Conway v. Caswell

CourtSupreme Court of Georgia
Writing for the CourtSIMMONS
Citation48 S.E. 956,121 Ga. 254
Decision Date12 November 1904
PartiesCONWAY et al. v. CASWELL et al.

48 S.E. 956
121 Ga. 254

CONWAY et al.
v.
CASWELL et al.

Supreme Court of Georgia.

Nov. 12, 1904.


LIMITATIONS — COLLATERAL SECURITY —BARRED DEBT—DOMINANT DECREE—INTERPLEADER—EVIDENCE.

1. Where a policy of insurance was transferred as security for a debt, the fact that the remedy on the latter was barred did not destroy the debt itself, nor did it prevent the holder of the collateral from enforcing her rights thereunder. Civ. Code 1895, § 2735.

2. Nor did the fact that the personal judgment against the debtor had become barred render dormant that part of the decree which declared that the creditor held a valid legal title to the policy to the extent specified.

3. Where parties interplead, each occupies the position of plaintiffs in possessory actions, and must recover on the strength of his own title, rather than on the weakness of the other's title.

4. It affirmatively appears that until the payment of the debt secured thereby the plaintiffs in error have no title to the policy; and as to them, therefore, it is immaterial whether the transfer by the administrator to an heir of his intestate was at private sale, or without consideration.

5. The ancestor of plaintiffs in error consented in writing, and for 12 years acquiesced in the transfer of the policy to the defendant in error, who was the heir at law of the previous holder. She and her predecessors in title paid all the premiums, and the judgment in her favor as against the plaintiffs in error was demanded by the evidence.

(Syllabus by the Court.)

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by L W. Caswell and others against Limola Conway and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

In 1875 G. W. Conway was indebted to Theodore Caswell, with whom he was having business transactions. It being contemplated that the amount of the indebtedness would vary, Conway transferred a policy of insurance on his life in the Ætna Life Insurance Company to Caswell as collateral "to the extent of such interest as he may have when said policy becomes a claim."

[48 S.E. 957]

Caswell and his successors paid all the premiums. In 1887 Caswell died. In 1888, Warren, his administrator, filed a bill in equity against Conway, in which a decree was entered that Conway was indebted to Caswell $971, with interest from September 1, 1881, for which execution might issue at any time; that for the purpose of protecting the estate against loss Warren should be authorized to keep of force the policy held by the estate on the life of Conway; that for premiums already paid or to be paid on the policy and for the amount of $971 the estate holds a valid and legal title to the policy. In 1890, Warren, as administrator, transferred to Mrs. Caswell this debt and the policy as collateral to the extent of such interest "as he may have when said policy becomes a claim." On the same day Conway executed an instrument in which he referred to the decree above set out, and recited that Warren, administrator, "has sold at public outcry, pursuant to law, to Lucie W. Caswell, the above-stated debt and judgment, which amounts to over two thousand dollars, and the policy hereinafter mentioned, being upon the life of Geo. W. Conway, and taken out by said Caswell to secure said debt; and whereas, said administrator desires to transfer said indebtedness and said policy to her, the said Lucie W. Caswell, and desires the consent of the said company and the said George W. Conway thereto: Now, therefore, I, George W. Conway, * * * hereby admit said indebtedness hereinbefore described, which now amounts to over two thousand dollars, due said estate of Theodore D. Caswell, and consent to the sale and transfer of the same by said administrator to said Lucie W. Caswell, and also consent to a transfer to her of the life insurance policy on my life in the Ætna Life Insurance Company, * * * for two thousand dollars, both by said administrator and said insurance company; said Lucie W. Caswell to hold the same and collect and apply the proceeds thereof at my death to the payment of the indebtedness aforesaid." Conway died December 12, 1903. Mrs. Caswell, as the assignee, made out proof of the claim. The two daughters of Conway made out a similar proof, and claimed the proceeds by virtue of the fact that they were his sole heirs at law. In view of the doubt raised by these conflicting claims, the company failed to pay either party. Mrs. Caswell thereupon filed suit on the policy. The daughters of Conway likewise brought suit. Thereupon the JEtna Life Insurance Company filed a petition in Richmond superior court, praying that these suits be enjoined, and that the respective claimants be required to interplead. The judge passed an order enjoining the suits, and on the hearing of the rule nisi an order was passed directing the money to be deposited in the treasury of the court, and requiring the claimants to interplead. This was done, each filing a petition in the nature of a cross-bill asserting title to the proceeds of the policy, Mrs. Caswell claiming by virtue of the assignment above referred to; and the daughters of Conway, averring that there were no debts, and that they were the sole heirs, asserted their...

To continue reading

Request your trial
35 practice notes
  • Trustees Of Jesse Parker Williams Hosp. v. Nisbet, Nos. 13556, 13558.
    • United States
    • Supreme Court of Georgia
    • 15 Marzo 1941
    ...614, 618, 157 S.E. 219; Tumlin v. Guest, 31 Ga.App. 250, 120 S.E. 442; Fletcher v. Young, 10 Ga.App. 183, 73 S.E. 38; Conway v. Caswell, 121 Ga. 254, 259, 48 S.E. 956, 2 Ann.Cas. 269; Gamble v. Burney, 169 Ga. 830, 832, 152 S.E. 73. There was no contention by defendants at the trial that th......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...842;Colton v. Depew, 60 N. J. Eq. 454, 46 Atl. 728, 83 Am. St. Rep. 650;Ellis v. Fairbanks, 38 Fla. 257, 21 South. 107;Conway v. Caswell, 121 Ga. 254, 48 S. E. 956, 2 Ann. Cas. 269;Capehart v. Dettrick, 91 N. C. 344;Casey v. Gibbons, 136 Cal. 368, 68 Pac. 1032;In re Hartranft's Estate, 153 ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...842); Colton v. Depew, 60 N.J.Eq. 454 (46 A. 728, 83 Am. St. Rep. 650); Ellis v. Fairbanks, 38 Fla. 257 (21 So. 107); Conway v. Caswell, 121 Ga. 254 (48 S.E. 956, 2 Ann. Cas. 269); Capehart v. Dettrick, 91 N.C. 344; Casey v. Gibbons, 136 Cal. 368 (68 P. 1032); In re Hartranft's Estate, 153 ......
  • Matter of Franklin, Civ. A. No. 88-1201-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 24 Marzo 1989
    ...112 Va. 384, 71 S.E. 564 (1911) (a surety is not released because a joint judgment is barred as to the principal); Conway v. Caswell, 121 Ga. 254, 48 S.E. 956 (1904); Pollock's Adm'r v. Smith, 107 Ky. 509, 54 S.W. 740 (1900); Bowie v. Poor School Society of Westmoreland County, 75 Va. 300 (......
  • Request a trial to view additional results
35 cases
  • Trustees Of Jesse Parker Williams Hosp. v. Nisbet, Nos. 13556, 13558.
    • United States
    • Supreme Court of Georgia
    • 15 Marzo 1941
    ...614, 618, 157 S.E. 219; Tumlin v. Guest, 31 Ga.App. 250, 120 S.E. 442; Fletcher v. Young, 10 Ga.App. 183, 73 S.E. 38; Conway v. Caswell, 121 Ga. 254, 259, 48 S.E. 956, 2 Ann.Cas. 269; Gamble v. Burney, 169 Ga. 830, 832, 152 S.E. 73. There was no contention by defendants at the trial that th......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...842;Colton v. Depew, 60 N. J. Eq. 454, 46 Atl. 728, 83 Am. St. Rep. 650;Ellis v. Fairbanks, 38 Fla. 257, 21 South. 107;Conway v. Caswell, 121 Ga. 254, 48 S. E. 956, 2 Ann. Cas. 269;Capehart v. Dettrick, 91 N. C. 344;Casey v. Gibbons, 136 Cal. 368, 68 Pac. 1032;In re Hartranft's Estate, 153 ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...842); Colton v. Depew, 60 N.J.Eq. 454 (46 A. 728, 83 Am. St. Rep. 650); Ellis v. Fairbanks, 38 Fla. 257 (21 So. 107); Conway v. Caswell, 121 Ga. 254 (48 S.E. 956, 2 Ann. Cas. 269); Capehart v. Dettrick, 91 N.C. 344; Casey v. Gibbons, 136 Cal. 368 (68 P. 1032); In re Hartranft's Estate, 153 ......
  • Matter of Franklin, Civ. A. No. 88-1201-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 24 Marzo 1989
    ...112 Va. 384, 71 S.E. 564 (1911) (a surety is not released because a joint judgment is barred as to the principal); Conway v. Caswell, 121 Ga. 254, 48 S.E. 956 (1904); Pollock's Adm'r v. Smith, 107 Ky. 509, 54 S.W. 740 (1900); Bowie v. Poor School Society of Westmoreland County, 75 Va. 300 (......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT