Richardson v. White

| Mass. | Oct 23, 1896

Holmes, J.

The plaintiff advanced money to the defendant’s intestate, Edson Clark, on the strength of the latter’s promising to take out, and taking out, this policy as security for the advances. Clark wrote into the policy on its face, “ Payable in case of death to Wm. H. Richardson, as his interest may appear,” and several times exhibited the policy to the plaintiff. These facts are sufficient to give the plaintiff the security which he understood that he got. Providence County Bank v. Benson, 24 Pick. 204, 210. Stearns v. Quincy Ins. Co. 124 Mass. 61" court="Mass." date_filed="1878-02-05" href="https://app.midpage.ai/document/stearns-v-quincy-mutual-fire-insurance-6419127?utm_source=webapp" opinion_id="6419127">124 Mass. 61, 62. It turns out that the plaintiff’s claim will exhaust the policy. But if this were otherwise, there is no longer any doubt that an assignment of part of a fund is good in equity, as between the assignee and assignor, that the insistence on the necessity of a delivery of the document of title in Palmer v. Merrill, 6 Cush. 282, 286, is a mistake so far as equity is concerned, if the assignment has been communicated to the assignee and assented to by him, or that such an order as the above, under the circumstances, is sufficient to constitute an assignment in point of form. James v. Newton, 142 Mass. 366" court="Mass." date_filed="1886-09-07" href="https://app.midpage.ai/document/james-v-city-of-newton-6422131?utm_source=webapp" opinion_id="6422131">142 Mass. 366. Pom. Eq. Jur. § 1280, note. Macomber v. Doane, 2 Allen, 541.

In this case, as in James v. Newton, the insurance company sets up no defence to the policy, and submits to the court the question who is entitled to the fund, so that there is no need to consider what its rights would have been.

It is fair to mention that in James v. Newton notice of the assignment had been given to the debtor, which does not appear affirmatively in the report of the evidence in the case at bar. But assuming that notice would be necessary as against a later bona fide purchaser for value, the insolvent laws do not put an assignee in the position of a bona fide purchaser of property of which the insolvent had the bare legal title. Low v. Welch, 139 Mass. 33" court="Mass." date_filed="1885-02-28" href="https://app.midpage.ai/document/low-v-welch-6421598?utm_source=webapp" opinion_id="6421598">139 Mass. 33. As between the parties and those who stood in their shoes, notice was not necessary. Gorringe v. Irwell India Rubber & Gutta Percha Works, 34 Ch. D. 128.

Decree affirmed.