140 Ga. 148 | Ga. | 1913
This ease is a prong of Empire Life Insurance Company v. Mason, administratrix, ante, 141 (78 S. E. 935). The administratrix of Mason sued the insurance compauy to recover an amount alleged to be due on a policy of insurance issued by the company on the life of her intestate, and joined in the suit, as parties' defendant, one J ones, the .agent of the company, who was alleged to have fraudulently procured an assignment of the policy from her, and Z. Whitehurst, the assignee of Jones. The jury found in favor of the plaintiff, and the insurance company and Whitehurst made separate motions for new trial; which being overruled, they sued out writs of error. We are now considering that of Whitehurst.
1. The evidence authorized a finding that Jones practiced a fraud on the administratrix of Mason in procuring an assignment
Strong reliance is placed by the plaintiff in error on the case of Nutting v. Thomason, 46 Ga. 34, as deciding that no order of the ordinary is required for the sale by an administrator of stock of an incorporated railway company, and that a sale without such order is only voidable, and that a bona fide purchaser from the administrator’s vendee, without notice that the sale was made at private sale and without order, gets a good title. Let us concede that, at the time of the transaction inquired of in that case, the law did not require an administrator to obtain leave to sell stock before making a sale of it; certainly under the code, as construed in many decisions of this court made since then, an order of the court of ordinary granting leave to sell the personal and real property of his intestate by an administrator is essential to the validity of the sale. Moreover, in that ease there had been successive transfers of the stock on the books of the company, new certificates issued, and the last purchaser was not put on notice that the stock he was buying was that which was sold by the administrator. In the instant case, ’ Whitehurst had notice from the transfer of the insurance policy by Mason’s administratrix to Jones, accompanying the policy, that the administratrix of Mason was without authority to transfer the policy to Jones. So that whether we hold the original transfer to be absolutely void or only voidable, Jones’s as
2. The plaintiff prayed fot judgment against Whitehurst for the installments collected by him; and á verdict was returned against him, Jones, and the insurance company for such amounts. The petition sought to recover the amount of the policy which had been assigned by the administratrix to Jones and by him to Whitehurst, less the amount received from Jones. Inasmuch as Whitehurst was the assignee of Jones, to whom the policy was assigned by the plaintiff, it was necessary that these assignments be vacated before the plaintiff established her right to sue. He was properly made a party, but neither the pleadings nor evidence authorized a recovery by the plaintiff against him for the amount of the installments paid by the company to him.
3. The insurance company pleaded that if the plaintiff recovered a verdict against it, it should have judgment over against Whitehurst for the amount of the installments which it had paid to him. The jury found in favor of the insurance company on this contention. The plaintiff in error insists that these payments were voluntary, with knowledge of all the facts, and, so far as he is concerned, there was no misplaced confidence, and no artifice, deception, or fraudulent practice, and such payments can not be recovered back. It appeared that after Jones procured the transfer of the policy from the administratrix, he proposed to buy from Whitehurst certain real estate. A trade was effected, Whitehurst taking Jones’s botes in amounts and at such maturities as to be paid off by the quarterly installments under the policy, and took a transfer of the policy as collateral security. About three months after this transaction the plaintiff discovered that Jones had perpetrated a fraud on her, and promptly employed counsel, who notified the insurance company of the fraud of its agent, Jones, in procuring an assignment of the policy to himself. Notwithstanding this notice, the insurance company continued to pay Whitehurst the installments as they fell due, which were applied to the discharge of Jones’s notes. Jones has since sold the real estate. Whitehurst has a solvent indorser on the unpaid notes of Jones.
In the instant case Whitehurst sold property to Jones and took the policy as security. The installments collected on the policy by Whitehurst were applied to the payment of Jones’s note. Whitehurst did not participate in the fraud which Jones practiced on the administratrix of the- insured, in order to procure her to transfer the policy to Jones. He failed to get a title to the policy by virtue of the transfer to him, because the-law does not authorize 'an administrator to sell choses in action without first obtaining leave to sell from the ordinary, and then only at public putery. When reduced to its ultimate facts the ease stands thus: Jones fraudulently procured a transfer of the policy of insurance to himself; which transfer was attempted to be made without an order of the ordinary and at private sale. Without notice of the actual fraud, but with notice that the transfer was attempted to be accomplished by a sale without order of court and privately made, Whitehurst in the course of business sold property to Jones and received part payment in the installments paid by the company, which paid the installments with knowledge of all the facts. Under such circumstances Whitehurst paid value received -to Jones for the money received from the insurance company as payment on the policy, and he could retain the payments in good conscience. In effect the
The verdict rendered was special in form. It allowed a recovery by the administratrix against the insurance company, Jones, and Whitehurst, for the installments which had been paid, less the amount received from Jones, a recovery by her against the insurance company for the unpaid installments, and a recovery by the insurance company against Whitehurst for the installments paid to him by the insurance company. As will be seen in. the opinion in the case of Empire Life Insurance Co. v. Mason, ante, the verdict against the insurance company in favor of the administratrix should stand. But so much of the verdict as gives a recovery in favor of the administratrix against Whitehurst, and in favor of the insurance company against Whitehurst, is erroneous. A new trial is not necessary, and direction is given to eliminate the recoveries against Whitehurst.
4. Some of the instructions complained of contained abstract principles of law not strictly appropriate to the case; but these instructions were not of such a character as to be prejudicial to the plaintiffs in error. Other points made in the record are ruled in the companion ease of Empire Life Insurance Co. v. Mason, and reference is made to that case.
Judgment reversed, with direction.