The Union Central Life Insurance Company v. Jones
| Decision Date | 26 May 1897 |
| Docket Number | 2,103 |
| Citation | 47 N.E. 342,17 Ind.App. 592 |
| Parties | THE UNION CENTRAL LIFE INSURANCE COMPANY v. JONES |
| Court | Indiana Appellate Court |
From the Delaware Circuit Court.
Affirmed.
Ramsey Maxwell & Ramsey, E. E. Botkin and E. E. Sluss, for appellant.
Rollin Warner and A. W. Brady, for appellee.
The appellee, Julia R. Jones, sued the appellant upon a policy of insurance issued by the appellant upon the life of Melvin L Jones. A demurrer to the complaint for want of sufficient facts was overruled, and a demurrer to the appellant's answer was sustained. These rulings are presented for our consideration.
The complaint showed the issuing of the policy on the 17th of March, 1890, to said Melvin L. Jones, who then and thereafter, until his death, on the 2d of December, 1894, was the appellee's husband. By the terms of the policy set forth in the complaint, in consideration of the statements of the application for the policy and of the present payment of the sum of $ 333.10 at the home office of the company, as thereinafter described, and of the annual payment of $ 66.62, commencing on the 30th of December, 1894, and continuing thereafter during the term of ten years, and of the payment when due of any and all notes given for premiums or parts of same, the appellant insured the life of said Melvin L. Jones in the sum $ 1,200.00 for fifteen years, ending December 30, 1904, the appellant agreeing to pay that sum to him at that date, or in the event of his death before that date, to the appellee.
The premiums for the first five years were in the policy acknowledged to have been paid by $ 66.62 cash, and four notes for $ 66.62 each, payable respectively on the 30th of December, 1890, 1891, 1892, and 1893.
It was alleged in the complaint that said Melvin L. Jones performed all the stipulations and conditions on his part contained in said policy, and violated none of the agreements or conditions thereof, except as hereinafter shown; that at the time of making the contract he paid the appellant $ 333.10, as follows: He paid the cash payment referred to in the policy in the sum of $ 66.62, and executed to the appellant his four several promissory notes, each for $ 66.62, payable respectively December 30, 1890, 1891, 1892, and 1893, providing for eight per cent. interest after maturity and attorney's fees. He paid in full said notes falling due December 30, 1890, and December 30, 1891, respectively, but failed and neglected to pay the notes falling due December 30, 1892, and December 30, 1893, respectively.
It was alleged that at the time of making the contract he borrowed from the appellant $ 1,200.00, and that he executed to the appellant, to evidence this loan, his promissory note for that sum, payable five years thereafter, and for the interest thereon six coupon notes, one for $ 66.04, four for $ 84.00 each, and one for $ 17.96, payable, respectively, on the 1st of January, 1891, 1892, 1893, 1894, 1895, and March 17, 1895, all of said notes providing for eight per cent. interest after maturity and attorney's fees at the rate of five per cent.; that to secure said note of $ 1,200.00, and said six coupon interest notes, and said four premium notes of $ 66.62 each, said Melvin L. Jones and the appellee, on said 17th of March, 1890, executed to the appellant a mortgage on certain real estate described, in Delaware county, Indiana; that the mortgage provided that upon a failure to pay any of said coupon interest notes when due, the principal note for $ 1,200.00 should also, at the option of the appellant, become due and payable; that all of said notes, including said premium notes, were executed by the appellee as well as by said Melvin L. Jones, and were payable at a bank named in this State, and waived relief from valuation and appraisement laws; that on the 5th of February, 1894, said Melvin L. Jones and the appellee executed to one Jacob Erther a deed for said real estate, and said Jacob Erther, then, as consideration for said real estate and deed, agreed with said Melvin L. Jones, by a contract in writing, among other things, to pay the amount of said indebtedness secured by said mortgage to appellant; that said Melvin L. Jones and the appellee and said Jacob Erther failed and neglected to pay said three notes of $ 84.00 each, payable January 1, 1893, 1894, and 1895, respectively, and said note for $ 17.96, payable March 17, 1895, and said principal note of $ 1,200.00, and said two premium notes for $ 66.62 each, payable respectively December 30, 1892 and 1893; that on the 18th of December, 1894, the appellant as plaintiff, with full knowledge of the death of said Melvin L. Jones, commenced an action against said Jacob Erther as sole defendant in the court below, and in its complaint therein, as its sole cause of action, set out and pleaded all of said unpaid notes, including said two unpaid premium notes, and said mortgage and said written contract whereby said Jacob Erther agreed to pay said indebtedness secured by said mortgage, and asked for a judgment against said Jacob Erther for the amount of all said unpaid notes, including interest and attorney's fees, and for the foreclosure of said mortgage against said real estate; that said Jacob Erther appeared in said court in said action, and on the 8th of January, 1895, filed his answer to said complaint, denying all the allegations thereof and averring that said written contract whereby he assumed said indebtedness was executed wholly without any consideration; that upon the issue thus formed a trial was had on, etc. The complaint shows a finding and judgment in said action in favor of the appellant against said Jacob Erther personally for the recovery from him of $ 1,700.49, without relief from valuation or appraisement laws, and for the foreclosure of said mortgage, and the sale of said real estate to satisfy said judgment, with judgment over against said Erther; that said amount of said judgment included all of said unpaid notes, including the principal of said two unpaid premium notes and all interest and attorney's fees thereon.
The complaint shows in detail the sale of said real estate on the 27th of July, 1895, by the sheriff, under said judgment, to the plaintiff for the full amount of the judgment and interest and costs, and the issuing to the appellant of the sheriff's certificate of such sale, which the appellant still held; and it was alleged that the appellant at the same time received from the sheriff in full satisfaction of said judgment a sum stated, being the full amount due and unpaid on said judgment, including six per cent. interest from its rendition, and the appellant executed to the sheriff its receipt for said sum in full satisfaction of said judgment, and the sheriff made his return, etc. It was alleged that by said purchase said judgment and said two unpaid premium notes were wholly paid and satisfied; that by the taking of said judgment and said purchase of said real estate and the satisfaction of said judgment, the appellant waived the forfeiture of said policy because of said failure to pay said two premium notes.
The complaint contains much other matter which need not be set forth to illustrate the question in dispute on appeal.
In the policy set out in the complaint is the following provision relating to said four premium notes: "Failure to pay any one of said notes at maturity will give the company the right, at its election, to avoid this policy, with all its provisions, and the note or notes past due at the date of the exercise of the election to cancel the policy will be payable, with interest to date of payment, as premium for the period of actual insurance up to the date of cancellation upon the books of the company, and the remaining notes, if any, will thereupon, on surrender of the policy, be surrendered to the maker."
Upon the back of the policy were certain conditions which were referred to in the policy as part thereof. In the first clause of these conditions it was provided, that "all premiums, or notes, or interest upon notes, given the company for premiums, shall be paid on or before the days upon which they become due, at the company's office in the city of Cincinnati, or to the authorized agent of the company, ...
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Union Cent. Life Ins. Co. v. Jones
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