The various errors assigned by the appellant are grouped in his brief for purposes of argument, and will be stated and discussed in this opinion, as so presented.
The first alleged error is that the court incorrectly held that the facts found brought the case within the purview of General Statutes, § 5277, which secures the payment to the wife upon an insurance policy effected by her husband with her as the beneficiary, or when she takes the benefit of a policy transferred to her, free from all claims of creditors, subject to certain other provisions not material to the present discussion. In the construction of statutes of other States of similar import and of like purpose, there is not an unanimity of authority, and as we have arrived at a conclusion favorable to the contention of the defendant Meyer on other grounds, it is not necessary to pass upon this question.
The second point alleges error in that the court, upon the facts found, ruled that a trust existed in favor of Meyer, and that the private oral agreement between Mayo and Meyer was valid against the appellant. The defendant Slade insists that the payment
of the premium by Meyer, the delivery of the policy to her and her continuous possession thereafter, and her agreement with Mayo, cannot reach the proceeds of the policy as against the appellant, a bona fide attaching creditor; that in order to effect a trust settlement in favor of Meyer, a disposition to that effect should have been included in the instrument itself; and further, that all oral agreements simultaneous with the execution and delivery of the policy are merged in its terms and cannot modify it, since the policy itself provides the manner of payment of the proceeds. This does not meet the ruling of the trial judge, which was not that the provisions of the contract — terms of the policy — were modified, but that the equitable title to the instrument itself and its proceeds passed to Meyer. The defendant Slade further claims that it does not appear from the finding that any changes or modifications were made in the policy, and that by its express provision no change or modification could be made, except by written agreement. This is true, but no attempt was made to alter the contract. The agreement of Mayo and Meyer was not to modify the contract, but to change its ownership, and to make the proceeds, upon the maturity of the policy, payable not to Mayo, legally entitled thereto by its terms, but to Meyer as equitable owner of whatever Mayo would otherwise have had.
The provision in the policy requiring that assignments, to be binding on the company, shall be in writing and a copy furnished to it, is one for the benefit solely of the company, and may be waived.Spencer v. Myers, 150 N.Y. 269, 44 N.E. 942; 4 Joyce on Insurance (2d Ed.) §§ 2326, 2326a; 2 Cooley, Briefs on Insurance, 1100. The plaintiff certainly has waived it in the instant case, by bringing its action of interpleader in this form. It has expressly alleged in
the complaint that it has no claim upon the property, and has left the defendants to assert their rights thereto. Had the plaintiff desired to stand upon this provision of the policy, it could have raised the question by bringing the action of interpleader in the statutory form and thereby secured a determination of its own right in this regard, as well as a determination of the rights of the defendant Slade. Or, plaintiff might have refused payment to Meyer and defended an action brought by her, in which indemnification from defendant Slade could have probably been obtained. This express provision did not in any way inure to the benefit of Slade or any other creditor.
To have any standing by reason of want of notice of the assignment of the policy by Mayo to Meyer, defendant Slade must rely upon some defect or invalidity at common law as to the assignment of choses in action with respect to the method of the assignment in connection with notice thereof to the plaintiff, and this he does by claiming that an assignment, to have validity, must be brought to the notice of the debtor. Supporting this contention he cites Bishop v. Holcomb,10 Conn. 444. The case is a leading one, and holds that, in order to perfect the assignment of a chose in action as against bona fide purchasers and creditors, notice of such assignment must be given to the debtor within a reasonable time. The case, however, further holds that such an assignment is valid between the parties without notice to the debtor, and creates an equitable interest which will be protected against all persons except those having superior equities, that is, persons presumed to have been misled to their harm by the want of notice. There is no claim that in the present case there existed any design to defraud creditors, and there is no claim that Mayo was insolvent, or that Slade was at that time a creditor;
the issuance of the policy in no way depleted Mayo financially, since Meyer paid the premium. The defendant Slade's interest presumably arose sometime afterward, and it is not claimed that he extended credit on the faith of the existence of this insurance policy or knew anything about it. His position was not therefore one involving an equity superior to that of Meyer. The assignment of the policy was good between Mayo and Meyer, and gave the latter an equitable ownership in the entire proceeds, leaving to Mayo only a bare legal title, held, as we shall hereafter see, for the benefit of Meyer. The contract was lawful and valid. Darcy v. Ryan, 44 Conn. 518; Gilligan v.Lord, 51 Conn. 562; Barbour v. Connecticut Mut. LiftIns. Co., 61 Conn. 240, 23 A. 154. The fact that Meyer was not in fact the wife of Mayo does not detract from the force of the reasoning on which these last cited cases proceed, especially when, as in this case, ample pecuniary consideration passed from Meyer when the policy was issued.
In the absence of fraud an attaching creditor takes only such title as the debtor had at the time, unless he has been misled by an apparent ownership of the property attached of the debtor, and has given credit on the faith of such ownership. Waterman v. Buckingham,79 Conn. 286, 64 A. 212; Shaw v. Jackson,92 Conn. 345, 102 A. 736; Fosdick v. Roberson,91 Conn. 571, 100 A. 1059.
The attack of the defendant Slade is, however, principally embodied in a claim that the transaction between Mayo and Meyer, as detailed in the finding of facts, does not constitute an agreement on the part of the former whereby he made a trust settlement upon the latter of the proceeds of the policy, taking into consideration the orality of the agreement and the obligations flowing from the terms of the policy.
Had Mayo executed an assignment in writing of the policy and filed a copy thereof with plaintiff company, he would have conferred upon Meyer a complete ownership of the contract and its proceeds. Not having done this, his gift of the policy created in Meyer a complete beneficial interest in the contract, while Mayo held the bare legal title for her benefit. We do not forget that we have held that the plaintiff has by its conduct in this action waived the requirement of a written assignment and notice, but it had not done so at that time, and the prerequisite of complete assignment was not complied with.
The creation of the trust relation between Mayo and Meyer required some sort of a transfer of the policy. Such a transfer was made by the agreement between them, that Meyer should be the full owner of the policy, that it was taken out for her sole benefit, that whenever the proceeds became available they were to be paid to her, and that she should keep possession of the policy. To this we may add that she paid the premium on the policy.
A parol assignment of a policy, accompanied by delivery, is valid to vest in the assignee an equitable title at least in the proceeds. 4 Joyce on Insurance (2d Ed.) §§ 2326, 2326a. "A delivery of the policy, with the intention on the part of both parties of thereby transferring certain rights, will operate as an assignment of such rights, without the formality of a written contract." 2 Cooley, Briefs on Insurance, 1100, and Supplement to same, Vol. 6, 428. Gledhill
v. McCoombs, 110 Me. 341, 86 A. 247, is an important case; and in the note to that case, reported in 34 Amer. Eng. Anno. Cases, 298, an extensive collection of supporting cases appears, evidencing the law of most jurisdictions. See also Janes v. Falk, 50 N.J. Eq. 468,26 A. 138; Travelers Ins. Co. v. Grant, 54 N.J. Eq. 208 33 A. 1060; Crews v. Crews' Admr.,113 Ky. 152, 67 S.W. 276. The following cited cases have an intimate bearing upon the agreements and surrounding circumstances in the instant case. Had Mayo gotten possession of the policy, he could not have assigned or otherwise disposed of the same as against Meyer, by reason of her equitable interest. Lemon v.Phoenix Mutual Life Ins. Co., 38 Conn. 294; Chapin
v. Fellowes, 36 Conn. 132. In Pingrey v. National LifeIns. Co., 144 Mass. 374, 11 N.E. 562, we find a case in which the facts are similar to those of the instant case. A son procured an endowment policy payable to himself if living and in case of death to his mother. There was an understanding when it was first taken out that it was obtained for the benefit of the mother, and on that understanding the sister and mother of the insured paid or contributed to the payment of the first premium. Afterward the son told his mother that he had procured the policy and showed it to her. There was a full understanding between them that the policy should be taken out for the benefit of the mother, and afterward that it had been so done. It was payable to her, with the intent that she should have the benefit. The court says: "This constituted a valid settlement in her favor. Nothing remained to be done by him to complete it. He might, indeed, afterwards fail to pay the annual premiums. This, however, does not prevent it from being a good trust." As a matter of fact, in this case the son married, surrendered the policy, and took out a new one payable to his wife, and died before the maturity of the second policy. The court held that throughout the transaction the son was a trustee for his mother, that he could not revoke the trust settlement, and the mother was entitled to the proceeds of the first policy. Chapin v.Fellowes, and Lemon v. Phoenix Mutual Life Ins. Co., supra, are cited and commented on, and considered as in accord with the position taken by the Massachusetts court.
Thus it follows that Mayo had, at the maturity, no interest or ownership in this policy that was beneficial, transmissible, or subject to attachment, by reason of his naked legal position as the insured, and the defendant Slade took nothing by his factorizing attachment. The trial court also placed its disposition of the case upon a finding of notice to the plaintiff of the assignment by Mayo to Meyer, in that the plaintiff was charged with notice and knowledge by reason of the fact that plaintiff's duly authorized agent who negotiated the issuance of the policy was present at the time the oral agreement was made between Mayo and Meyer and within hearing of what was said. The finding of notice is a conclusion as to an ultimate fact, based on the other facts just noted. Defendant Meyer claims that this notice to the agent, chargeable to the plaintiff, brings the case within the rule laid down in Bishop v. Holcomb, 10 Conn. 444, and relies upon our decision in Back v. Peoples National Fire Ins. Co.,97 Conn. 336, 116 A. 603, as supporting her contention. In that case it appeared that the defendant company issued a policy to the plaintiff covering a building which in fact was situated upon leased ground; the policy provided that in case the building stood upon ground not owned by the insured in fee simple it should be void. The insured expressly informed the soliciting agent of the fact that he did not own the ground whereon the building stood. We held that the knowledge of the agent of the true facts was the knowledge of the company, since the ascertainment of facts relating to the character and title of the property insured was peculiarly the function of a soliciting agent, and that he was acting within the
scope of his authority. We therefore concluded that the real agreement of the parties contemplated a policy upon a building on leased land, and sustained the reformation of the policy by the trial court. We do not think that the rather meager facts found in the instant case bring it within the purview of the case just considered. It does not appear from the record that the agent was other than an ordinary solicitor of life insurance, and as such his agency and function was not such as to charge the employing company with any facts which incidentally came to his knowledge regarding the disposition to be made of a policy when issued by reason of a conversation in his presence and hearing. It is not found that he actually heard the conversation, or that, if heard, he communicated it to the plaintiff. We cannot hold that the finding of the ultimate fact of notice to the company was justified by the subordinate facts found.
The decision of the case must rest upon the existence of a trust settlement between Mayo and Meyer as above considered.
There is no error.
In this opinion the other judges concurred.