Roller v. Adm&r

• Decision Date: 07 November 1889
• Citation: 86 Va. 512,10 S.E. 241
• Court: Virginia Supreme Court
• Parties: Roller v. Moore's Adm'r.

10 S.E. 241

(86 Va. 512)

Roller

v.Moore's Adm'r.

Supreme Court of Appeals of Virginia.

Nov. 7, 1889.

Life Insurance—Assignment of Policy.

1. In an action by the administrator against the assignee of a life insurance policy, it appeared that the insured gave his note to the insurance agents for the first premium, which note was discounted by the assignee, he taking the policy as collateral security; that, the note not being paid, the assignee drew up an absolute assignment, authorizing him to collect the policy, "provided that in the mean time this assignment and power be not canceled and annulled, " but this was never executed by the insured; that afterwards the assignee wrote the insured a letter, claiming that the original agreement was that, " as long as I paid the premium, the policy was to be mine, and you were to assign it to me;" that, after paying several of the premiums, the assignee procured an assignment absolute on its face; and that on the death of the insured he had collected the policy. Held, that the assignment was merely to secure the amount of the premiums paid.

2. The assignee could retain no 'more of the proceeds than the amount of premiums paid by him, even had the assignment been absolute, because a creditor has no greater insurable interest in the life of the insured than his actual indebtedness.

Strayer & Liggett and G. M. Cochran, Jr., for appellant. Sipe & Harris and W. B. Compton, for appellee.

Lacy, J. This is an appeal from a decree of the circuit court of Rockingham county, rendered on the 1st day of August, 1887. The case is as follows: James H. Moore having died, the appellee Herod Horn an filed a creditors' bill against the appellee D. M. Beane, his administrator, his widow and heirs, to have an account of the debts, and to subject the real and personal assets to the payment of the debts. The administrator Beane answered, and claimed that among the assets of the decedent, Moore, was a policy of insurance for $5,000 in the Equitable Life Assurance Society of the United States, which had been collected by the appellant, John E. Roller, under an alleged assignment, asking that the answer be treated as a cross-bill, and that said Roller be made a party defendant, and required to answer, the oath being waived. And it is concerning this policy of insurance that this controversy is before this court. The administrator of Moore claims that the assignment of Moore, although absolute on its face, was intended to be only conditional, and that the interest of Roller was confined to the four premiums, which he had paid quarterly, of $62.50 each and $1 fee. The policy was taken out by Moore with Messrs. Lupton Bros., general agents of the company at Harrisonburg, the county-seat of Rockingham county; but, not having the money to pay the premium, he gave his note to Lupton Bros, for $63.50, —the premium, $62.50, and $1 fee. This note Lupton Bros, carried to Roller, and sold at 20 per cent, discount, and handed the policy, made out in the name of Moore, to Roller, as a further security for the debt of Moore for $63.50. This policy and note of Moore were carried to Roller because Lupton knew that Roller had business transactions with Moore. This transaction, in its origin, was simply the purchase by Roller of the note of Moore at 20 percent, discount, and the holding of the policy as collateral security. Moore failing to pay the note, Roller began to press him for the money, and then to insist upon an assignment of the policy, drawing up a paper to that effect, and authorizing Roller to collect the policy, with the proviso: " Provided, that in the mean time this assignment and power be not canceled and annulled." Moore held but did not execute this paper, this paper being dated March 31, 1884. On the 10th of June following, Roller wrote to Moore a letter urging the matter, and referring to the paper of March 31, 1884, thus: "I sent you a paper showing the contract under which I paid the first premium for you; that is, that as long as I paid the premiums the policy was to be mine, and you were to assign it to me." The second quarterly premium was due on the 10th of June. Lupton, the agent, not hearing from Moore about it, collected it of Roller, and Moore, not noticing the agent, paid the premium directly to the company in New York, and Lupton received the company's receipt for it. In the mean time Moore, on the 12th of May, hadapplied for a second policy of $5,000 in the same company, and Lupton applied the receipt for the premium paid by Moore on the first policy to the first premium on this second policy, and had it issued, he having received payment of Roller of the second premium on the first policy, as stated. After this, Roller wrote the letter referred to of that date, saying further as to the paper of March 31st: " You have never returned that paper to me. I do not like that way of doing business, and write now to say that it must be attended to at once. You must not fail to attend to this at once." On the 27th of June following, Roller sent an absolute assignment to Moore, without any proviso. This not being replied to by Moore, Roller wrote again on the 4th of August: " You have never signed that assignment to me of that insurance policy. It must be done without delay. You are not treating me right in this matter." On the 10th of September Roller paid the third premium, and on the 12th of August the second policy lapsed, and on the 20th of September following, Roller obtained the assignment of the policy, which is absolute in its terms. Roller paid the fourth premium, and on the 12th of February following, Moore died, and on the 25th of May Roller collected the policy, and claims it as his own.

The circuit court held that the assignment was not a new contract on the 20th of September between the parties, and an absolute assignment, but that it bore the impress of the original transactions, and stood merely as a security for the advances made by Roller; and, following the case of Page v. Burnstine, 102 D. S. 664, required Roller to account to the administrator of Moore for the policy, after deducting the premiums paid by him. And also, as this policy made Moore's estate solvent, Roller was allowed to retain another debt which Moore's estate owed him, all the debts of Moore being amply provided for. From this decree Roller appealed. He insists that under the assignment the policy was his, and that it vested in him the absolute ownership; that he had, as the creditor of Moore, an insurable interest in his life and that the policy was not...