Garner v. Townes

Anderson, J., delivered the opinion of the court. Appellee, J. K. Townes filed his bill in the chancery court of Tallahatchie county against appellant, Elizabeth Garner, a minor, and the Equitable Life Assurance Society, by which he sought to cancel an assignment of a five thousand dollar life insurance policy on his life in said insurance company made by his father, James A. Townes, deceased, in his lifetime to appellant, and to have said insurance policy in the hands of appellant surrendered up and delivered to appellee. The appellant answered, denying the material allegations of the appellee’s bill. The Equitable Life Assurance Society answered as called upon by the bill, giving a history of the insurance policy in question as shown by the records of its office, and disclaiming any interest in the subject-matter of the litigation. The cause was heard on bill, answers, and proofs, and a decree rendered granting the prayer of the appellee’s bill, from which appellant prosecutes this appeal. Appellee*made by his-bill, and his evidence tended to establish, the following case: James A. Townes, deceased, the father of appellee and the grandfather of appellant, was a large cotton planter in the Delta section of this state, living on his plantation. During the year 1892 appellee took out a five thousand dollar life insurance policy on his life in the Equitable Life Assurance Society. His father had in his residence a safe, where he as well as appellee kept their valuable papers. When this insurance policy was obtained by appellee in 1892 he placed it in said safe in his father’s home, where it remained until March, 1913, when his father assigned the same to appellant, his granddaughter; such assignment evidencing a gift from the grandfather to the granddaughter. The policy matured during the year 1912. Prior thereto, and on December 16, 1909, appellee borrowed from his father the sum of three thousand five hundred dollars with which to rebuild his home which — 800 — had been destroyed by fire, and to secure the loan assigned, and transferred to his father the policy of insurance involved. This assignment was in writing, and was absolute in form, and was signed and acknowledged by appellee. Appellee testified, however, and his testimony was corroborated by other evidence that, although the assignment of said policy was absolute in form, it was only intended as security for said debt to his father. In January, 1913, appellee had a settlement with his father by which his entire indebtedness to his father including said loan of three thousand five hundred dollars, was paid, and the life insurance policy in question was thereupon surrendered to appellee by his father, and at the request.of appellee was returned to his father’s safe, where it had been kept since its issuance in 1892, with the understanding that his father would at once prepare or have prepared in writing a reassignment of said policy to appellee, and sign and acknowledge the same. In a day or two afterwards appellee’s father undertaking to carry out this' agreement, together with Mr. Farquhrason, who was his nurse and attendant, and-who, when called upon, assisted him about his business affairs, went to Minter City to the office of a justice of the peace, taking this policy along; his purpose being to execute a reassignment of said policy to appellee, but found the office of the justice of the peace closed. Shortly after-wards James A. Townes went to Battle Creek, Mich., for his health, and remained awhile, and came back and soon died. The settlement claimed by appellee to have been had with his father which resulted in the reassignment and delivery of said policy back to appellee was witnessed and testified to by appellee, the said Mr. Farquhrason, appellee’s wife, and appellee’s'daughter, Mrs. Parker. The assignment of the policy by James A. Townes to appellant, his granddaughter, took place on the 26th of March, 1913, less than three months after said settlement and surrender and delivery of said policy to appellee. — 801 — Substantially all of the material facts attending the settlement between appellee and his father, including the surrender and delivery up of said policy to appellee, were testified to, not only by appellee, but by the other witnesses named above. At the time of the assignment of said policy to appellant, and for some time prior thereto, James T. Townes had in his safe in his home, in addition to the policy here involved and other valuable papers belonging to appellee, two policies of insurance of five thousand dollars each on the life of the appellee in the Des Moines Life Insurance Conipany, which had been taken out some years before by appellee, and by him assigned to his father, who had paid the premiums on the same. The bill charges that James A. Townes, in assigning the policy here involved to appellant on the 26th of March, 1913, intended and thought'he was assigning one of these policies in the Des Moines Life "Insurance Company. However, there was no direct evidence to sustain this charge in the bill; there were only inferences from proven facts and circumstances. Three questions involved in this case we think of sufficient seriousness to call for a discussion. They are: (1) "Whether appellee, under section 1917, Code of 1906 (Hemingway’s Code, section 1577), was a competent witness in his own behalf? (2) Whether, under section 4783, Code of 1906 (Hemingway’s Code, section 3127), evidence was admissible to prove that the assignment of said policy of insurance in absolute form was only intended by the parties as collateral security for appellee’s indebtedness to James A. Townes? (3) Whether the cause of action was barred by the statutes of limitation ? We will discuss these questions in the order stated. (1) Section 1917, Code of 1906 (Hemingway’s Code, section 1577), renders incompetent a person to testify as a witness to establish his own claim or defense against the estate of a deceased person which originated in the lifetime of such deceased person. Appellant contends that appellee was incompetent as — 802 — a witness under this statute; that the effect of his evidence was to establish his own claim against the estate of a deceased person, that of his father. In considering this question the following facts which we deem controlling should be kept in mind. The estate of James A. Townes, deceased, is not a party to this suit. Before his death James A. Townes, by assignment to appellant, taking, appellant’s' evidence to be true, divested himself, of all right, title, or interest in the policy. He therefore had divested himself of any interest in this policy either by reassignment and delivery to appellee or by assigntaent and delivery to appellant. He had done one or the other or both. Taking the evidence of the respective parties to be true he had done both. But, as a matter of law, one or the other of those assignments must stand. Both cannot stand. The assignment of the policy to appellant by her' grandfather was a gift; no consideration passed. She was therefore a mere volunteer. There is no conflict in the evidence as to the fact that at his death James A. Townes owned no interest in the policy. Therefore we have a case where the evidence shows, and undoubtedly competent evidence, that this policy of insurance at the time-of the death of James A. Townes constituted no part of his estate. If appellee succeed in this case, he will not be establishing his claim against the estate of his father. The estate of James A. Townes, deceased, is neither directly nor indirectly involved in this cause. To put it differently: If appellee succeed, the estate of his father will not diminish one particle either in this suit or any other suit which may result therefrom. If appellant lost the policy in question, she cannot call upon her grandfather’s estate to make the loss good, because she paid nothing for it; she was a mere volunteer. We are of opinion that the following decisions of this court settle the proposition that a party to a cause so situated is a competent witness- under said statute. Love v. Stone, 56 Miss. 449; Faler v. Jordan, 44 Miss. — 803 — 283; Combs v. Black, 62 Miss. 831; Cole v. Gardner, 67 Miss. 670, 7 So. 500; Fennell v. McGowan, 58 Miss. 261; Gordon v. McEachin, 57 Miss. 834; Jones v. Bank, 71 Miss. 1023, 16 So. 344; Jackson v. Smith, 68 Miss. 53, 8 So. 258; Wood v. Stafford, 50 Miss. 370. The cases relied on by appellant, Griffin v. Lower, 37 Miss. 458; Lamar v. Williams, 39 Miss. 342; Jacks v. Bridewell, 51 Miss. 881; Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051, are not in conflict with the views here expressed. They were all cases in which the estate of a deceased person was involved. 2. Appellant contends that, under section 4783, Code of 1906 (Hemingway’s Code, section 3127), providing that a writing absolute on its face, where the maker parts with the property conveyed, shall not be proved by parol by either party to be a mortgage, unless fraud in its procurement is the issue to be tried, parol evidence was not admissible to show that the assignment of the policy by appellee to his father absolute in form was only intended to be as collateral security. Armstrong v. Owens, 83 Miss. 10, 35 So. 320, determines this question against appellant’s contention. It was held in that case that this statute applied only to tangible property, and did not embrace a life insurance policy. 3. In considering what statute of limitations applies to this cause of action it is necessary to determine whether it is a cause cognizable alone in a ,court of equity. The gravamen of the bill is to cancel the assignment in writing of James A. Townes to appellant, and to require appellant to surrender up to appellee the policy in question. After the settlement between appellee and his father in January, 1913, and the surrender of the policy by the latter to the former, the father had no interest left, except the bare legal title, which later he assigned to appellant, but appellee had the beneficial interest. To state the cause it seems is to answer the question. Certainly a court of law would not have jurisdiction of such — 804 — a cause of action. There -is no statute of limitations dealing specifically with such a cause. Therefore section 3125, Code of 1906 (Hemingway’s Code, section 2489), applies. This statute provides, among other things, that bills for relief not elsewhere specifically provided for shall be filed within ten years after the cause of action accrued. This suit was brought within ten years after appellee’s cause of action accrued. Until March 26, 1913, when appellant claims that her grandfather assigned said policy to her, the possession of said policy by appellee’s father was appellee’s possession. The policy was in the safe of James A. Townes, where appellee had left it for safe-keeping. In fact, the policy was in appellee’s possession until March 26, 1913, although it was in the safe of his father for safe-keeping. The assignment by appellee’s father to appellant was the act (conceding that appellee knew of it at the time) that set the statute of limitations in motion. No cause of action existed before that. The possession or custody of James A. Townes was the custody of the appellee. It wás not adverse to appellee. This suit was brought within ten years from that date. Affirmed. On Suggestion oe Error. Smith, C. J., delivered the opinion of the court. This is a suit in equity, in which the appellee was awarded in the court below the possession of an insurance policy for five thousand dollars, now in the possession of and claimed by the appellant. The decree of the court below was affirmed on a former day of the present term of this court. In the judgment affirming the decree of the court below the appellant and the sureties in his supersedeas bond were taxed with the costs, but with no damages. The appellee now moves the court to correct this judgment, by adding thereto five per cent, of the amount for which the policy was issued as damages. Sec — 805 — tion 4926, Code of 1906 (section 3202, Hemingway’s Code), provides that: “In case the judgment or decree of the conrt helow he affirmed, . . . the supreme court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows: ... If the judgment or decree he for the possession of real or personal property, the damages shall be assessed on the value of the property.” Section 4927, Code of 1906 (section 3203, Hemingway’s Code), provides that, if the value of the property in controversy does not appear in the record, the case shall he remanded to the court helow for the ascertainment thereof in order that the amount of damages may he determined. The policy here in controversy is of course personal property, hut there is no evidence in the record from which its present value can he ascertained, so that the amount of damages to which the appellee is entitled' cannot he now determined. The motion, however, will he sustained to the extent that the judgment by which the decree of the court helow was affirmed will be corrected, so as to award the appellee five per cent, damages on the value of the policy, for the ascertainment of which value the cause will he remanded to the court he-low. Sustained in part and cause remanded.