26 S.E. 92 | N.C. | 1896
(after stating the facts). At common law the husband and wife, being deemed one person, were incapable of contracting with each other, and it was necessary to convey to a third person, as a conduit, in order to pass the title to property from one to the other. The rule was different in equity, where assignments or conveyances were held to raise a trust in favor of the assignee or grantee. Now, however, the wife is allowed to acquire title to property conveyed to her by the husband *294
or any other person, the conveyances being liable, like other deeds or instruments that pass title, to impeachment for fraud upon sufficient grounds. Walker v. Long
The wife, certainly with the assent of her husband, is empowered by law to assign her interest as a beneficiary in a life or fire insurance policy to a third person and where both join her interest passes, unless it is a violation of some enforceable stipulation in the contract of insurance to attempt to transfer the interest in that way. Here, if instead of the notice sent out by the company, it had assented to the (487) validity of the transfer, such assent would have operated as an estoppel on it to deny the right of the husband to recover in case *295
of the wife's death. Blackburn v. Insurance Co.,
The mutual stipulations of the plaintiff as agent and the defendant company were dependent the one upon the other, and as between them the failure to furnish a policy on the life of the wife, of which the husband should be the beneficiary, operated to relive him from the payment of a promissory note given as a consideration for such a policy. The two policies were of such a nature that the consideration was not divisible. It was given to provide for each in case of surviving the other. Clark, supra, pages 651 to 653; 2 Parson's Cont. (8th Ed.), bottom page 645 and note. If the defendant had paid the money instead of giving his note he could, on the failure or refusal to comply with the mutual and dependent promises, have recovered back. 1 Wharton, supra, sec. 520. For a like reason he could avoid the payment when sued by the payee on a promissory note given in lieu of the money. The defendant made application for two policies. *296
The insurance company distinctly and unequivocally refused to recognize the validity of the assignment, and while it recognized the agency of the plaintiff Sydnor to take the defendant's note or collect the premium paid as a consideration for a certain policy, it attempts to repudiate the promises he made as an inducement in procuring the execution of the note which was given in lieu of the money and constituted the consideration. It has been distinctly held by this Court that, where the insured is induced to pay money by a representation made by a local agent of the insurer, the latter will be estopped, after receiving the money so procured and placing it in its coffers, from denying the authority of the agent to make the representation which induced its payment. Bergerow v. Ins. Co.,
There was error in the instruction that the plaintiff complied with his contract, and a new trial is granted to the defendant.
NEW TRIAL.
Cited: Lamb v. McPhail,