Troy v. London

Action on Insurance Policy. Insurance; Assignment; Insurable Interest; Presumption. — When an ’executrix claims tlie proceeds of a policy issued upon the life of another, and transferred by assignment to her testator to secure an indebtedness, present and prospective, the burden was upon her to allege and prove an existing indebtedness; as there is nci presumption that testator had an insurable interest in plaintiffs life sufficient to sustain the assignment.

Appeal from Birmingham City Court. Heard before Hon. Charles Á. Senn. Alexander T. London sued the Mutual Life Insurance Co. to recover a dividend due upon a certain policy of insurance issued by said Company upon his life. The Insurance Company answered that the amount was due, and paid the fund into court, alleging and making affidavit that the executor of D. S. Troy, deceased, Florence Troy, claimed the money. The executrix filed a claim setting up that the policy liad been transferred and assigned to her decedent in writing,, for a valuable consideration, and had never been reassigned or transferred to London. Demurrers were sustained to this plea and claim, and another claim was filed setting forth the pa-, per writing transferring the claim in full. This writing showed that it was transferred to protect claimant’s decedent from liability on account of any endorsement for plaintiff London, and to secure him for any sum that London might owe him then or thereafter, and for no other purpose. The claim contained no averment that decedent’s estate was liable for any endorsement for plaintiff, or that plaintiff was indebted to decedent or his estate in any manner. Demurrers were interposed and sustained raising the questions last above set out, and from this order this appeal is taken. It was unneccessary to allege that there were endorsements for -which the estate was liable, or that plaintiff in the court below was indebted to the decedent. If the debts or liability for which the transfer was made to secure had been paid that was a matter of defense not necessary to be alleged in the claim. The demurrers were properly sustained. To make a triable issue, when money is paid into court, the claimant must propound his claim in writing, which must contain all the averments necessary to show title in the claimant. — Johnson v. Ma.vey, 43 Ala. 539; Coleman v. Chambers, 127 Ala. (>15-620. A person claiming as assignee of a life policy, must allege and prove an insurable interest, and a complaint, merely alleging an assignment to a third person is demurrable. — Ala. Gold Life Ins. Go. v. Mobile Go., 81 Ala. 329-333. An assignment of a life policy by the assured to one having no insurable interest in the life of the insured, if absolute, is illegal, and void, on grounds of public policy. —Ilelmetacfs Admr. v. Miller, 76 Ala. 183; Ala. G. L. Ins. Go. v. Mobile Go., 81 Ala. 329-333; Stockier v. Thornton, 88 Ala. 241; Spies v. Btikes, 112 Ala. 584; Culver v. (layer, 129 Ala. 602; Warnoek r. Davis, 104 U. S. 775; Franklin Ins. Go. v. Haggard, 41 Ind. 116; Insurance Go. v. Bturges, 18 Kan. 93; Price v. First National Bank, 62 Kan. 743; Bchlamji r. Berner’s Admr., 21 Ky. L. R. 343, 51 S. W. 312; Heusncr v. Mutual L. Ins. Go., 47 Mo. App. 336; Powell v. Dewey, 123 N. C. 103; Downey v. IT off nor, 110 Pa. 109; Gilbert v. Moose’s Admr., 104 Pa. 74; Oheeves v. Anders, 87 Tex. 287; Bchonfield v. Turner, 75 Tex. 324 7 L. R. A. 189; Long v. Meriden Go., 94 Va. 594. If such assignment is made as collateral security, it is only valid to the extent of the money paid with interest. — Ilelmetag’s Admr. v. Miller, 76 Ala. 183; Belli on-field- v. Turner, 75 Tex. 324 7 L. R. A. 189; Warnock v. Davis, 104 U. S. 775.