Marsh v. Elba Bank & Trust Co.

Citation205 Ala. 425,88 So. 423
Decision Date02 December 1920
Docket Number4 Div. 845
CourtSupreme Court of Alabama
PartiesMARSH v. ELBA BANK & TRUST CO.

Rehearing Denied April 7, 1921

Appeal from Circuit Court, Coffee County; H.A. Pearce, Judge.

Action by the Elba Bank & Trust Company against the Mutual Life Insurance Company of New York, in which defendant filed an interpleader, bringing in Eva C. Marsh as a party. From a judgment in favor of the bank, the latter appeals. Reversed and rendered.

J.A Carnley, of Elba, and J.J. Mayfield, of Montgomery, for appellant.

W.W Sanders, of Elba, for appellee.

BROWN J.

This is the third appeal in this case. The result of the second appeal, with a brief statement of the nature of the case and issues then before the court, will be found reported in 202 Ala. 401, 80 So. 374 (Elba Bank & Trust Co. v. Marsh). The first appeal involved questions not now pertinent. Marsh v. Mutual Life Ins. Co., 200 Ala. 438, 76 So. 370.

The second appeal was from a judgment of the circuit court rendered on the 5th day of July, 1917. The effect of the reversal of that judgment by this court was to annul it in its entirety, and set aside all the rulings of the court on the pleadings embodied in that judgment. Alabama City. Gadsden & Attalla Ry. Co. v. Bates, 155 Ala. 347, 46 So 776; McGeever et al. v. Terre Haute Brew. Co., 201 Ala. 290, 78 So. 66.

After remandment of the cause, the substituted defendant amended her plea of interpleader, or statement of claim, by adding thereto what is denominated "statement A," and to the interpleader as thus amended, the plaintiff filed replications 1 to 5, inclusive; the first being a general replication, the second a general denial that the plaintiff was guilty of fraud, as charged in the defendant's interpleader, and the third, fourth and fifth setting up a transfer and assignment of the policy to the plaintiff, to wit, on the 27th day of January, 1916, and a subsequent ratification thereof.

The issues as presented on the trial, and here for consideration, are, therefore, in short: The defendant, appellant here, claims that she is entitled to the funds in controversy (1) as the beneficiary named in and owner of the policy of insurance; (2) that the assignment of the policy under which the defendant claims the fund was procured by actual fraud or deceit, through a misrepresentation by the plaintiff of its contents; and (3) that her signature was procured to such transfer by fraud and undue influence. The plaintiff, appellee here, on the other hand, by its replications asserts (1) that the defendant was not the owner of the policy at the time of the bringing of the suit; (2) that there was neither actual nor constructive fraud practiced on the defendant in procuring her signature to said transfer; and (3), that since said transfer, by her acts and deed, she has fully confirmed and ratified her previous act in assigning the policy, and she is now estopped to question the validity of such assignment.

On the issues thus joined the trial court, after hearing the evidence without the intervention of a jury, rendered a judgment for the plaintiff, and from that judgment this appeal is prosecuted.

We are, of course, not unmindful of the well-established rule that, when a cause is tried by the court without a jury, and the evidence is ore tenus, or partly so, the trial court has the advantage over this court of seeing and hearing the witnesses, and its conclusion on facts is like unto the verdict of a jury, and will not be disturbed by this court, unless plainly contrary to the great weight of the evidence. This rule, however, is without force where, as here, the material and controlling facts are established by the undisputed evidence, though, in some of the minor details, the evidence presents some conflict. Bowling v. State, 85 So. 500.

The undisputed evidence in this case shows that Tavner Marsh died on the 17th day of January, 1916, leaving a valuable estate, consisting of a well-improved farm, valued at approximately $12,000, and personal property consisting of mules, cattle, hogs, corn, farming implements, and other property used in his farming operation valued at approximately $3,000, leaving as the only distributees of his estate the appellant, his widow, and three small children. He also left policies of life insurance, naming his wife as beneficiary therein; one for $3,000, and the other for $2,000; the proceeds of the last being the subject of this controversy.

At the time of the death of Tavner Marsh, he was indebted to the plaintiff, who held a mortgage on all of his property, said mortgage expressing an indebtedness of $5,126, and being executed by Marsh and his wife, embracing--

"all of our household and kitchen furniture, all crops of cotton and corn of every description raised or caused to be raised by us, or under our direction, during the years 1914, 1915, 1916, 1917, and 1918; all farming tools and implements; all live stock, personal property, and choses in action not herein otherwise named; all rents or advances to become due to either of us as landlord from any tenant in said county (Coffee) for the years 1914 to 1918, inclusive," etc.

Then followed a specific description of the personal property and his farm consisting of 237 acres of land. Embraced in this mortgage were stipulations authorizing and empowering the seizure and sale of said property before or after maturity, at public or private sale.

The Bank of New Brockton had a like mortgage, covering the same property, to secure an indebtedness of $1,185. Before Marsh's death, he, with his wife, had hypothecated the $2,000 policy of insurance with the Bank of New Brockton to secure a loan; but some time before his death this security had been withdrawn from the bank, for the purpose of depositing with the insurance company, to secure a loan of $197, the proceeds of which were applied to the debt of the Brockton bank; and, at the time of his (Marsh's) death, this policy was in the hands of the insurance company, and the Bank of New Brockton had no claim or right thereto.

On the 26th day of July, 1916, nine days after the death of Marsh, and before the defendant had recovered from the shock of his death, and while she was suffering from the strain of having nursed him through a long siege of typhoid fever (his illness continuing for several weeks), the agents of the plaintiff went to the home of the deceased and listed all of his property, sold and carried away a lot of cattle, under the mortgage, and, on the same day, without the request of the defendant, proceeded to New Brockton and obtained from the Bank of New Brockton a transfer of its claim against the estate of Marsh, and the mortgage securing the same; and with the knowledge that the Bank of New Brockton had released the insurance policy as security, and that policy was then on deposit with the insurance company, induced the agents of the Bank of New Brockton to give to the Bank of Elba a transfer of "all its rights" in and to said policy as a security.

On the same day, Mr. Rainer, an officer of the plaintiff, who listed the property and caused the cattle to be sold, was active in negotiating and arranging with one Braswell, a brother-in-law of the defendant's, to take over all the property belonging to Marsh's estate, pay the debts of the estate and agree to support the widow and children of Marsh for a period of 10 years, at which time it was contemplated that the farm should be returned to her free from incumbrances. He also arranged with a brother of the defendant to carry her to plaintiff bank the following day, so that the necessary papers could be drawn for Braswell to sign; and also to prepare proof of death so that the insurance money could be collected, assuring the defendant, through one of her brothers,...

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