Widaman v. Hubbard

• Decision Date: 27 July 1898
• Docket Number: 772.
• Citation: 88 F. 806
• Court: U.S. District Court — Southern District of California
• Parties: WIDAMAN v. HUBBARD et al.

88 F. 806

WIDAMAN v. HUBBARD et al.

No. 772.

United States Circuit Court, S.D. California.

July 27, 1898

Cheney & Taylor and Anderson & Anderson, for complainant.

Page McCutchen & Eells, E. R. Annable, and Brousseau & Montgomery for defendants.

WELLBORN District Judge.

Complainant sues to enjoin further proceedings in an action entitled 'Anthony G. Hubbard v. New York Life Insurance Company,' pending on the law side of this court, and to have determined certain equitable claims to a fund of $15,000, which said company has paid into court in said action in satisfaction of the liability therein sued on. The material allegations of the bill are these: Complainant, in November, 1896, was, by the superior court of the county of Los Angeles, state of California, appointed assignee in insolvency of one George W. Meade, whose petition in insolvency was filed in the month of October of the same year. The indebtedness of Meade's estate aggregates $30,000, and the only property belonging to said estate is the fund above mentioned. The New York Life Insurance Company is a corporation created under the laws of the state of New York, and on April 22, 1884, for an annual premium of $989.80, issued a tontine policy, numbered 186,405, for $20,000, on the life of said Meade, payable to Anna Meade April 17, 1899, or upon the death of the said George W Meade, should he die before said date. On the 14th day of August, 1894, in consideration of the payment by said Hubbard to said company, at the request of said George W. and Anna Meade, of the quarterly premium then due on said policy of $262.40, said policy was assigned to said Hubbard, and thereafter, on October 29, 1894, said parties entered into the following agreement:

'This article of agreement, made and entered into this 29th day of October, A.D. 1894, between George W. Meade, and his wife, Anna Meade, both of Redlands, San Bernardino county, California, parties of the first part, and Anthony G. Hubbard, of the same place, party of the second part, witnesseth: That, whereas, on the 22d day of April, in the year 1884, a policy of insurance on the life of George W. Meade, one of the parties of the first part, was issued and delivered to the said George W. Meade by the New York Life Insurance Co., of the state of New York, which policy was and is numbered 186,405; and whereas, on the 14th day of August, 1894, the said parties of the first part did assign unto the said party of the second part the said policy of insurance numbered 186,405, which assignment was made to the said party of the second part, and by the said party of the second part accepted as security for certain advances of money then made by the said party of the second part for the benefit of the said parties of the first part, and was also made and accepted, as aforesaid, to secure the said party of the second part for any further advances of money which he, the said party of the second part, may make to the said parties of the first part as the said parties of the first part and the said party of the second part may or should agree upon in the future; and whereas, the said party of the second part is now owner and holder of the mortgage upon certain real property located in the city of Redlands, county of San Bernardino, state of California, now owned by one or both of said parties of the first part, which said real property is described as follows, to wit: ' All of lots 1, 2, 3, 4, 5, and 6 of block 23, as laid down in a map entitled 'Map No. 6' of a part of Redlands Heights, as recorded in the office of the recorder of said county of San Bernardino, state of California, in Book 7 of Maps, at page 40,' and also all that part of Crescent avenue heretofore vacated and not occupied as a public street, lying northwest of and adjoining lot 1, aforementioned, together with 23 shares of the capital stock of the Redlands Heights Water Company; and whereas, the said mortgage so held against the said real property by the said party of the second part was given to secure the payment of a certain promissory note for $6,000, which said promissory note, with accrued and accumulating interest, now remains due and wholly unpaid; and whereas, said Anthony G. Hubbard, said party of the second part, is now the owner and holder of the said policy of insurance on the life of the said George W. Meade: Now, therefore, this article of agreement witnesseth that the said Anthony G. Hubbard shall be and remain the owner of the said policy of insurance hereinbefore referred to, and shall hold the same for the purpose of securing him, the said party of the second part, for any advances of money which he, the said party of the second part, may make to the said party of the first part, or either of them, and it is agreed that the said Anthony G. Hubbard may, at his option, hold the said policy of insurance as collateral security for the said promissory note hereinbefore referred to, and as additional security for the payment of the same, in addition to the mortgage which he now holds against the said real property hereinbefore referred to and described. But it is distinctly understood and agreed that the holding by the said party of the second part of the policy of insurance as further and additional security in connection with the said mortgage shall in no manner be construed as extending the time of payment of the promissory note, to secure the payment of which the said mortgage was given, and is now held by the said party of the second part, the object being to allow the said party of the second part the privilege or option of considering and holding the said policy of insurance as further security for the payment of the said promissory note in the said mortgage described and hereinbefore referred to, according to the terms of the said promissory note, as the same was originally drawn and as the same now exists. In witness whereof, the said parties have hereunto subscribed their names this 29th day of October, 1894.

'(Signed) George W. Meade.

'(Signed) Anna Meade.'

On the day after said agreement was executed, to wit, October 30, 1894, said Hubbard advanced and paid the quarterly premium on said policy for said month of October, and thereafter, on January 17, 1895, advanced and paid the quarterly premium on said policy for said month of January. The promissory note mentioned in the agreement has been discharged. On the 13th day of March, 1895, said insurance company issued another policy of insurance,-- No. 665,889,-- for $15,000, on the life of said George W. Meade, payable to himself; the annual premium on said last-named policy being $562.50. On the 21st day of March, 1895, said Hubbard and Meade entered into the following agreement:

'This agreement, made and entered into this 21st day of March, A.D. 1895, by and between A. G. Hubbard, of the city of Redlands, San Bernardino county, party of the first part, and Geo. W. Meade, of the same place, the party of the second part, witnesseth: That whereas, the party of the second part now holds a policy of insurance on his life in the New York Life Insurance Company, of the state of New York, which policy is numbered 186,405; and whereas, the said party of the second part has had issued to him another policy of insurance on his life in the same company above mentioned for the sum of fifteen thousand dollars ($15,000.00), which said second policy of insurance is numbered 665,889; and whereas, the said party of the second part is unable to pay and keep up the payment of premiums due and to become due on each of said policies according to the terms of the same and each of the same; and whereas, further, said party of the second part desires the said party of the first part to advance to him, the said party of the second part, the sum of three thousand six hundred ninety dollars ($3,690.00); and whereas, it is understood that if the said party of the first part shall pay and keep up the premiums due and to become due upon each of said policies of insurance during the lifetime of the party of the second part, subject to the limitations hereinafter recited, and shall also pay unto said party of the second part the said sum of $3,690.00, that the said party of the second part will transfer and assign unto the said party of the first part the said policy of insurance numbered 665,889, above referred to, as the property absolutely of the said party of the first part, so as to confer upon the said party of the first part, his heirs or assigns, the right absolute to receive and collect from the said New York Life Insurance Company, under the said policy numbered 665,889, upon the death of the party of the second part, the entire sum of money made by said policy last mentioned payable unto the said Geo. W. Meade, his executors, administrators, or assigns, and being, as mentioned in said policy, the sum of $15,000.00: Now, therefore, the said party of the first part does hereby agree to pay and keep up the payments of all premiums due and to become due upon both of the policies hereinbefore mentioned during the lifetime of the party of the 2nd part. And it is also agreed that first party is to advance and pay to the said party of the second part the sum of $3,690.00, the receipt of which is hereby acknowledged by the said party of the second part, and in consideration of the agreements hereinbefore undertaken to be performed by the said party of the first part, and also the payment unto him, the said party of the second part, the said sum of $3,690.00, the said party of the second part does hereby assign, transfer, and set over unto the said party of the first part in absolute ownership the said policy of insurance numbered 665,889, and does hereby authorize and empower the said party of the first part,

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