179 Ga. 751 | Ga. | 1934
This case arose upon a petition for interpleader filed by a fire-insurance company, the question being whether the proceeds of a policy should be paid to the holders of a security deed, who were also garnishing creditors, or to one holding the policy under an assignment made by the insured after the burning of the property covered by the policy. After the filing of answers by those asserting the conflicting claims, the case was tried before a jury, and resulted in a verdict in favor of the assignee. The losing claimants filed a motion for a new trial, which was overruled, and they excepted. The following statement will be sufficient to illustrate the questions for decision in this court:
On January 1, 1925, E. G. Vickery eonveyel to W. I. Suttles and A. B. Suttles a tract of land consisting of 150 acres, to secure
On February 25, 1931, before the execution of the assignment}
As indicated above, the verdict was in favor of W. C..Vickery, the assignee. In the motion for new trial filed by W. I. and A. B. Suttles, they alleged that the verdict was contrary to the evidence, and without evidence to support it. They also assigned error on parts of the charge of the court to the jury and on an omission to charge. .The instructions complained of were assigned as .error, on the ground that they permitted the jury to determine the meaning of the loan deed as to insurance, and of the stipulation in .the policy respecting the party .to whom, the proceeds should be payable; it being contended .that the writings were plain and unambiguous, and should.have been construed by the court instead of being submitted to the jury for their determination. The matter which it is alleged the court erroneously failed to charge was that the hold
The stipulation in the security deed to the effect that the grantor should keep the buildings on the land insured “against loss or damage by fire for an amount not less than none dollars, with loss, if any, payable to” the grantees, does not upon its face show any obligation to keep the buildings insured. If the stipulation could be said to be ambiguous, there was no testimony to explain its meaning; and in the absence of any such evidence it is a necessary inference that the parties used a form of deed which contained a clause for obligating the grantor to obtain insurance in a blank amount, but that the blank space preceding the word “dollars” was filled by the insertion of the word “none.” The deed thus, instead of creating an obligation to supply insurance, actually excluded such obligation. Cf. McCaslin v. Advance Mfg. Co., 155 Ind. 298 (58 N. E. 67).
The grantor in the security deed, who remained in possession and control of the property, had an insurable interest in the dwelling-house on which he procured the fire-insurance policy to be issued. The house was insured as the property of the grantor. Prima facie, therefore, the right to the proceeds was in him, despite the fact that he had executed the security. New Jersey Insurance Co. v Rowell, 157 Ga. 360 (121 S. E. 414); Pike v. American Insurance Co., 160 Ga. 755 (129 S. E. 53); Staten v. General Insurance Cor., 38 Ga. App. 415 (144 S. E. 53); Ellis Motor Co. v. Hancock, 38 Ga. App. 788 (145 S. E. 518); Ætna Insurance Co. v. Foster, 43 Ga. App. 658 (159 S. E. 882); Home Insurance Co. v. Harrison, 48 Ga. App. 705 (173 S. E. 198).
The policy contained the following stipulation: “This association shall not be released from any obligation in case of loss or damage, because of liens, mortgages, or defective titles to property; but when it shall appear that insured is not the rightful or legal owner of the property, then shall the insurance, or such part of same as may not belong to the insured, be paid to the proper owner.” This clause, without more, did not prevent payment to the insured, where he had an insurable interest. He was entitled to payment unless it appeared that he was “not the rightful or
The case might be different if the deed had contained an obligation upon the part of the grantor to supply insurance. American Ice Co. v. Eastern Trust & Banking Co., 188 U. S. 626 (23 Sup. Ct. 432, 47 L. ed. 623); 26 C. J. 438, § 588; 14 R. C. L. 1367, § 536. But where a mortgagor, or grantor in a security deed, insures his own interest and pays the premium, and there is no covenant in the mortgage or security deed requiring him to insure the property for the benefit of the holder thereof, the person so obtaining the insurance may claim the entire amount of the proceeds, to the exclusion of such creditor, unless the policy is assigned to the creditor or the insured acted as agent for him in obtaining the policy. Cf. Wheeler v. Factors &c. Ins. Co., 101 U. S. 439 (25 L. ed. 1055); Farmers Loan Co. v. Penn Plate Glass Co., 186 U. S. 434 (22 Sup. Ct. 842, 46 L. ed. 1234); 26 C. J. 438, § 587; 14 R. C. L. 1365, § 535. It follows that the holders of the security deed were not entitled to the fund in question, either by reason of the condition of the title or by virtue of the stipulations contained in the security deed and in the policy of insurance. This ruling leads to the further conclusion that the judge did not err
We next consider the contest between the assignment and the garnishment. The assignee contended that the. policy was transferred to him to secure a note which he held against the assignor. The evidence authorized the inference that the note was not fictitious, but represented a real transaction; and also that the assignment was made and accepted in good faith. In his answer the assignee alleged that immediately after the transfer he gave notice of it to the insurance company. This allegation was admitted in the pleadings filed by the holders of the security deed, who were the garnishing creditors. The assignment was made in March after the fire in January, while the garnishment was not issued until October of the same year. This was a legal as distinguished from an equitable assignment; and although a transfer to secure a pre-existing indebtedness may not, as against a garnishing creditor, involve a sufficient consideration to support an equitable assignment (Few v. Pou, 32 Ga. App. 620, 124 S. E. 372; Brown Guano Co. v. Bridges, 34 Ga. App. 652, 130 S. E. 695; First National Bank of Thomasville v. MacDougald Co., 45 Ga. App. 853 (3), 166 S. E. 256), the same is not true of a proper legal assignment. Cf. Western Union Telegraph Co. v. Ryan, 126 Ga. 191 (55 S. E. 21); Central Railway Co. v. King Brothers Co., 137 Ga. 369 (73 S. E. 632), 5 C. J. 929-31, 971, §§ 90, 91, 162. This must necessarily follow from the provisions of the Civil Code of this State, to wit: “A debtor may prefer one creditor to another, and to that end he may bona fide give a lien by mortgage or other legal means, or he may sell in payment of the debt, or he may transfer choses in action as collateral security, the surplus in such eases not being reserved for his own benefit” (§ 3230); and “Persons and firms may make assignments and prefer creditors” (§ 3232). See also Boykin v. Epstein, 94 Ga. 750 (22 S. E. 218). In Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619 (2) (28 S. E. 393),
If the evidence for the assignee was true, there was no escape from the conclusion that he was entitled to the fund, the assignment having been executed upon a sufficient consideration -and before the issuance and'service of the garnishment. The question of fraud was the only issue of fact to be determined. As a general rule, the existence or non-existence of fraud is a matter for solution by the jury, and so it was in the instant case. Under the evidence this court can not say as .a matter of law that the assignor was not indebted to the assignee as claimed, or that the a.s
Judgment affirmed.