to apply to exactly this class of cases, and to make valid service upon the Commissioner of summons on a misdemeanor indictment, and give jurisdiction of such prosecutions to the Franklin Circuit Court.”
The objection that the constructive service obtained on Ed L. Garvin and Bettie Garvin, his wife, by warning order was not sufficient to give the court jurisdiction to render the judgment appealed from, cannot be sustained. A personal judgment was not rendered or sought against Ed L. Garvin or Bettie Garvin. The bank was, as to them, merely seeking to enforce its lien upon the policy of insurance issued by the appellant insurance company upon the life of Ed L. Garvin, which policy was in the bank’s possession. Therefore, as to the policy and enforcement of the lien thereon, the proceeding was an action m rem. While it is unquestion
We see no reason for sustaining appellant’s contention that the debt for which the original note was given, to secure which the policy in suit was pledged, was discharged or paid by the note executed to the bank by T. H. and Sallie E. Garvin. It is true the latter’s name did not appear on the old note or the first renewal thereof, but the weight of the evidence is to the effect that she signed the last note as surety for her son, Ed L. Garvin, and her husband, T. H. Garvin, the first of whom was the principal in the original note. It is true that the cashier of the bank testified that at the time of the execution of the last note he supposed Mrs. Sallie Garvin to be the moneyed head of the Garvin family; and, perhaps, that he thought her interested in some enterprise in the West •for which the money borrowed upon the original note was used; but we think it apparent from the evidence that neither of these suppositions of the cashier was well founded; and it is evident that it was not the intention of the bank nor that of Mrs. Sallie Garvin that either T. H. or Ed L. Garvin should be discharged from liability for the debt held by the bank, for Mrs. Sallie Garvin, at the time of signing her name to the note, also signed that of Ed L. Garvin thereto, and a day or two thereafter T. H. Garvin also added his name to the note.
It is also manifest that the bank did not, at the time of the execution of the last note, intend to release any of the collateral then held by it which had been originally pledged as security for the debt, for this collateral was
“Ordinarily, it will be presumed that the name appearing first on a note as an obligor is that of the principal debtor, but this presumption may be overthrown by the facts of the case, or the conduct of the parties themselves ; and, it is admissible, for one whose name appears first or above that of another on a note, to prove that his relation to the obligation is, nevertheless, that of a surety, and this he may do by parol testimony. Lewis v. Harbin, 5 B. Mon., 564; Emmons v. Overton, 18 B. Mon., 648; Bank v. Gaines, 87 Ky., 601; Skinner v. Lynn, 21 R., 185. Section 2127, Kentucky Statutes, 1903, declares that the wife’s estate shall not be liable ‘upon a contract made after marriage to answer for the debt, default or misdoing of another, her husband included, unless such estate shall have been set apart for the purpose by deed of mortgage or other conveyance. * * *’ As said in Crumbaugh v. Postell, 20 R., 1366, in respect to an attempt to hold the wife liable on certain notes which she had signed with her husband and at his request, her name appearing first with the word ‘principal’ attached, and his under hers with the word ‘surety’ added: ‘In transactions of this kind, the courts must look to the substance, and whatever the parties themselves may designate or name the undertaking of the wife, if in fact it be an attempted assumption by her of the debt of another, she must be held not liable unless she binds herself in the statutory way. Any other course will speedily result in a nullification of the statute.’ ”
The evidence is conclusive that Mrs. Sallie Garvin was in no way benefited by the execution of either the
If Mrs. Sallie Garvin was only surety upon the note signed by her, her husband and son were the only persons upon whom it imposed any liability, which made the note but a renewal of the original and second notes, to-neither of which did the name of Mrs. Sallie Garvin appear. As said in Russell v. Centers, 153 Ky., 469:
“A novation is a contract, and like other valid contracts must be supported by a consideration, which is the discharge of the original debt. If, therefore, the agreement does not, or was not intended to, effect the release of the debtor from the old debt, it is not a novation. The following statement from 29 Cyc. 1134, comprehensively -explains how a novation may be effected: ‘Novation may be effected in three ways: (1) By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; (2) By the substitution of a new debtor in the place of the old one, with intent to release the latter; (3) By the substitution of a new creditor in the place of the old one, with intent to transfer the rights of the latter to the former.’ ”
Here there was no substitution of a new obligation; there was no substitution of a new debtor in the place of the old one, with intent to release the latter; nor was there a new creditor substituted for the old one. In fact, there was only an attempted addition of a new obligor whose only relation to the obligation was that of a mere surety, which, by reason of her being a married woman, imposed upon her no liability.
If, as contended by appellant, Mrs. Sallie Garvin was without authority to sign the name of Ed L. Garvin to the note in question, and he was not bound thereby;
It is further insisted for appellant that the beneficial interest of Mrs. Bettie Garvin, wife of Ed L. Garvin, in the life insurance policy in suit was not legally divested and her assignment thereof was not binding upon her. This contention rests upon the theory that the assignment made of the policy by Bettie Garvin, in connection with her husband, was made only for the purpose of securing the payment of the original note, which, it is claimed, was extinguished and the assignment ipso facto released, by the bank’s acceptance of the renewal signed by Mrs. Sallie and T. H. Garvin. It is manifest that this contention is untenable, unless the acceptance by the bank of the note signed by Sallie and T. H. Garvin, and to which the former signed the name of Ed. L.
It is patent from the language of the assignment made of the policy by Ed L. and Bettie Garvin that it was for the purpose of pledging whatever interest either or both of them had in the policy as security for the payment of the note originally executed by Ed L. and T. H. Garvin, as well as any subsequent renewal that might be made thereof, and it being clear that the last note, to which the name of Mrs. Sallie Garvin appeared for the first time, was but a second renewal of the original note and so intended by all the parties to the transaction, and that it did not extinguish the debt for which the original note and first renewal were executed, the assignment made of the policy by Ed L. and Bettie Garvin was and is still binding upon them, as held by the circuit court. In renewing the original note it was unnecessary for the bank to obtain of Ed L. and Bettie Garvin a second assignment of the policy; as long as the original debt remained undischarged the collateral placed as security for its payment, at the time the original note was executed, remained pledged and the lien in force. It seems to be well settled by the weight of authority, that where collateral is assigned or pledged as security for a debt; it continues as security for all renewals of the evidence of the debt until it is paid. This rule is well stated in 22 American and English Encyclopedia of Law (2nd Ed.) 871, as follows:
“Where property is taken in pledge for an existing indebtedness, the renewal of a promissory note, given as evidence of such indebtedness, will not affect the pledgee’s interest in the property pledged, in the absence of an agreement to the contrary; but the property pledged will stand as security for such balance of the indebtedness in its new form.”
In Wirgman v. Miller, 98 Ky., 620; New York Life Ins. Co. v. Miller, 22 Ky. L. R., 233; and Baker v. Owensboro Bank’s Receiver, 140 Ky., 121, such an assignment of a policy as was made in this case was held to be valid, and there is less cause for questioning the validity of the assignment of the policy in this case than existed in those cases, for here the policy is payable “to Mrs. Bettie Garvin, if she survives her husband, otherwise to her husband” (Ed L. Garvin). There are no children named in the policy as contingent beneficiaries, as in those involved in the cases sufra, and the wife’s right is condi
It is not claimed by appellant that the policy confers upon Bettie L. Garvin the .right to demand1 or receive its cash surrender value, but that, as such right did not inhere in her, the fact that she united with her husband in the assignment of the policy did not aid in passing to the assignee the right to demand or receive such cash surrender value upon its debt. It is unnecessary to pass upon this contention, for, if sustained, it would still leave to be determined appellant’s principal and final contention, which is, that the cash surrender privilege provided by the policy was personal to Ed L. Garvin and did not pass to the bank by tne assignment in question. This contention is rested wholly upon the cases of Townsend’s Assignee v. Townsend, Etc., 127 Ky., 230, and Moser v. Connecticut Mutual Life Insurance Company, 134 Ky., 215, neither of which, in our opinion, sustains it. In each of these cases the life policy was made payable to the insured’s wife, or if she was dead, to his children ; and each contained a provision that at the end of ten years, or at the end of each five year period thereafter, the company would pay to the insured a cash value on surrender of the policy; therefore, it was held in each case that the right to demand and receive the cash surrender value of the policy was personal to the insured and could not be exercised by an assignee of the policy for value. The reasons for the court so holding are presented by the following excerpt from the opinion in the Moser case:
“The policy is verbatim the same as that before us in Townsend v. Townsend, 127 Ky., 230. In that case, Townsend, the insured, had designated himself in the application as the person to whom the surrender value was to be paid, and, after he had paid all the premiums on the policy, made a general assignment for the benefit of his creditors, by which he conveyed to his assignee all his property, including choses in action and other demands. The assignee demanded the surrender value of the policy at the expiration of the next five-year period, and his demand being refused, brought a suit, which was dismissed by the circuit court, and on appeal to this court the judgment was affirmed. There is no distinction between that case and this, except that here there was an assignment of the policy, which on its face pur
The difference between the Townsend and Moser cases and the instant case can readily be seen and understood. The beneficiaries in the Townsend and Moser cases were the wives and children of' the’ insured, the interests of the latter being contingent upon their surviving the mother. Each of the policies by its provisions excluded the beneficiaries or others from demanding or receiving the cash value of the policy by its surrender, by confining to the insured alone the right to terminate the policy by taking in cash its surrender value, thereby making the surrender privilege one purely personal to the insured, which could not be assigned to or vested in another. Here, however, while the wife of the insured is named in the .policy as a beneficiary, her right to the proceeds of the policy is made to depend
It is apparent that the appellant is resisting the claim of the appellee by interposing for the insured and the latter’s wife, a defense which they, though constructively summoned in the case, have failed to make to the credit- or’s action. It is true that the testimony furnished by the deposition of the wife, Bettie Garvin, manifests an unwillingness on her part to be bound by the assignment, but no attempt was made by her or her husband, by answer or otherwise, to attack its validity in this case; and as they, hy reason of the character of the action and the constructive service had upon them, will be precluded by the judgment from any future attack upon it, appellant is estopped to complain of the judgment upon any of the grounds, it has urged against it.
The judgment is affirmed.