| Ill. | Apr 15, 1866
delivered the opinion" of the Court:
It is insisted, that this policy of insurance could not be assigned under the laws of Hew York. Also that the contract was entered into in that State, and notwithstanding the litigation is in the courts of this State the laws of that State must govern the rights of the parties to the policy. To ascertain whether the laws of Hew York must govern the question of the right to assign the policy, it will be proper first to determine whether the policy was made in Hew York. The evidence shows, that the applicant, the person whose life was insured, and the agent of the company to whom the application was made, all resided in Chicago. The application was also made in that city, and was forwarded to New York by the secretary of the company. On this application a policy was returned containing a provision, that it should not be binding until it should be countersigned by T. L. Miller of Chicago, and the advance premium should be paid. It appears that Miller countersigned the policy and the advance premium was paid and the policy was delivered to the assured in Chicago.
The instrument sent from New York by the company was incomplete, as it was not fully executed, and declared on its face that it was void until it should be countersigned and the premium should be paid. How an instrument which declares that it is void until other acts are performed can be regarded as complete and binding we are unable to comprehend. Had nothing farther been done after it came from New York, could there have been the slightest pretense that it could operate as a binding contract? We think no one would have so contended. It was an inchoate, imperfect instrument, lacking essential and material acts to complete its binding force as a contract. And it will be observed that the final acts were to be, and were, performed in this State. And when they were performed, the instrument then for the first time became a binding instrument. It, then, in fact, and in contemplation of law, was executed in this State. It was also to be performed in this State. It must, therefore, be governed by our laws and not those of New York.
While this is not such an instrument as can be assigned at the common law, or under our statute, so as to pass the legal title to the instrument or the money, and while an assignment of a part of the money due on any instrument does not transfer the legal title, it is such an equitable assignment as will be protected and enforced in equity. The assignment of a portion of the money specified in this instrument was valid in equity, if a married woman has the power to assign and transfer her sole and separate property and choses in action. This case mainly depends upon this question, as the fact that appellant executed the assignment is not seriously questioned.
The policy declares, in terms, that it is assignable. It provides for the payment of the money to the assured or to her assigns. So far then from such an assignment being prohibited, it is authorized by the terms of the policy. ¡Nor can it be doubted that it was the sole and separate property of Mrs. Pomeroy. And under the law she would have the power to pledge it as. a security for the debt of her husband. Unless restrained by the- deed or a marriage settlement under which a married woman holds her separate personal property, she may pledge or- dispose- of it in equity independent of the statute. 2 Story’s Equity, §§ 1389, 1390, 1393 and 1394, and authorities there cited. This policy being the sole and separate property of the wife, she is bound in equity by this assignment.
Again, the act of the general assembly of the 21st of February, 1861 (Sess. Law 143), declares, that all of the property, both real and personal,, belonging to any married woman, as her sole and separate property, or which she owns at the time of her marriage, or which she may acquire during her coverture, in good faith from any person but her husband, notwithstanding her marriage, shall be and remain her separate property, under her sole control, and be held, owned, possessed and enjoyed by her as though, she was sole and unmarried, free from the interference or control of her husband. The application for this policy was in the name of Mrs. Pomeroy, and it was issued to her, and it is not denied that it was her sole and separate property, and if so,.under this act it was at her disposal and under her control, and no reason is perceived why her assignment to appellee was not binding in equity, and if so she cannot repudiate her act.. Under the statute she is entitled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers. If it gives, the rights of sole ownership, it must- impose the liabilities incident to such a right.
After,-a careful examination of all the evidence in the case, we are unable to say that other securities were specifically pledged by the husband in his lifetime, for the payment of the' debt to secure the payment of which this assignment was made.. Nor does it appear that the debt was paid. Defendant Howe testifies that it was not, but remained due and owing at the trial. He also swears that the other securities were pledged for the payment of indebtedness of Pomeroy to witness and his partner, and that this was his individual debt, and was secured by no other pledge. Nor is this evidence contradicted or overcome by other testimony in the case. In this entire record we perceive no error requiring the reversal of the decree of the court below, and it is affirmed.
Decree affirmed.