Pollock's Adm'r v. Smith

• Decision Date: 10 January 1900
• Parties: POLLOCK'S ADM'R v. SMITH. [1]
• Court: Kentucky Court of Appeals

54 S.W. 740

107 Ky. 509

POLLOCK'S ADM'R v. SMITH. ^[1]

Court of Appeals of Kentucky.

January 10, 1900

Appeal from circuit court, Carlisle county.

"To be officially reported."

Action by D. B. Smith against R. M. Pollock's administrator to enforce a lien on the proceeds of a policy of insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

John W Ray, for appellant.

Henry Burnett, for appellee.

HOBSON J.

Robert M. Pollock had two policies of insurance on his life, each for $5,000. He was indebted to appellee in the sum of $7,000 for which judgment had been recovered some years before. Being unable to pay the debt, on November 2, 1876, he assigned one of these policies to appellee, and on April 9 1877, the other. This assignment was assented to by the company, and was in these words: "For value received, I do hereby assign, transfer, and set over unto Dorrel B Smith, of Todd county, Kentucky, the above-named policy of insurance, and all sum or sums of money, interest, benefit, and advantage whatsoever now due or hereafter to arise, to be had or made by virtue thereof, to have and to hold unto said Dorrel B. Smith, for the purpose of securing the payment of a debt of $7,000, with interest from this date at the rate of ten per cent. per annum until paid, and also to secure the amount of all premiums which may hereafter be paid by said Smith on said policy, with interest at the rate of eight per cent. per annum from the date of payment until repaid; the said assignee hereby agreeing that the premium loan now due, or hereafter to grow due, shall be a valid lien according to the terms of the policy." Smith paid the premiums on the two policies from that time until the death of Pollock, on December 11, 1897. The insurance company paid the amount of the policies into court, and this appeal involves the rights of the parties to the money.

The amount of premiums paid by Smith, with 6 per cent. interest then amounted to $7,962.04. The assignment stipulated, as was then lawful, that these premiums should bear interest at 8 per cent.; and, counted at this rate, the amount due would be $9,155.10. The amount paid into court by the company was $9,689.25. No part of the $7,000 debt had been paid, so far as appears; and so the amount of insurance would fall far short of paying appellee, although he was allowed interest only at 6 per cent. But it was insisted for appellant that limitations barred the $7,000 debt and all payments of premiums, except those made within five years before the action...