Sprouse v. Skinner

Beck, P. J. (After stating the foregoing facts.) The court below, to whom the case was submitted on the pleadings and agreed statement of facts, held and ruled that the assignment and transfer of the policy involved in this case by the assured to his creditor transferred title in the policy to the latter as security for the indebtedness due him; and thereafter, it appearing that at the time of the death of Sprouse he was indebted to Skinner in a sum in excess of $5000, the amount of the face of the policy, the court held that the assignee or transferee of the [122] policy was entitled to the entire proceeds thereof under the transfer and assignment, and rendered a judgment accordingly. To this judgment plaintiff in error excepted. We are of the opinion that the court properly construed the written assignment of the policy of insurance and gave it the effect which under the law and the facts of the case it should have been given. Section 3653 of the Civil Code reads as follows: “All choses in action arising upon contract may be assigned so as to vest the title in the assignee, but he takes it, except negotiable securities, subject to the equities existing between the assignor and debtor at the time of the assignment, and until notice of the assignment is given to the person liable.” Section 2498 provides to whom the mdney due on a life-insurance policy shall be paid, and reads as follows: “ The assured may direct the money to be paid to his personal representative, or to his widow, or to his children, or to his assignee; and upon such direction given, and assented to by the insurer, no other person can defeat the same. But the assignment is good without such assent.” Under the first of these two sections, the policy of insurance may be so assigned as to vest title in the assignee, and under the other the assured is expressly given the right to make the money due on a policy payable to his assignee; and where the policy of insurance, as in the present case, is made payable to the executors, administrators, or assigns of the insured, a written assignment of such policy to the person having an insurable interest in the life of the insured passes the title to the assignee, where it appears as in the present case that it was intended to vest the title in the latter. In the case of Steele v. Gatlin, 115 Ga. 929 (42 S. E. 253, 59 L. R. A. 129), it was said: “1. A policy of life-insurance is a chose in action, even before the death of the insured. 2. To vest the legal title to a policy of life-insurance in an assignee, it is essential that the assignment should-be in writing.” In the body of the decision we- find the following: “ A policy of life-insurance, being a chose in action arising upon a contract, may, under the provisions of our code, be assigned so as to vest the title in the assignee. Civil Code, § 3077 [1910, § 3653]. But such assignment must be in writing. Turk v. Cook, 63 Ga. 681; Planters’ Bank v. Prater, 64 Ga. 613; Hartford Fire Ins. Co. v. Amos, 98 Ga. 533, 534, and cases cited. The code provisions [123] in reference to fire-insurance are, wherever applicable, equally the law of life-insurance. Civil Code, § 2117 [1910, § 2499]. In Saint Paul Ins. Co. v. Grocery Co., 113 Ga. 786, it was held that an assignment of a policy of fire-insurance, must be in writing. In the opinion Mr. Justice Fish says: The Civil. Code, § 2089 [1910, § 2470], requires that a contract of fixe insurance must be in writing. As an assignment of an insurance policy with the assent of the company is a new contract of insurance between it and the assignee, it must, under the provisions of this section of the code, be in writing.’ In the case of the Hartford Fire Ins. Co. v. Amos, supra, and in the case of National Fire Insurance Co. v. Grace, 106 Ga. 264, it was held that in order to transfer the legal title to a policy of fire-insurance the assignment must be in writing. As the assignment of a policy of fire-insurance, in order to be valid, must be in writing, so, under the provisions of our code making the principles relating to fire-insurance, wherever applicable, apply equally to the law of life-insurance, an assignment of a policy of life-insurance must be in writing in order to vest the title in the person claiming to be the assignee.” See, in this connection, the case of Grenville v. Crawford, 13 Ga. 355. In the case of Atlanta Savings Bk. v. Downing, 122 Ga. 692 (51 S. E. 38), the right of an assignee of the life policy was involved. One Downing was an assignee. In the case it is said: ''It is clear that Downing had legal title to the policies by virtue of his assignment. Liverpool Ins. Co. v. Ellington, 94 Ga. 785. Downing informed the insurance company what was the extent of his inter están the policies. He had a right to control the amount due on the policies, and to be first reimbursed therefrom. He consequently had a right to direct the company to retain the amount ’due him, or pay over that sum to him, before the balance of the amount due on the policies was paid to Beach. . . It was the plain duty of the bank, before making the loan to Beach, to make inquiry of Downing to see if he had been paid. Knowing that Downing had legal title to the policies under his assignment, it knew that Beach could assign to it only such interest in the policies as he had after Downing was paid.” Other cases supporting the rule Mid down might be cited, but we do not think it necessary; for we look to the plain terms of the [124] statute which we have quoted above as to the assignment of dioses in action. We do not think that the fact that the company gave a form of assignment, where it was intended that the policy under the assignment should be merely as collateral security, could alter the effect of the language. Nor do we think that the words, “ so far as his interest shall appear,” require a different construction of the assignment; for, though title to the policy passed, the creditor’s, transferee’s, only interest under the policy was to the extent of his debt; for if the amount of the policy in this case had been greater than the debt which it was transferred to secure, the excess would have been paid over as provided in the policy. In the case of Morris v. Ga. Loan &c. Co., 109 Ga. 12 (34 S. E. 378, 46 L. R. A. 506), it was said: “A creditor of a person having his life insured, who takes an assignment of the policy to secure his debt, is only entitled to retain, after collection of the policy, such an amount as is sufficient to pay the debt together with all advances the creditor has made to keep the policy in force. If a balance remains, the payees named in the policy are entitled to receive it. Accordingly, where the amount of the debt is in issue, it must be ascertained, like any other question of fact, by the verdict of the jury.” See also 2 May on Ins., § 459; Exchange Bank of Macon v. Loh, 104 Ga. 446 (31 S. E. 459, 44 L. R. A. 372), where other cases are cited laying down the doctrine announced. We are of the opinion that the assignment as here written, which contains the words, “ so far as his interest shall appear,” has the same effect as a written transfer or assignment not containing these words. The law itself would have written this stipulation in the assignment. The written assignment of the policy involved in this case contains the words, “assign and transfer . . my right, title, and interest in,” etc.; and those words, in connection with the provision contained in section 3653 of the Code, that all choses in action arising upon contract may be assigned so as to pass the title to the assignee, are controlling in this case, and the judge below properly so held. The ruling made above is controlling in both of the cases stated above, and under it the .judgment is Affirmed. All the Justices concur.