Ely v. Hartford Life Ins.

*803 Opinion op the Court by Judge Settle

Affirming.

This action was instituted by appellant in the court below to recover of the appellee Hartford Life Insurance Company $2,000 alleged to be due her as the named beneficiary in a policy of insurance for that amount, issued upon the life of her husband, Joseph Ely, some years previous to his death, which occurred in Payette county in September, 1898. The Union Savings Bank & Trust Company, assignee of the Specialty Carriage Company, and the Specialty Carriage Company, both incorporated under the laws of Ohio and having their chief offices and places of business respectively in the city of Cincinnati, that State, were also made parties defendant to the action, but the action was later and on appellant’s motion dismissed as to these defendants and thereafter prosecuted against the appellee, Hartford Life Insurance Company, alone. The answer of the latter admitted the issual to Joseph Ely, deceased, of the policy for the benefit of appellant, but averred that the former several years before his death became indebted to the Specialty Carriage Company in a considerable sum, for which he executed to that company a writing acknowledging and promising to pay it and to secure its payment, together with his wife, the appellant, Naomi Ely, by a proper writing pledged and assigned to it, ■ the policy in question, and that the policy and written assignment were thereupon delivered to the Specialty Carriage Company, and that thereafter appellee upon the presentment to it of the written assignment consented thereto by proper statement upon the policy and by making the customary entry upon its records. The answer further averred that at the death of *804 Joseph Ely the Specialty Carriage Company still held the policy under the assignment as collateral security for his indebtedness to it, which then amounted to $2,053.57; that soon after the death of Joseph Ely the Specialty Carriage Company made an assignment of its property to the Union Savings Bank & Trust Company for the benefit of its creditors by which it came into possession of the policy in question, and as such assignee it made out and forwarded to appellee proof of the death of Joseph Ely, and shortly thereafter brought suit against it in the superior court of Hamilton county, Ohio, to recover the amount of insurance due under the policy; that appellee filed an answer in that action which admitted its indebtedness upon the policy and willingness to pay it to whomsoever the court might adjudge, but asked that it be not required to pay until appellant could be brought before the court and be permitted to show what interest, if any, she had in the policy. The answer was made a cross-petition against appellant, who was therein and by an order of interpleader entered by the court made a party defendant to the action and cross-action, and called upon to answer and assert whatever claim she might have to the proceeds of the policy in controversy. It further appears from the averments of the answer filed in the action in the Payette circuit court that copies of the petition, answer, and cross-petition and order of interpleader entered by the superior court of Hamilton county, Ohio, making appellant a party to that action, were, together with a. summons issued from that court, duly served upon her, in Payette county, Ky., by a person appointed by the Ohio court to perform that duty, and that after the expiration of the time allowed her by the order of interpleader to appear in the Ohio court to assert *805 claim, to the proceeds of the policy, but before that court rendered judgment directing that the proceeds of the policy be paid the assignee of the Specialty Carriage Company in satisfaction of the indebtedness of Joseph Ely’s estate to it, as a matter of precaution other copies of the same pleadings, order of inter-pleader, and an additional summons were served upon appellant by another appointee of that court. In addition to the foregoing facts the answer pleaded in apt terms the jurisdiction of the Ohio court of the parties to and subject-matter of the action in that court; also the conformity to the provisions of the Ohio Code of the steps taken to make appellant a party to the action and afford her an opportunity to assert in that court whatever claim she might have to the proceeds of the policy, and finally that the judgment of the Ohio court was and is conclusive of the rights of the parties and a bar to the action brought by appellant in the Fayette circuit court. The averments of the answer were traversed by reply, but later an amended reply was filed in which the jurisdiction of the Ohio court and the validity of its judgment was denied, and it was alleged that appellant was induced to place her signature to the writing assigning the policy on her husband’s life to the Specialty Carriage Company by the importunities and threats of her husband and the misconduct of the carriage company, and the act, being the result of duress, did not divest her of her interest in the policy or right to its proceeds. The affirmative matter of the original and amended reply was controverted by rejoinder. Upon the issues thus formed and the proof taken by the parties the court rendered judgment dismissing the action at appellant’s cost, and she, being dissatisfied with the judgment, has appealed.

*806 We think the judgment was proper. Appellant’s contention that her signature to the writing by which the policy was assigned to the Specialty Carriage Company was the result of duress is not fairly sustained by the evidence. Her version of that transaction is that the policy had been delivered to her by her husband after it was issued, and was kept by her in a drawer, from which he took it and sent it to the carriage company, which retained it several months and then sent it to her husband, with the request that he and his wife execute the assignment and return the policy; that she was induced to execute the assignment by the threats of the carriage company, to whom her husband was indebted, that he would be prosecuted for embezzlement if she did not join him in the assignment, and by the husband’s threats that he would kill himself if she did not sign the paper. She did not claim that’ any officer or agent of the Specialty Carriage Company was present when the instrument was signed by her, or that any representative of the company had ever communicated with her on the subject, but that she had seen, and for a time had in her possession, several letters from the company to her husband containing intimations of prosecution unless an assignment was made of the policy. None of these letters were offered in evidence. It is true appellant testified they were burned with her house, and her daughter testified to having seem some of them, and a son one of them. Appellant, her son and daughter say she refused to write her name to the assignment when the son by request of the husband carried it to her for that purpose. Appellant and her daughter also said that the husband then came and asked her to sign it and she refused to do so until he threatened to leave home and kill himself, and that she then *807 yielded, but wept wbeu sbe signed the paper. In view of the testimony of appellant, her son and daughters, it is strange that she said in a letter inclosing the policy to the carriage company, written November 27, 1895, by her for her husband, this being the first time the policy was sent: “I have had the policy in'the desk at the shop for some time to.send to you, but. would forget to mail it. ’ ’ And stranger still that, on April 23,1896, when the policy was returned with the assignment to the carriage company, she again wrote: “I send under separate cover the .insurance policy [which, according to the evidence, was sent with the assignment.] It was just handed me a few days ago by Ambrose. ” The Ambrose here mentioned was the attorney of appellant and her husband. After this several letters, covering a period of two years, were, written by appellant for her husband to the carriage company, in one of which the company wás thanked for paying a premium on the policy, and in not one of which was there complaint that appellant had acted under duress in executing the assignment, or even an intimation made on her own account or for her husband that she had reluctantly signed .it. Sterett, the manager of the carriage company, who admittedly conducted all its correspondence with the Ely’s testified that he had no information that appellant had .executed the assignment under duress, but supposed that she had done so voluntarily and freely, and that he had never written a letter to her or her husband containing a threat of arrest or prosecution for embezzlement or any other crime or offense. He was corroborated by the stenographer who wrote all his letters, including the correspondence with the Ely’s.

Another circumstance appears to be unexplained in the record. That is the failure of appellant to rely *808 upon and plead in her original reply the duress complained of. The amended reply gives no reason for the omission. Upon the question of duress we are not prepared to say that appellant is supported by the weight of the' evidence. If, however, it be conceded that the conduct and threats of appellant’s husband were such as to constitute duress, in the absence of proof sufficient to connect the carriage company with or show its knowledge of it, such duress would not affect the validity of the assignment of the policy to it. Duress to avoid a contract must be the act of the other party himself or his agent, or must be imposed with his knowledge and taken advantage of by him for the purpose of obtaining the agreement. Duress by a third- person will not avoid a contract made with a party who was not cognizant of it. In Long, etc., v. Branham, 99 S. W. 271 , 30 Ky. Law Rep. 552 , there was an attempt to set aside a mortgage, one of the grounds being that the wife had executed, it under duress, produced' by the. acts of her husband, aided by the conduct of the grantee. In respect to this complaint the court said: “While the evidence is conflicting, we are not disposed to disagree with the conclusion of the lower court that the weight of it is against appellant’s contention that Mrs. Long executed the mortgage under duress, unless it was such as proceeded from the husband alone. That in signing or acknowledging the mortgage she acted with great reluctance we are satisfied, but the excitement and distress under which she labored at the time were apparently produced by the influence upon her by him. It was the conduct of the husband, or what he said to her in the conversation between them, after the mortgage had been written and before she acknowledged it, that gave her distress and caused her to weep.” *809 Fightmaster v. Levi, 17 S. W. 195 , 13 Ky. Law Rep. 412 ; Hall v. Hall, 118 Ky. 656 , 82 S. W. 269 , 26 Ky. Law Rep. 553 .

Although it is insisted hy counsel for appellant that the claim of- the Specialty Carriage Company against the estate of Joseph Ely has not been sufficiently made out, we are unable to see that any item of it is controverted by appellant. We think the claim sufficiently established by the proof. At the time of the assignment of the insurance policy by appellant and her husband to the carriage company the latter’s indebtedness to it was $3,945.89. Between that date and his death this amount was reduced by successive payments to $2,053.57, and this is the amount for which it obtained judgment in the Ohio court. It is apparent, therefore, that the amount of the insurance policy was not quite sufficient to pay the debt.

The course taken by appellee to bring appellant before the Ohio court seems to have conformed literally to the requirements of the statutes of that state. Section 5045, Rev. St; 1898, provides: “Service may be had by publication in actions which relate to, or the subject of which is real or personal property in this State when a defendant has, or claims a lien thereof, or an actual or contingent interest therein, or the relief attempted consists wholly or partly in excluding him of any interest therein and such defendant is a nonresident of the State.” Another part of the same statute (section 5049) contains the further provision: ‘ ‘ That when service may be made by publication, personal service of a copy of the summons and petition may be made out of the State upon such defendant. ’ ’ Although properly served with summons, copy of the petition, cross-petition, and copy of the order of interpleader twice at her home in this State, appellant *810 allowed the appointed time for answering to expire without making a defense to that action, and having thus made default, the Ohio court proceeded to enter judgment in the case against the appellee in favor of the Specialty Carriage Company, decreeing that the proceeds of the policy of insurance owing by appellee be paid into court and applied to discharge the carriage company’s debt. Appellant’s action in the Payette circuit court was instituted after that in the Ohio court, and after she had been served with process from the Ohio court. At the time the action was brought in the Ohio court the policy of insurance was held by the carriage company, plaintiff in that action, as security for its debt, and was filed with the petition in that action; therefore the situs of the property, the lien upon which was asked to be enforced, was in the county of Hamilton, state of Ohio, and within the jurisdiction of the court in which the action was brought. Appellant was legally notified of the pend-ency of that action, its nature- and object, and had ample opportunity to set up a claim to the policy in. that action, and this being true, we think the judgment of that court was a final determination between her, the Specialty Carriage Company, and appellee as to the disposition 'of the proceeds of the policy. While it is unquestionably the law that a judgment in personam against a nonresident defendant not served with process in the jurisdiction of the court is void, it is equally, true that a judgment in. rem against a nonresident defendant, though only before the court on constructive service, is not only good against him, but as against all other persons claiming interest in or title to the property proceeded against having notice of the proceedings.

It has been held by this court that a debt due a *811 nonresident from a person in this State may be attached and recovered by the creditor of such nonresident by bringing the latter before the court by constructive service only, and that a judgment rendered on such state of case is a complete bar to an action subsequently brought by the nonresident against the debtor in whose hands the money was garnished; the doctrine being that the proceedings so far as the thing attached is concerned is an action in rem. l. C. R. R. Co. v. Smith, 70 Miss. 344 , 12 South. 461 , 19 L. R. A. 577, 35 Am. St. Rep. 651 ; Bragg v. Gaynor, 85 Wis. 468 , 55 N. W. 919 , 21 L. R. A. 161; Neufelder v. German American Ins. Co., 6 Wash. 336 , 33 Pac. 870 , 22 L. R. A. 287, 36 Am. St. Rep. 166 ; Williams v. Preston, 3 J. J. Marsh. 600, 20 Am. Dec. 179 ; Whiting v. Johnson, 5 Dana, 391 . The doctrine announced in these several cases that to entitle a judgment in a proceeding in rem, authorized by a statute of the state in which such proceeding is instituted, but in which the defendant was not personally served with process and did not appear, to full faith and credit in another state, the res must have been attached dr seized, or at least have been within the jurisdiction of the court rendering the judgment.

For the reasons indicated, the judgment is affirmed.