Smith v. Retail Merchants' Fire Insurance Co.

McCO'Y, J. [1, 2] This is the second time this case has been before this court. The former opinion will be found in 29 S. D. 332, 137 N. W. 47, 42 L. R. A. (N. S.) 173. That decision became the law of this case. There is nothing now before the court,, so far as' shown by the record, that was not before the court then. In the former decision it was said: “It is not every transfer or incumbrance by a person within four months of the time when such person 'becomes an adjudicated bankrupt that is void. There are no .facts alleged in either the complaint of plaintiff or intervener that would render the said assignment to Walker void under the bankruptcy laws.” The same situation still exists. This is the only proposition left open for future inquiry by the former decision. There is. nothing in the stipulated facts on this appeal tending to show that defendant, at the time it consented to the assignment of the policy to Walker, knew or had any knowledge that Walker was acting in any other capacity than for himself. The policy having been assigned to Walker, that created' a new contract of insurance 'between Walker and the insurance company defendant. This policy of insurance could not pass to the trustee as a part of the bankrupt’s estate, the legal interest therein, if any, being in Walker, in the absence of a showing that the assignment of the [397] policy to Walker- was void' under the bankruptcy law. The judgment appealed from is affirmed.