Coleman v. Anderson

• Decision Date: 19 October 1904
• Citation: 82 S.W. 1057
• Parties: COLEMAN et al. v. ANDERSON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

82 S.W. 1057

COLEMAN et al. v. ANDERSON et al.^*

Court of Civil Appeals of Texas.

October 19, 1904.

Appeal from District Court, Leon County; J. M. Smith, Judge.

Suit by W. H. Coleman and another against J. E. Anderson and others for possession of a fraternal benefit certificate. From a judgment awarding possession to plaintiffs, and assessing a personal judgment against them for the amount paid by defendants as premiums and dues thereon, both plaintiffs and defendants appeal. Reversed on defendants' appeal, and judgment rendered for defendants.

S. W. Dean and J. T. Ryan, for plaintiffs. Thos. B. Greenwood and Wm. Watson, for defendants.

NEILL, J.

W. H. and R. B. Coleman sued J. E. Anderson, E. L. Evans, and R. H. Evans, composing the firm of Anderson, Evans & Evans, to recover of them possession of a certain benefit certificate, No. 121,243, issued by the Supreme Lodge of the Knights of Honor for the sum of $2,000, and payable on the death of R. B. Coleman to his coplaintiff, W. H. Coleman. The defendants pleaded that the certificate in question was transferred, assigned, and delivered, together with a benefit certificate for $2,000 issued by the same order upon the life of W. H. Coleman in favor of his wife, E. R. Coleman, by W. H. Coleman, the beneficiary, to H. Levy, under an agreement between the parties to such assignment that Levy should advance and pay for the assured or such beneficiaries to the Knights of Honor all premiums or dues due or to become due such order on said certificates, and that Levy should hold the certificates so delivered and pledged to him as collateral security for the amounts paid or to be paid by him as premiums or dues upon them; that in pursuance of such agreement the certificates were placed in Levy's possession, and that on October 1, 1894, the actual amount, paid in cash by Levy under said agreement to the Knights of Honor as premiums and dues on said certificates was $962.20; that on said date W. H. Coleman gave Levy his five promissory notes, each for $192.44, bearing 10 per cent. interest from date, due one day thereafter, to secure the payment of said amount, and to further secure the payment thereof, as well as for the advancement of premiums and dues to be made by Levy on said certificates, said Coleman executed and delivered to him his promise and obligation that the amounts due and to become due Levy for premiums and dues on the certificates should be paid to Levy out of the proceeds of the first policy to be collected on the death of either himself (W. H. Coleman) or his father, R. B. Coleman; that afterwards, on April 28, 1898, the aggregate amount of Levy's payments on the policies being $1,354.28, W. H. Coleman and his wife, to secure the payment of that sum, together with such amounts as should be thereafter paid by Levy to keep the benefit certificates alive, executed and delivered to Levy an instrument in writing, which was afterwards duly acknowledged, conveying to him an interest in the two policies equal to the sum advanced and to be advanced by him to the date whereon either policy might mature; that thereafter said H. Levy continued to pay all premiums and dues assessed against said certificates, aggregating $90.60, until in January, 1899, when, for a valuable consideration, he assigned and transferred to Anderson, Evans & Ward, a firm composed of J. E. Anderson, E. L. Evans, and W. K. Ward, the entire indebtedness due him by W. H. Coleman for the premiums and dues paid on said certificates, together with the written contracts, heretofore referred to, between the parties concerning the same; that said firm paid all dues, premiums, and assessments, aggregating $287.27, up to April 4, 1901, when Ward sold his interest in the assets of the firm to R. H. Evans, and that since that time defendants, Anderson, Evans & Evans, have paid all premiums, assessments, and dues, amounting to the further sum of $115.10, on said benefit certificates; that all of said payments were made with the knowledge and consent of, and were acquiesced in by, W. H. Coleman, and that they constituted a valid and subsisting indebtedness by Coleman to defendants; that said Coleman has refused and still refuses to pay the same, or any part thereof; and that the certificates are held by them as security for the payment of said indebtedness under the agreement and contract referred to in the answer of defendants, who are ready and willing to surrender the same to plaintiffs upon the payment of the amount for which they are held. To this answer the plaintiffs interposed general and special exceptions, which being overruled, the case was tried before the court without a jury, and judgment rendered in favor of the plaintiffs, W. H. and R. B. Coleman, for certificate No. 121,242, before described in our statement of the case, which judgment requires defendants to deliver the certificate to plaintiffs, without requiring them, as a prerequisite to such delivery, to pay any of the indebtedness for which the certificate was alleged to be pledged. But, however, a personal judgment was rendered against plaintiffs in favor of defendants for $213.35, the amount found by the court to have been advanced and paid by themselves alone for premiums and dues on said certificate. From this judgment the plaintiffs, as well as the defendants, have appealed.

The uncontroverted evidence establishes as facts the matters pleaded by defendants, and, without taking up and considering seriatim the several assignments of error of the parties, we shall undertake to determine their rights, and properly dispose of the case upon such facts. To say, under these facts, as is contended by plaintiffs, that defendants are not entitled to anything—not even a personal judgment for any sum—would, to our minds, be a travesty upon justice. This is too apparent to any mind that has not lost all sense of right and regard for fair dealing to require discussion.

This disposes of plaintiffs' appeal, and brings us to a consideration of the defendants', which involves the question as to what equity and good conscience require plaintiffs to do in order to recover from defendants the possession and custody of the benefit certificate involved in this suit.

A policy of life insurance or a benefit certificate like the one in question, which is, in effect, such a policy of insurance, is, even before the death of the insured, a chose in action. Harley v. Heist, 86 Ind. 196, 45 Am. Rep. 285; Bushnell v. Bushnell, 92 Ind. 503; Ins. Co. v. Flack, 3 Md. 341, 56 Am. Dec. 742; Bank v. McLean, 84 Mich. 625, 48 N. W. 159; Palmer v. Merrill, 6 Cush. 282, 52 Am. Dec. 782. And while, under the decisions of this state, it cannot be gratuitously assigned to one having no insurable interest in the life of the insured (Cheeves v. Anders, 87 Tex. 287, 28 S. W. 274, 47 Am. St. Rep. 107; Hatch v. Hatch [Tex. Civ. App.] 80 S. W. 412; Price v. Knights of Honor, 68 Tex. 361, 4 S. W. 633), it may as a chose in action, by virtue of article 308, Rev. St. 1895, by one having an interest in it, be assigned as collateral security for his debt or obligation; and the one to whom it is assigned, to the extent of the debt, especially if it is for premiums or dues paid by him at the...