Cawthon v. Perry

HENRY, Associate Justice. In the year 1873 the Equitable Life Assurance Society of the United States issued to Augustine H. Perry a policy of insurance upon his life for the sum of $10,000. In the year 1887, Perry having kept the policy alive up to.that time, and being then indebted to appellant in the sum of $900, he sold and delivered the policy by a written bill of sale, reading as follows: “For $1 to me in hand paid and for a valuable consideration, the receipt of which is hereby acknowledged, I hereby assign, transfer, and turn over all my right, title, and interest in policy Mo. 84,000, on the life of A. H. Perry, issued by the Equitable Life Assurance Society of the United States, and all money which may be payable under the same, to James E. Cawthon, of Lampasas, Texas; and for the consideration above expressed I also, for myself, my executors, and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, his executors, administrators, and assigns, and their title to the said policy will forever warrant and defend. “In witness whereof I have hereunto set my hand and seal, this 8th day of June, 1887. [Signed] “A. H. Perry.” Cawthon paid all premiums accruing between the date of the transfer and the death of Perry, amounting to the sum of $369.60. Perry died in Movember, 1888, and his administrators instituted this suit against both the insurance company and Cawthon to recover the amount of the policy. The insurance company answered, admitting its indebtedness to the [385] owner of the policy, and by agreement of the other parties deposited the amount due upon it—$9894.40—in bank, “to await final judgment in the cause.” Defendant Cawthon answered, asserting his ownership of the policy by virtue of its transfer to him by Perry, and praying for judgment against the insurance company for the amount of the policy. The cause was tried by the court without a jury. The court filed its conclusions of law in the following language: “A creditor, by the transfer to him of a policy on the life of his debtor, can acquire no greater interest in the policy than such sum as will pay Ms debt and interest and premiums paid by him and interest. The instrument of transfer to a creditor, no matter what form it assumes, must be construed either as a mortgage to secure his debt and interest and premiums paid by him and interest, or construed as a transfer of such part of the insurance money as will pay him Ms debt and interest and the premiums paid by him and interest. A construction of the instrument of transfer which would give the creditor any more would be against public policy, in that it would make him interested in the speedy termination of the life of the assured, and at the same time would be a mere speculation on the chances of life.” Judgment was rendered in accordance with these conclusions, to reverse which the defendant Cawthon sued out a writ of error. The assignments of error call in question the correctness of the court’s conclusions of law, and of its ruling in excluding a letter offered in evidence by the defendant Cawthon. We think the letter was properly excluded, because it was immaterial. In their application to this case we approve the court’s conclusions of law. Price v. Knights of Honor, 68 Texas, 361; Schonfield v. Turner, 75 Texas, 324; Life Ins. Co. v. Hazlewood, 75 Texas, 338. The judgment is affirmed. Affirmed* Delivered March 4, 1890.