Culver v. Guyer

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, C.J.
• Citation: Culver v. Guyer, 129 Ala. 602, 29 So. 779 (Ala. 1901)
• Decision Date: 06 February 1901
• Parties: CULVER v. GUYER.

29 So. 779

129 Ala. 602

CULVER v. GUYER.

Supreme Court of Alabama

February 6, 1901

Appeal from chancery court, Morgan county; William H. Simpson Chancellor.

Bill by Paschal A. Guyer against D. M. Winton. Judgment for complainant. Defendant appeals. On bankruptcy of appellant case revived in name of W. A. Culver, trustee in bankruptcy. Affirmed.

The complainant had taken out a policy of life insurance in the New York Life Insurance Company. Not having the money to pay one of the premiums, he borrowed the sum from the defendant Winton, executing his note therefor. On March 19, 1897, upon another premium becoming due, he again borrowed the money to pay the same from Winton, executing at the time two notes,-one for $71.50, due October 1, 1897, and one for $74.22, due November 15, 1897. As collateral security the complainant assigned to Winton the policy of insurance, the premiums on which had been paid for 10 years. In this assignment he transferred "all dividends, benefits, and advantages to be had or derived" from said insurance policy. On the same day Winton executed and delivered to the complainant a covenant, in which he agreed that upon the payment of said notes he would "transfer, assign, and quitclaim the right and title to the policy on the life of said Paschal A. Guyer, *** assigned to me this day." The notes were not paid at maturity. Subsequently, as alleged in the bill, at the instance of the complainant, the defendant surrendered the said policy of insurance to the insurance company, and obtained thereon the cash surrender value thereof, the said insurance company paying the sum to the defendant of $404.60, as assignee and as agent for complainant. This payment was made in March, 1898. It was then averred in the bill that the complainant requested the defendant to deduct from said money so paid by the insurance company the amount due him upon said notes, and to pay to the complainant the residue, but that the defendant had declined and refused to do so. It was then further averred in the bill as follows: "Defendant is insolvent, a judgment at law would be fruitless, and he will put the money beyond the jurisdiction of the court unless a receiver is appointed without notice. Complainant avers, on information and belief that the defendant has already invested a part of said money hereinbefore mentioned in live stock." The prayer of the bill was that a receiver be appointed to take charge of the money paid to the defendant by the insurance company, less the amount justly due the defendant on said notes, and that the receiver be authorized to take charge of any property to which the money may have been converted by the defendant that, in the event of the conversion of said money, a personal decree be rendered against the defendant, and that if the money had been invested in property or securities, a lien be declared and enforced against such property or security. The bill was subsequently amended by particularity as to the indebtedness, and averred that part of the proceeds of the money paid by the insurance company on said policy was invested by the defendant in a horse, which was then in his possession, and in the purchase of three mules; that said mules had been sold by the defendant, and he had taken notes and mortgages from the purchasers thereof to secure the payment of the purchase money. Upon the filing of the bill, and the giving of a bond therefor by the complainant, the chancellor appointed a receiver without notice, and authorized him, after entering into bond as required, to demand and receive from the defendant the money paid by the insurance company, less the amount justly due the defendant, and also any property into which said money had been invested. The verification of the original bill was as follows: "State of Alabama, Morgan County. Before me. Chas. Weineman, a justice of the peace in and for said state and county, this day personally appeared P. A. Guyer, the complainant in the foregoing bill, who, being by me duly sworn, doth depose and say that the allegations of said bill are true. Sworn to and subscribed before me this, the 22d day of March, 1898. Chas. Weineman, Justice of the Peace." The defendant filed a sworn answer, in which he denied that the policy of insurance was transferred to him as collateral security, and averred that the complainant executed an absolute and unconditional assignment, and that it was understood and agreed that, if the complainant did not repay the money borrowed when the notes...