Pfeiffer v. Missouri State Life Insurance Co.

• Decision Date: 09 July 1928
• Docket Number: 126
• Parties: PFEIFFER v. MISSOURI STATE LIFE INSURANCE COMPANY
• Court: Arkansas Supreme Court

8 S.W.2d 505

177 Ark. 1013

PFEIFFER v. MISSOURI STATE LIFE INSURANCE COMPANY

No. 126

Supreme Court of Arkansas

July 9, 1928

Appeal from Lonoke Chancery Court; Frank H. Dodge, Chancellor reversed.

Decree affirmed in part and reversed in part and case remanded.

Morris & Barron, for appellant.

Allen May and Rose, Hemingway, Cantrell & Loughborough, for appellee.

OPINION

MEHAFFY, J.

Appellee and M. E. Singleton, trustee, filed suit in the Lonoke Chancery Court against appellant and others for $ 40,000. S. C. Pfeiffer and Angie M. Pfeiffer had executed promissory notes for the above amount, and, to secure the payment of said notes, the makers of said notes had executed a mortgage. Appellee asked judgment against S. C. Pfeiffer and Angie M. Pfeiffer in the sum of $ 39,056.13 and interest and asked that said judgment be declared a first lien on the property described in the mortgage, and, if said judgment was not paid in a short time, to be fixed by the court, that the property be sold, etc.

S. C Pfeiffer died before the trial, and the suit was revived against Will S. Pfeiffer, administrator. The administrator and Angie M. Pfeiffer sought to set-off against the mortgage debt the amount they alleged to be due the estate from the insurance company on a policy on the life of S. C. Pfeiffer, deceased. Angie M. Pfeiffer filed no separate answer. The trial court held that the policy had lapsed, and that there was therefore nothing due on the policy. Counsel for the insurance company prepared a decree of foreclosure, which contained a provision for personal judgment against Angie M. Pfeiffer, but this decree was not approved by the attorneys for Mrs. Pfeiffer, because it contained a provision for personal judgment against her. The attorney for Mrs. Pfeiffer wrote and mailed to the attorney for the insurance company the following letter:

"June 2, 1926.

"Hon. G. B. Rose, Attorney,

"Care of Rose, Hemingway, Cantrell & Loughborough,

"Little Rock, Arkansas.

"Re: Missouri State Life v. Pfeiffer.

"Dear Judge: I am returning precedent for the decree in the above entitled case unapproved, because it provides for a judgment against the administrator and Mrs. Angie M. Pfeiffer. The complaint, in my opinion, does not justify a judgment against the administrator, because it is not supported by the statutory affidavit.

"I did not think your client insisted on a judgment against Mrs. Pfeiffer. This question was not raised, but I took it as a matter of course, since your client paid her one insurance policy without mentioning her indebtedness to it, that no contention would be made for a judgment against her. I do not think there is any doubt but what she signed the mortgage and notes for the purpose of releasing her dower and homestead interest.

"Mrs. Pfeiffer has some little property, probably $ 3,000 or $ 4,000, which she received on insurance which Mr. Pfeiffer carried on his life. Your client could, if it desired, deprive her of what little her husband left her. However I am sure that neither you nor your client intended to take an advantage of her by providing for a judgment against her in the decree.

"If you will modify the precedent to the extent as suggested herein, I will approve it.

"Very truly yours,

"GEM:HN"

The attorney for Mrs. Pfeiffer received from the attorney for the insurance company, in reply, the following letter:

"Little Rock, Arkansas, June 7, 1926.

"Mr. Geo. E. Morris,

"England, Arkansas.

"Re: Missouri Life v. Pfeiffer.

"Dear sir: The plaintiff has consented to the change in the decree suggested by you. We inclose the original, prepared in St. Louis, with the alteration, and a clean copy of it, so that you may compare the two and find that it is correctly copied. Please O. K. the copy and return it to us, and we will get Judge White to order it to be entered.

"You can fix the time that is to elapse before advertising at any period not exceeding sixty days. We observe that it is 20 days in the decree, and you may want a longer time. Please insert the allowance in the blanks.

"Very truly yours,

"Rose, Hemingway & Loughborough,

"GBR:E G.B.R."

The complaint filed by the insurance company was made an exhibit to the testimony of G. E. Morris, attorney for Mrs. Pfeiffer, which showed that a personal judgment against Mrs. Pfeiffer was asked in the foreclosure suit. After the agreement of the attorneys, a decree was entered foreclosing the lien, and no judgment was entered against Mrs. Pfeiffer. An appeal was taken from that part of the decree disallowing a set- off against the mortgage debt of the amount alleged to be due on insurance policy. The opinion on this question is reported in 174 Ark. 783, 297 S.W. 847. Before the case was decided in this court, the land was sold under the decree of the chancery court, and the insurance company was required to pay the amount due on insurance policy to the administrator. The lands, having been sold, could not be returned.

In October, 1927, appellee and others filed in the chancery court a supplemental complaint, alleging a deficiency, the lands not having been sold for enough to pay the mortgage debt. They asked judgment against Mrs. Pfeiffer for the deficiency, $ 8,826.47, alleging that she signed the notes and mortgage and therefore became liable for the amount. The insurance company asked that her one-third of the insurance collected be applied to the payment of the indebtedness.

It...