73 Me. 541 | Me. | 1882
The bill alleges, and it is either admitted in the answers, or the proof shows, that the complainants were co-sureties with Joseph Adams the testator of one of the respondants upon a bond given by George F. Adams the intestate of the other respondent, as principal, to the Gardiner National Bank, conditioned for the faithful performance of said principal’s duties as cashier of said bank, with the usual accompanying covenants; that said George F. Adams proved to be a defaulter, and the two complainants being called upon by the bank, October 6, 1879, after the death of their co-surety Joseph Adams, and of the principal George F. Adams, (the latter of whom died April 1, 1879, and the former April 24, 1879,) paid the whole of the deficit in the cashier’s accounts amounting to thirteen hundred and ninety-nine dollars and seventy-two cents, each paying one-half of said sum, and the estates of the principal and co-surety contributing nothing to the discharge of the bond thus procured by the complainants ; that the estates of both the principal and co-surety are in process of administration in probate court as insolvent estates ; that George F. Adams left no property real or personal of any considerable amount; that said George F. in 1867 took out an insurance policy on his own life payable to his personal representatives for the sum of three thousand dollars, which was valid at the time of his decease, bearing on it an assignment in due form to Joseph Adams, the complainants’ co-surety, subscribed by said George F. Adams, communicated to the insurance company and the company’s consent thereto obtained; that the said assignment purported to be in consideration of said Joseph Adams’s liability for said George F. on two promissory notes of three hundred and fifty dollars each and two bonds one of which wa's'the bond above mentioned, to the Gardiner Bank, (on which the complainants also were sureties,) and the other a bond given by said George F. as administrator of the estate of one Wilson, and that it purported also to be given to indemnify said Joseph for any sums he might be obliged to pay on account of said liabilities or other
While some of the facts above recited are formally denied in the answers on the ground of want of knowledge on the part of the respondents, the proof of those not admitted is plenary, and the real controversy between the parties is substantially limited to three inquiries. Was there collusion between the respondents to deprive the complainants of their equitable rights in the proceeds of the life policy ? Was the assignment from George F. to Joseph Adams perfected by delivery, and if it was, what was its effect ? Have the complainants such an ample and sufficient remedy at law as precludes a resort to equity and the maintenance of this process ?
Certain other facts which have a bearing upon the decision of these questions ought here to be noted.
George F. Adams left no widow but did leave three legitimate minor children who have a legal guardian, the sister of said George F., but who are not here represented and have not been made parties to this suit, though it is apparent they have an interest in the questions here presented. The body of the assignment upon the back of the policy is in the handwriting of Joseph Adams who was a lawyer of long and reputable standing.
The signature of George F. Adams was attested by two witnesses, one of whom was his sister, and it was affixed on the day when he was about to leave for California by a night train
It appears further that upon the suggestion of the agent to Joseph Adams, that the company would probably purchase the policy of him, said Joseph replied that he preferred to keep it running and afterwards when an installment of premium fell due he paid it by his check for sixty-three dollars. The deposition of one of the complainants offered to prove, and mostly consisting of, declarations of Joseph Adams is incompetent as to all matters occurring in the lifetime of the deceased. R. S., c. 82, § 87, as amended by c. 145, laws of 1873 ; Trowbridge v. Holden, 58 Maine, 120.
The depositions offered by the respondents to prove declarations of their decedents are alike inadmissible, though for a different reason. The plaintiff’s testimony is incompetent because a party shall not and ought not to be heard to testify in his own case when his adversary is prevented by death from appearing to testify in relation to the same matters. The temptation to falsehood and the danger of injustice thence arising are too great.
On the other hand the depositions offered by defendants cannot be received so far as they consist of declarations made by the decedents in their own favor or in support of the position now taken by their representatives, when not made in the presence of the complainants nor accompanying any act which properly belongs to the transactions between the parties.
. The written request of Joseph Adams to the two complainants, reciting the fact of the assignment of the policy to him and asking them to pay his third of the liabilities under the bond to the
Turning now to the principal questions discussed in the arguments of counsel :
I. We cannot say upon the proof here presented that the executrix of the will of Joseph Adams was guilty of any fraudulent collusion with the co-respondent for the purpose charged of' depriving the complainants of their equitable rights in the pro
The proceeds of this policy if not assigned by George F. Adams, would go under E. S., c. 75, § 10, to his minor children after deducting the premium paid therefor within three years prior to his decease, and would not constitute assets of his estate for the payment of debts.
But George F. Adams in his lifetime had entire control of it. It was competent for him to sell it to the company, to raise money by pledging it as security, or to use it to secure those who had •contracted liabilities in his behalf thus indirectly securing his debts with it. But any remainder after the discharge of the liens which he placed upon .it would still enure to the benefit of his children. It made little difference then whether the sum due on the policy was collected by the executrix of the assignee or the administrator of thp party insured, provided proper security were given that it should be forthcoming when it should be determined who was entitled to it. It might well be more convenient for the
II. We can have no doubt that the assignment was perfected by delivery. Aside from the clearly proved facts of actual possession and control by Joseph Adams after his son had left home never to return alive, it is simply incredible that parties situated as they were should have taken the trouble to do what they confessedly did .towards effecting a transfer of the policy without completing the transaction by an actual intentional delivery and acceptance. No other hypothesis will explain the subsequent acts and doings of Joseph Adams (who was reputed an honest man and a respectable lawyer) in procuring the assent of the insurance company to the assignment, in paying the subsequently accruing premium, and in.using the assignment to procure a credit for himself and to induce the complainants to pay his third of the amount due the bank as well as their own.
The transfer being complete, under the circumstances here developed, we think it enured to the benefit of the complainants as co-sureties with Joseph Adams.
The general doctrine on which this depends was incidentally recognized as sound by this court in Gould v. Fuller, 18 Maine, 366, and it is supported by the cases there cited. It matters not that the security may have been given for the indemnity of one of the sureties only. The rights of the co-sureties result not from contract or the intention of the principal and the surety who is indemnified, but from the effect of settled principles of equity arising out of the relation which the co-sureties bear to each other.
In one of A. C. Freeman’s useful notes in 15 American Decisions, 526, (appended to the case of Moore v. Moore, 4 Hawks, 358, there given) may be found the general rule as stated in Brandt on Suretyship, § 233, from which it appears that ordinarily when one of several sureties has the means of indemnification for himself, put into his hands by the principal before the debt is paid, he becomes trustee of it for the benefit of all the sureties, " even though he obtained it by his own exertions and it was intended for his sole benefit.” The case (Moore v. Moore,) and the note of Mr. Freeman, alike emphasize the well taken distinction that a surety before becoming such, may fairly stipulate for a separate indemnity for himself, and if he does so, his co-sureties are entitled to the surplus only, after his exoneration, and other authorities to this effect are cited. But this is of no importance in the case at bar, as the fund assigned, seems to be ample for the security, not only of Joseph Adams but of the complainants also. See also, White and Tudor’s Leading Cases in Equity, part i, page 171. Nor does it seem to affect the co-surety’s right in such case that the conveyance is conditioned only for the indemnity of the party to whom it is given, and not for the payment of the debt. New Bedford Savings Inst. v. Fairhaven Bank, 9 Allen, 175.
III. It was formerly supposed that all claims and questions between co-sureties (except where there was an express contract between them, even those where contribution only was sought,) were properly cognizable only in equity. Story’s Eq. Jur. Kedfield’s ed. 1866, c. viii, § 495.
While it is now well settled that an action at law may be maintained by one co-surety against another without an express con
To say nothing of the insolvency of the estates both of the principal and co-surety in the present cáse, it is obviously desirable that the rights of the complainants in the fund created by the assignment of the life policy should be ascertained by a process in equity, in which all the parties interested in that fund may be before the court, and perhaps a multiplicity of suits avoided. It may well be that these respondents are stimulated to defend here by their accountability in various contingencies to the children of George F. Adams. Both the valid completion and the effect of the assignment from him to his father, were in controversy here. It would be little to the credit of the adtninistration of justice if, when in a suit at law one or the other or both of these respondents had been held liable to the complainants as for money had and received, another jury at the suit of the children should find that there was no valid delivery of the assignment, and consequently hold them accountable to the children also. Manifestly it is a case where the rights of all concerned should be ascertained in one process in equity. This is not a case where the proceedings at law in the suit between the two respondents which they have offered in evidence would bar the rights of the complainants. It only serves to illustrate the necessity for a resort to the equity jurisdiction; in which alone
But by some unaccountable oversight, the children of George F. Adams have not been made parties to this suit. Their guardian gives testimony in behalf of the respondents, and it may be true that the defence is conducted wholly in their interest and behalf, but we can have no judicial knowledge of that fact. Courts will carefully guard the rights of infants interested in all such processes. Stinson v. Pickering, 70 Maine, 273; Tucker v. Bean, 65 Maine, 352. This case is in no condition for the entry of a. decree until the minor children of the assignor have been regularly made parties and have had an opportunity to to be heard if they have anything further to allege and prove.
The bill also needs amendment in the prayer for a decree, so far as the executrix is concerned. It asks for a decree that Joseph Adams held the assignment in trust for the benefit and security of his co-sureties, the complainants, as well as himself, but is silent as to the only party who can now legally represent Joseph Adams in the premises.
Remanded to nisi prius for further proceedings in conformity herewith.