This case differs from that of Albert v. Ins. Co.,122 N.C. 92, in one most material respect. In that case the person whose life was insured paid all the premiums, and the Court did not find it necessary to decide whether the beneficiary had an insurable interest in the life of the insured person. In the case before us, at the very time when the policy was issued, in which the life of the plaintiff's intestate was insured, there was an assignment of the policy to the beneficiary (105) (the defendant Dewey), who paid the first and all of the premiums.
The first question that presents itself in the case is, Did the defendant have an insurable interest in the life of Powell, the plaintiff's intestate? The defendant avers that he did, and that the policy was duly and legally assigned to him by the intestate. The ground of this averment is that the plaintiff and intestate were copartners. No particulars of the partnership are set out. There is no averment that the deceased copartner Powell was indebted to the defendant or to the partnership in any amount, or that the deceased was to furnish any labor, skilled or otherwise, as his contribution in lieu of money.
Upon such conditions we are of the opinion that the defendant had no insurable interest in the life of the deceased partner. In the case ofTrinity College v. Ins. Co., 113 N.C. 244, this Court said that "under certain conditions a partner has an insurable interest in the life of his copartner," and cites Ins. Co. v. Luchs, 108 U.S. 198. There the fact was that Luchs had furnished to the copartnership fund for his copartner
Dillingburgh, $5,000, which was unpaid. We suppose that was the condition referred to in the opinion in the Trinity College case, under which a partner might have an insurable interest in the life of his copartner. It is true that in Ins. Co. v. Luchs, supra, the Court said that the continuance of the partnership was also a reasonable expectation of advantage to Luchs and gave him an insurable interest in the life of his copartner. But we are of the opinion that that position is against the weight of authority. The policy being void, then, because the defendant had no insurable interest in the life of Powell, no action could have been maintained on it by the defendant against the (106) insurance company. Windley v. Burbage, 108 N.C. 358. Neither can the plaintiff maintain this action, for, looking at it in any view, it has its foundation on the policy, which is void. Windley v. Burbage,supra.
The plaintiff's counsel cited us to Cheeves v. Anders, 87 Tex. 287
[87 Tex. 287], and A. E., vol. 3, p. 592, to show that the next of kin or the personal representative of the assignor of a void policy could, in an action against the beneficiary in such a policy, recover the amount which had been paid to him by the insurance company. But we cannot see the principle upon which these authorities are based, and the decisions themselves do not give reasons for their existence. Besides, that position has been condemned in Windley v. Burbage, supra.
No error.