Boisseau v. Bass' Adm'r

• Decision Date: 30 January 1902
• Citation: 40 S.E. 647,100 Va. 207
• Parties: BOISSEAU v. BASS' ADM'R.
• Court: Virginia Supreme Court

40 S.E. 647

100 Va. 207

BOISSEAU

v.BASS' ADM'R.

Supreme Court of Appeals of Virginia.

Jan. 30, 1902.

EXECUTION—LIEN—CHOSES IN ACTION—DEBTS NOT DUE—CONTINGENT DEBTS-LIFE INSURANCE POLICY. 1. Under Code, § 3601, making the writ of fieri facias a lien, from the time it is delivered to an officer to be executed, on all the personal estate of or to which the judgment debtor is, ormay afterwards and before the return day of the writ become, possessed or entitled, and which is not capable of being levied on under section 3577, prescribing what property is subject to levy, and section 3602, providing that such lien shall continue so long as the judgment can be enforced, a debt having present existence, although payable at a future day, is subject to the lien; but a debt which may become due to the judgment debtor, but is dependent on some contingency which may or may not happen, and over which the court has no control, is not.

2. The liability of a life insurance company under a policy payable to the estate of the inspired, the distribution period of which has not arrived, and which is subject to forfeiture for nonpayment of future premiums by the insured, is wholly contingent, and not subject, under Code, § 3601, to the lien of a fieri facias issued against the insured.

3. A provision in a life insurance policy that after payment of a certain number of annual premiums the company would, upon surrender of the policy before default in payment of any premium, issue to the insured a policy for paid-up life insurance for a certain proportionate amount, did not, under Code, § 3601, make the insurance company's liability subject to the lien of a fieri facias issued against the insured, who, before the institution of the suit to enforce such lien, died without the necessary steps to change the policy to a paid-up one having been taken.

Appeal from corporation court of Danville.

Action by one Boisseau against the administrator of R. T. Bass. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

James H. Guthrie, B. Green, and Wm. Leigh, for appellant.

Peatross & Harris and E. E. Bouldin, for appellee.

HARRISON, J. The bill in this case alleges that Jennie M. Robinson on the 6th day of March, 1899, recovered a judgment in the corporation court of the city of Danville against one R. T. Bass for the sum of $1,500, with interest and costs; that on the 22d day of March, 1899, an execution was issued on this judgment and delivered to the appellant, as sergeant of said city, to be executed; that said execution was returnable to the first day of the May term of the court from which it issued, and was duly returned by the sergeant, indorsed, "No effects." It is further alleged that at the time the execution was delivered to the appellant the judgment debtor was the owner of a policy taken out on his life, payable to himself, in the Mutual Life Insurance Company of New York, and dated the 15th day of October, 1887, for the sum of $3,000; that the insured departed this life on the 2d day of May, 1900; and that Thomas J. Penn, the appellee, had qualified as his administrator. The bill charges that the execution, from the time it was delivered to the appellant, was a subsisting and continuing lien on all the personal estate of the debtor, including the life insurance policy mentioned, and that by virtue of such lien, appellant is entitled to recover the amount thereof from the Mutual Life Insurance Company of New York; that his right to collect such insurance policy, to the extent of the execution in favor of Jennie M. Robinson, is paramount and superior to the right of the administrator of R. T. Bass to collect the same. The bill prays that the several parties in interest be enjoined from collecting the policy, that a receiver be appointed to collect and hold the same subject to the order of the court, and for general relief. An injunction was granted, an answer filed by the appellee, and subsequently a decree entered dissolving the injunction. From that decree this appeal has been taken.

It is suggested in the bill, and is established by the record, that R. T. Bass, in his lifetime, on the 16th day of March, 1899, assigned and transferred the policy in question to C. L. Holland to secure the payment of $650 obtained by the assured from him. It is not disputed that C. L. Holland has a prior claim upon the policy to the extent of his debt.

The question presented by the record is whether or not under section 3601 of the Code, Jennie M. Robinson, the execution creditor, had, by virtue of her execution in the hands of the appellant a lien upon the policy here involved. In other words, was the policy such personal estate as a fi. fa. lien would fasten upon, in contemplation of the section mentioned?

That section provides that every writ of fieri facias shall, in addition to the lien it has, under section 3577 of the Code, on what is capable of being levied on under that section, be a lien, from the time it is delivered to a sheriff or other officer to be executed, on all the personal estate of or to which the judgment debtor is, or may afterwards and before the return day of the said writ become, possessed or entitled, and which is not capable of being levied on under the said section, except as to exempted property, and except, also, as against certain persons. Code, § 3601. And this lien continues so long as the judgment can be enforced. Section 3602.

Conceding to this statute the most comprehensive scope, and that every species of personal estate or interest therein is contemplated, the question remains whether or not the policy under consideration is such an estate or interest as can be reached or converted into a benefit to the execution creditor.

The policy is known as a "twenty-year distribution policy." A premium of $29.22 had to be paid quarterly, on the 15th day of January, April, July, and October in every year, during the continuance of the contract until premiums for 20 full years had been paid to the company. Until the 20 years had expired, the interest or estate of the assured in the policy was wholly contingent depending upon his completion of the contract by the payment of the premiums therein provided for. The payment of these premiums was a condition precedent to the right of the assured to any claim against the company, andsuch payment was entirely voluntary. No power could compel the assured to pay them. if the payments ceased, the assured forfeited all those previously made, and the company was discharged from all liability. This policy or contract of insurance did not constitute a present fixed liability upon the company to pay the assured anything; nor did it create any present indebtedness that the assured could demand within the 20 years. The assured died before the expiration of the 20 years, and before the payment of all the premiums. Until his death, which occurred after the return day of the execution against him, the policy was liable to be forfeited by the nonpayment of premiums to accrue thereon. It was therefore altogether contingent whether an obligation to pay any sum to the assured would ever rest upon the company by reason of such policy.

When a debt has a present existence, although payable at some future day, it is subject to the lien of a fi. fa., and may be reached by garnishment or other appropriate proceeding; but the rule is otherwise where the debt rests upon a contingency that may or may not happen, and over which the court has no...