37 Tenn. 269 | Tenn. | 1857
delivered the opinion of the Court.
This was a hill of interpleader. The facts are these: On the 2d of April, 1849, a policy of insurance on the life of Thomas Hamilton, for the term of life, in the amount of $5000 00, in consideration of the annual premium of $141 05, underwriten by the complainant, an incorporated company, organized on the principle of mutual assurance, was issued to said Hamilton. By the express terms of the policy, the company agree, “to, and with the assured, his executors, administrators, and assigns, well and truly to pay, or cause to he paid, the said sum insured, to the assured, his executors, administrators, or assigns, within sixty days after due notice, and proof of the death of the said Thomas Hamilton.”
Shortly afterwards, the assured assigned and transferred the policy, by a writing under seal, made upon the margin of the policy, in the following words:
“ I hereby make over this policy of insurance on my life, to Adelaide Eliza Goram, a colored woman; and desire that, at my death, the amount, say five*271 thousand dollars, he paid to her. Witness my hand and seal, this 22d day' of August, 1849.
Thomas Hamilton, [l. s.]
Subsequently, on the 20th of February, 1850, this transfer was acknowledged by Hamilton, in the presence of an attesting witness, as appears by an endorsement on the face of the policy. There also appears on the face of the policy, the following written indorsement: “Pay as aboye. Hew Orleans,' 12th July, 1854. Thos. Hamilton.”
Thomas Hamilton, the assured, died on the 25th of' August, 1855. Shortly after his death, the defendant, as assignee of the policy, (who resides in Hew Orleans,) presented the same to the office, and demanded payment of the insurance money. The defendant, Andrew Hamilton, who took out letters of administration on the estate of the deceased, in Davidson county, Tennessee, also set up a _ claim to said sum of five thousand dollars, and demanded payment of the same from the office. :
To adjust these conflicting claims, and to have .it judicially determined who was entitled to the money, the company, for its own protection, brought this bill, to which both claimants are parties.
The defendant, Groram, states in her answer, and the 'statement is uncontroverted, that said policy was delivered to. her by the ' assured, “ on or about the date of said assignment, and has been ever since in her possession and custody.”
The defendant, Hamilton, as administrator, states in his answer, that the estate of the deceased will probably turn out to be insolvent, and that the siim in controversy will be required for the payment of debts. And
! The question, as to the necessity of the knowledge and assent of the underwriters, to the assignment of a pohpy, is very different with reference to fire policies, from life and marine policies. The assent of the insurer to the assignment, in order to give it validity as against the office, in the case of a fire policy, is generally admitted; and notice of the assignment must therefore be given, or the assignee will not be entitled to demand the insurance money. The reason of this requirement in fire policies, is obvious. In such cases, the personal character of the assured, for integrity and prudence, is a most important consideration. In the language of the books,- there is infused into the contract of fire insu-
But no such reason exists in the case of an insurance on the life of an individual, nor in the case of a marine policy. And in the latter cases, the' assent of the insurer to the assignment of the policy, or notice of such assignment, is not' indispensable, in order to entitle the assignee of the policy to recover the money from the insurer. See Angelí on Insurance, sec. 199, 200. 3 Maryland R. 341, 353.
We are of opinion, therefore, that as between the insurer, and the assignee of a life policy, notice of the assignment is not required, to complete the right of the latter, to receive the insurance money from the former.
^tlpon principle, as it seems to us, the right of"^ the assignee must be held to be perfect in a ease like the present, by force of the assignment alone. Thisj must be so, if we are correct in the assumption, that by the transfer he becomes instantly invested with the legal interest in the policy, for if he takes nothing more than a mere equitable interest under the assignment, it will perhaps inevitably follow, that the debt still continued subject to the order and disposition of the assured, so far at least, as after his death, a payment to his personal representative, without notice of the
That the assured has an assignable interest, and that a life policy .is assignable, admits of no question. This is so; first, upon the general principle of law, applicable to this subject. See Angelí on Insurance, sec. 325. Secondly, it is so by the express stipulation of the contract. By the terms of this policy, the contract is with “the assured, his personal representatives and assigns;” and the promise in fact, and in law, is to pay the money to the present representative or assignee, as the case may be, within sixty days after due notice, and proof of the death of the person assured. And thirdly, we incline to the opinion, that a policy in the form of the present one, is assignable within the spirit of the act of 1801, ch. 6, sec. 54, so as to pass the legal interest in the policy, and the money to become due thereon, to the assignee, and entitle him to sue thereon in his own name. By this act, it is declared that upon all bonds, bills, or notes, for specific articles, or for the performance of any duty, suits may be brought, both in courts of law. and equity, in the names of the assignees. The policy before us, is not under seal. It is an agreement or promise, in writing, to pay to the personal representative, or assignee of the person assured, the sum of five thousand dollars, within sixty days after the happening of a certain event, namely, the death of the person to whom the policy issued. This is not a note, in the technical sense, but we think it is a note for the performance of a duty, in the enlarged sense, in which the word note is used in the statute. It is true, that the ultimate liability of the company to pay
We have seen that the assignment, ipso facto, affects the latter object, by divesting the assured of all interest in, and power of disposition over the policy. And as regards the underwriter, no such hazard can be supposed to exist. He cannot be required to pay the in-
We- have- been referred to several cases in the English books, for the purpose of showing, that as against the assignees in bankruptcy of the person assured, notice of the prior assignment of a life policy is necessary. These cases proceed upon the construction and effect of certain clauses of the bankrupt and insolvent debtors acts, which vest in the assignees all the property, including securities, such as policies of insurance, that may happen, with the consent and permission of the true owners, to be in the order and disposition of the persons falling under the operation of those statutes. These cases, of course, have but little application to the case before us. We have also been referred to the doctrine applicable to the assignment of equitable right's, and choses in action, as recognized by this Court in Clodfelter vs. Cox; 1 Sneed, 330, 339; according to which, in a contest between different assignees of the same equitable property, he will be preferred, who has first given notice of his assignment to the debtor. And consequently a second assignee of a chose in action, or incumbrance upon equitable property, without notice of
But this doctrine applies to the transfer of equitable interests, and consequently has no bearing upon assignments of negotiable instruments, or of instruments -which, though not negotiable by the law merchant, are made assignable by law, so as to pass the legal interest, and entitle the assignee to sue in his own name.
The second ground upon which the claim of the assignee is attempted to be resisted, is that the assignment was voluntary and without any consideration.
This objection cannot prevail. The view we have taken of the case, brings it to a contest, simply, be tween the office and the assignee of the policy. And without any intimation of an opinion upon the question, whether the insurer could avail himself of this objection as against the assignee of the policy, it is sufficient for the determination of the present case, that the assignment being under seal, a consideration is to be presumed, and there is no proof in the record to repel this presumption.
In the third place, it is said, that the defendant Adelaide, has failed to establish the fact, that she i§ a free woman; and, therefore, no decree can be made in her favor. Upon the state of the case, as presented by the pleadings, for there is no proof upon the point, the question of defendant’s freedom cannot properly be regarded as in issue. The bill, in one part of it, states
All the other objections urged against' the right of the assignee, resolve themselves into one or other of the grounds before noticed.
The decree will be affirmed.
Motion to reconsider the Clause on a New Point.
After the foregoing judgment in this case had been announced, it was ascertained that at the foot of the original policy, the following words were written:
“N. B. If assigned, notice to be given , the company.”
Which words having been omitted by the clerk, in the transcript furnished for this Court, and on which the cause was heard and decided, we are now asked to re
The judgment will remain unchanged.