Opinion
14975
December 6, 1939.
Before OXNER, J., Anderson, July, 1938. Affirmed.
Action by J.H. Patten against the Mutual Benefit Insurance Company on a life insurance policy. Judgment for defendant, and plaintiff appeals.
The decree of Judge Oxner, a report of which is directed, follows:
This action was brought against the defendant to recover the proceeds alleged to be due under a policy of insurance issued by it on the life of William C. Brown on June 26, 1901, in the face amount of Two Thousand ($2,000.00) Dollars. The policy was issued in consideration of the payment of an annual premium on January 1st in each year, for twenty years, at the expiration of which time no further premiums would be payable. The insured, Mr. Brown, died on November 10, 1937, and the plaintiff claims the proceeds as the assignee of the policy. When this case came on for trial at the spring, 1938, term of Court, counsel for the respective parties stipulated to the undisputed facts, waived a jury trial, and submitted the questions of fact and law to me for determination. The pivotal point for decision is whether or not the company is bound by the terms of an assignment of which it had no notice until after it had permitted the insured to withdraw the full cash value of the policy. The provisions of the policy pertinent to this allegation read as follows:
"No assignment of this policy shall take effect until written notice thereof shall be taken to the Company.
"The Company at any time while the Policy is in force, will loan up to the limit secured by its Cash Surrender Value upon receipt of the Policy and a satisfactory Certificate of Loan. The rate of interest charged shall not exceed six per cent. The loan may be paid off at any time while the Policy is in force."
The policy, by the recurrent payment of premiums, became paid up on January 1, 1921. The insured, on January 1, 1908, had borrowed Two Hundred Forty-six and 30/100 ($246.30) Dollars upon the sole security of the policy and in evidence executed and delivered to the company a certificate of loan providing, among other things, as follows: "If the interest shall not be paid when due, it shall be added to the principal of the loan, and if owing to the nonpayment of interest the principal of the loan shall ever equal or exceed the then Cash Surrender Value of the Policy, the Policy shall thereupon become null and void after one month's notice shall have been mailed to the last known address of the Insured and Assignee, if any."
Between January 1, 1915, and January 1, 1921, the insured received other advances in aid of premium payments upon the sole security of the policy aggregating One Hundred Seventy-nine and 22/100 ($179.22) Dollars, which advances or loans were evidenced by certificates of loan containing the same provisions as above quoted, but in addition thereto provided: "Said indebtedness, together with any increase in the indebtedness to the Company on said Policy for any purpose whatsoever, is a first lien thereon."
When the policy became paid up on January 1, 1921, there was an indebtedness outstanding against the same in the amount of Four Hundred Twenty-Five and 52/100 ($425.52) Dollars. After this date the insured would be required to pay the amount of the interest accrued on said loan on each anniversary at the rate of six (6) per centum per annum, as well as interest on any additional sum which might be borrowed. On February 11, 1922, the insured submitted to the defendant an affidavit wherein he represented that neither the whole nor a part, nor any interest in the policy involved in the suit has ever been bargained, sold, assigned, loaned, exchanged, or given away, either orally or in writing, and that no other person has or holds any legal or equitable claim or lien, trust, or charge on said policy. He further declared that the said policy was on an unnamed date lost or destroyed and that he has no knowledge of the date on which the policy was lost or the circumstances attendant thereto; that he has caused due search and diligent inquiry to be made and cannot find the same. This affidavit was made for the purpose of securing a copy of the policy and in reliance thereon the company issued to the insured a copy thereof. Thereafter, on March 8, 1922, the insured received a cash loan of Five Hundred Forty-five ($545.00) Dollars upon the sole security of the policy and in evidence thereof executed and delivered a certificate of loan of like tenor to the ones hereinabove referred to. At the time this loan was made the duplicate policy was produced and the company entered the loan thereon and also noted the cash loan which had been made in 1908. With this loan the indebtedness under the policy was increased to Nine Hundred Seventy and 52/100 ($970.52) Dollars. The interest becoming due on said indebtedness was settled with the aid of dividends up to and including interest due January 1, 1926. Beginning January 1, 1927, no further cash payments were made to the company on account of interest. From and including January 1, 1927, the dividends allocated to the policy were credited to the payment of the interest and the balance of the sum remaining due was added to the principal of the loan as required by the terms of the loan certificates. This mode of settlement was followed each successive year to and including January 1, 1931. The total indebtedness was thus increased to Eleven Hundred Sixty-nine and 87/100 ($1,169.87) Dollars as of January 1, 1931. On August 3, 1931, a payment of Nineteen and 74/100 ($19.74) Dollars on account of principal was made, which reduced the indebtedness to Eleven Hundred Fifty and 13/100 ($1,150.13) Dollars, which was the amount outstanding on January 1, 1932, before settlement of the interest then due. The interest falling due January 1, 1932, was not paid in cash and after crediting the dividend there remained a balance of Forty-six and 96/100 ($46.96), which upon not being paid was added to the principal of the loan, increasing the indebtedness to Eleven Hundred Ninety-seven and 09/100 ($1,197.09) Dollars. On November 8, 1932, a payment of Three and 79/100 ($3.79) Dollars was made on account of principal which reduced the indebtedness outstanding on January 1, 1933, to Eleven Hundred Ninety-three and 30/100 ($1,193.30) Dollars. On that date interest accrued in the amount of Seventy-one and 79/100 ($71.79) Dollars and the dividend available was Seventeen and 54/100 ($17.54) Dollars, leaving a balance due of Fifty-four and 25/100 ($54.25) Dollars. The full cash surrender value of the policy as of January 1, 1933, was Twelve Hundred Forty-two and 36/100 ($1,242.36) Dollars, and if the amount of the interest due was added to the outstanding loan the total indebtedness would be increased to Twelve Hundred Forty-seven and 55/100 ($1,247.55) Dollars, which amount would be in excess of the cash value of the policy. As such interest could not be settled out of the value remaining in the policy, the insurance was not continued in force for one year. On February 18, 1933, in accordance with the provisions of the loan certificates. the insured was notified by registered mail that the policy could not be so continued unless a payment of Fifty-four and 82/100 ($54.82) Dollars was made, and notice was given that unless this sum be paid on or before March 20, 1933, the policy would become null and void and marked of the company's books in consideration of the cancellation of the outstanding indebtedness. Such sum was not paid by the insured or by anyone in his behalf at any time.
According to the record, by an instrument in writing, dated December 10, 1910, the insured, William C. Brown, assigned, among others, the policy involved herein to the plaintiff, J.H. Patten, and at the same time delivered possession thereof to him. This instrument was not written on a company form, and, among other things, recites: "Now in order to better secure the payment of said note, in the event of my death before the note is finally paid in full according to the terms of said note, I hereby assign the following life insurance policies to and direct the payment of said policies (in the event of my death as above stated), to J.H. Patten, his heirs or assigns, as his or their interest may appear — less any debt which may be against any of these policies in the way of loans or the like."
It is conceded that notice of this assignment, either oral or written, was first given to the company on May 19, 1925. The loans advanced to the insured which ultimately brought about the termination of the insurance were all granted before this date. On March 11, 1933, the company addressed a letter similar to the one sent Mr. Brown, referred to above, to the plaintiff advising him that unless the sum of Fifty-four and 82/100 ($54.82) Dollars was paid by June 11, 1933, the policy would become null and void and marked off the company's books. This letter was also sent by registered mail. No payment was received on or before June 11, 1933, and on June 12, 1933, the policy was marked off the company's books because the total indebtedness, with accrued interest from January 1, 1932, added, was in excess of the cash surrender value of the policy. No question is raised as to the amount of the indebtedness or the calculations made by the company in respect thereto. Neither is there any contest as to the timeliness or regularity of the respective notices.
The plaintiff in his oral argument before the Court and in his written brief, poses the issues involved herein as follows:
First. Could the insurer under the terms of the policy make a valid loan to the insured on the security of the policy, after an assignment of the policy without notice to the insured and without "receipt of the policy," which loan would be binding on the assignee?
Second. Could the insurer, under the terms of the policy, cancel and declare forfeited a paid-up policy for $2,000.00, on which a loan had been made to the insured, which loan and accumulated interest was less than the paid-up policy of $2,000.00?
After giving the matter careful consideration I am of opinion that both of these questions should be resolved against the plaintiff and that he can not recover on either ground. The reasons for my conclusions will be stated seriatim.
It is conceded that notice of the assignment was not given to the company until May, 1925. All of the loans made by the company were prior to this date. The validity of the loans is attacked upon the sole ground that the company did not require a production of the original policy at the time of making any of the loans, except the first. It therefore follows that if the loans were sanctioned by the contract provisions, construed in the light of the general law, the plaintiff is not entitled to recover. Independent of the provisions of the policy, the law of this State, as elsewhere, seems to be clear that the debtor has the right to deal with the creditor until he has actual notice of an assignment, and that the assignee stands in the shoes of the assignor, subject to all defenses which the debtor has, not only at the time of the assignment but up until the debtor has actual notice.
In 5 Corpus Juris, page 934, it is said: "The debtor or party liable on an assigned chose in action is not affected by the assignment until he has notice thereof, and consequently he may set up against the claim of the assignee any defense acquired before notice that would avail him against the assignor had there been no assignment, and payment by the debtor to the assignor, or any compromise or release of the assigned claim by the latter before notice will be valid against the assignee and discharge the debtor; and any valid bargain or agreement between these parties in respect of the claim will be effective as against the assignee. As to such equities, the assignment takes effect from the time of the assignment." (Citing cases.)
In 6 Corpus Juris Secundum, Assignments, § 98, page 1154, the same principle is expressed as follows:
"Before he has received notice of the assignment, the debtor may discharge himself from liability to the assignee by making payment to the assignor or a third person succeeding to his interest, but not thereafter.
"Before he has received notice of the assignment, the debtor may make a payment of the indebtedness, which will be binding on the assignee, either to the assignor, or to a third person succeeding to the latter's interest and having apparent authority to receive the payment, even though the debt is not due at the time payment is made. * * *"
And on page 1156 of this recent work, 6 C.J.S., Assignments, § 100, it is said: "If he wishes to secure himself against intervening rights and equities, however, it is essential that the assignee give notice of the assignment to the debtor, for it is almost uniformly held that, in so far as may be necessary to give the debtor the benefit of intervening defenses or equities or protect him against being compelled to pay the debt twice or prejudice resulting from acts taken in ignorance of the assignment, it will not be effective against him until he has been notified thereof."
The same subject is treated in 4 American Jurisprudence, beginning at page 301. At page 304, it is said: "Generally an assignee takes the subject of the assignment with all the rights thereto possessed by the assignor, and a claim good in the hands of an assignor is ordinarily equally good and free from defenses in the hands of his assignee. An assignee of a non-negotiable chose in action ordinarily, however, acquires no greater right than was possessed by his assignor, but simply stands in the shoes of the latter. He normally takes subject to all equities and defenses which could have been set up against the chose in the hands of the assignor at the time of the assignment. * * * The rule that the assignee of a non-negotiable instrument takes it subject to equities applies to contracts generally."
The foregoing principles of law were recognized and given force by our Supreme Court in the case of Harvin v. Galluchat, 28 S.C. 211, 5 S.E., 359, 361, 13 Am. St. Rep., 671. In that case the plaintiff had taken an assignment in payment of supplies furnished for use in a building being erected for the defendant but notice of such assignment was not given to the defendant until after the contract price had been disbursed to the contractor. The action was brought under the assignment for recovery of the amount due the plaintiff. In holding that in the absence of actual notice of the assignment the defendant was not liable to the plaintiff and that she had fully discharged her obligation by payment to the contractor, the Court said:
"It is laid down in all the authorities upon the subject of assignment of unnegotiable paper, — Story, Pomeroy, and in numerous cases, — that, in order to protect his rights under an assignment, the first duty of the assignee is to give notice to the debtor. A failure to do this is at the peril of losing the debt, either by a subsequent assignment to another party, or new defenses arising between the assignor and the debtor, or a payment by the debtor to the assignor.
"It is true the term 'actual' is not used in the authorities as qualifying the notice, but it is said that notice must be given to the debtor, and, when the purpose and object of the notice is considered, we are forced to the conclusion that actual personal notice is what is meant. The object of the notice is not only to protect the assignee, but the debtor also. The debtor has contracted to pay a certain party, and at common law he could not by assignment of his contract be made the debtor of another with whom he did not contract, and to whom perhaps he would not have voluntarily assumed the relation of debtor. Equity, however, has practically repealed the common law on this subject in enlarging the rights of the creditor, by recognizing his assignment, but at the same time the debtor is protected by the principle that the assignee shall stand in the shoes of the original creditor, assignor, and that the assignment shall be subject to all the equities existing between the original parties, not only at the time of the assignment, but up to the time of notice to the debtor, which notice the assignee must give to the debtor."
The foregoing principles were approved in the more recent case of Yancey v. Stark, 132 S.C. 171, 129 S.E., 81, wherein it was held that an assignment of an account "is subject to all the equities existing between the original parties, not only at the time of the assignment, but up to the time of notice to the debtor."
In Bank of Johnsonville v. Sovereign Camp W.O.W., 130 S.C. 444, 126 S.E., 332, it is recognized that an insurer cannot be bound by an assignment of which it had no notice or knowledge until after it had disbursed the fund which was the subject of the assignment.
Couch on Insurance, Volume 6, Section 1458m, says: "* * * And although such an assignment is good as between assignor and assignee, it has been held that it is necessary to give notice to the company in order to constitute an assignment valid as against a subsequent assignee, and free from acts of an assignor as to surrender of the policy to the office. And the policy itself may provide that notice must be given to the company, and in such a case the provision should be complied with to render the assignment a valid one."
Thus under the general principles of law the company had the unquestionable right to make loans on the policy and to treat with the insured as the sole owner thereof until it received notice of the assignment. I am of opinion that these principles are not altered or modified by the particular provisions in the policy called into play. The policy provides that loans will be granted upon receipt of the policy and a satisfactory certificate of loan, but it also provides that no assignment shall take effect until written notice thereof shall be given to the company. The production of the policy, as I conclude, is a stipulation for the benefit of the company and the company would have the right to make a loan without its production if it so desired. This stipulation could not mislead a proposed assignee because it must be taken with the other stipulation that no assignment is valid until notice is given to the company. The plaintiff pleads as his excuse for failing to give such notice the provision of the policy relating to the granting of loans. It is there stated that the company at any time while the policy is in force, will loan up to the limit secured by its cash surrender value upon receipt of the policy and a satisfactory certificate of loan. The actual production of the policy at the time of making the loan was required solely for the purpose that an appropriate entry may be entered thereon and notice would thus be given that it was subject to a lien, which notice would tend to quiet disputes and lessen litigation. I am constrained to decide this point against the plaintiff on the additional ground that the company in handling the matter, exercised the utmost diligence and on the other hand the plaintiff was guilty of gross neglect. It would be highly inequitable and grossly unjust to now permit the plaintiff to assert a right in the policy when for fifteen years he stood by and led the company to believe that the insured was the sole and unconditional owner of every right, benefit and advantage created in and represented by the policy. He knew that it laid within the power of the insured to represent to the company that the policy had been lost or destroyed and to demand a duplicate thereof. He should also have known that the company, in the absence of notice of an assignment, would grant loans under the policy without its production upon the representation it had been lost. On the other hand the company, before issuing a duplicate policy, required the insured to furnish a sworn affidavit attesting to the loss of the policy and that no right or interest had been assigned or transferred thereunder. When one of two innocent parties must suffer a loss it must be borne by him whose neglect brought it about. The plaintiff is the loser by the proper application of this time-honored rule of expediency and fair dealing.
The plaintiff also predicates his right to recovery upon the ground that the company, before granting the cash loan of Five Hundred Forty-five ($545.00) Dollars in 1922, required the insured to furnish a bond to indemnify it against the loss that it might sustain as a result of making such loan in the absence of the original policy and claims that such bond inures to his benefit. However, according to my views, the giving and receiving of this bond does not affect the situation. The plaintiff is either entitled, or not entitled, to recover apart from the bond and its requirement could not increase or diminish any rights of the company. The company could very well have taken the view that it could make its loan without production of the policy, but realizing the uncertainty of what some Court might hold, decided out of an abundance of caution to require the bond. The premium was paid by the insured and the plaintiff knew nothing about it. In fact the condition of such bond has never been breached. The bond did not undertake to indemnify any person other than the company for any loss that they might sustain as a result of the granting of the loan in the absence of the original policy. The person to be indemnified is the company and as it suffered no loss no right of action can be maintained under the bond.
The insured would not be heard to deny the validity of the loans or permitted to check the processes leading to foreclosure upon his failure to pay the required interest. As the company has fully discharged its obligation to the assignee, because the latter stands in the very shoes of the former and can claim no higher rights. It is further contended that the provisions of the policy, providing that no assignment shall take effect until written notice thereof shall be given to the company, relate merely to such notice which should be given at the time of the death of the insured. To my mind the language used is not capable of such construction. In simple words the company said it would not be bound by any assignment unless it be given written notice thereof. Such provision was inserted for its protection and it was equally effective at the time application was made for loans as at the time the policy matured as a death claim. It follows therefore that the loans made by the company to the insured are valid and enforceable and in consequence thereof the policy of insurance expired without value during the lifetime of the insured and all rights thereunder have long since ceased and determined.
The company advances the point that the phraseology of the instrument of assignment implies that the insured may make such loans thereon as he chooses and the value of the policy permits. By reference to this instrument, the pertinent parts of which are quoted above, it is entirely rational and easily deducible that the insured did not intend to make an outright, unconditionable assignment of the policy or to surrender irrevocably all of his interest therein. Confessedly the assignment was given as collateral security to a loan advanced by the plaintiff, and by the language used it is evident that such security was to be available only in the event the insured died before the repayment of such indebtedness, and then only if the insured continued to maintain the policy in force by the payment of premiums thereunder and refrained from withdrawing its cash value. There is merit in this contention but as I have decided this case upon other grounds I will not undertake to pass upon it.
The second question involved must likewise be resolved in favor of the company. The issue as to whether or not the company had the right to foreclose the loans and mark off the policy upon the failure of the insured and assignee to pay the required loan interest, after due notice had been given to each of them, has been concluded in this State by the cases of Livingston v. Mutual Benefit Life Insurance Company, 173 S.C. 87, 174 S.E., 900, and Davis v. Acacia Mutual Life, 177 S.C. 321, 181 S.E., 12. In these cases it was clearly held that the company had the right to foreclose the loans in the method agreed upon in the contract. In the Livingston case the policy had become paid up, the same as the policy here. There was an outstanding loan and the insured failed to pay matured interest, and there was not sufficient equity remaining in the policy to settle such interest. The insured was given notice that unless a specified sum should be paid before a given date the policy would become null and void and marked off the company's books in consideration of the cancellation of the indebtedness. Upon failure to make such remittance within the required time the loan was foreclosed during the lifetime of the insured. In sustaining the validity of the policy provisions and approving the method of foreclosure, our Supreme Court said ( 173 S.C. 87, 174 S.E., 901): "We have not been cited to any statute of our state similar, perhaps, to statutes of other states, providing by law for the foreclosure of a loan on a life insurance policy. Neither have we been referred to any case in our decisions which we think is in any way controlling of the question before us. The matter of the manner of foreclosure appears, therefore, to be one which may be properly the subject of contract between the parties, the insurer, and the insured. The contract here provided that method, namely, when the amount of the outstanding loan, and the interest due thereon, would exceed the amount of the cash surrender value of the policy, the insurer could cancel the policy upon thirty days' notice by mail to the insured of the intended cancellation, if the insured failed to pay the interest due on the loan. The method, agreed to by the insured, was followed."
It will be noted that the case relied upon by the plaintiff here, namely, New York Life Insurance Company v. N.L. Curry Bros., 115 Ky., 100, 72 S.W. 736, 61 L.R.A., 268, 103 Am. St. Rep., 297, was cited and rejected in the Livingston case. Our Court held that the opinion in that case was unsound and expressed its preference for the ruling adopted by the Georgia Court in the case of Hammond v. Volunteer State Life Insurance Company, 47 Ga. App., 472, 170 S.E., 681, 685, where it was said: "A stipulation in a paid-up policy of life insurance and a loan agreement thereon, providing for what amounts to a method of foreclosure, after the giving of the prescribed notice, by the cancellation of the policy and the application of the cash value thereof to the payment of the loan whenever the past-due principal with the interest thereon equals or exceeds the actual cash value of the policy (as distinguished from some amount arbitrarily fixed by the insurer without regard to the actual value), is valid, and does not contravene public policy or amount to confiscation or to an agreement for the exaction of a penalty for nonpayment of the indebtedness, since, under such a contractual procedure, the insured realizes the full amount of all his rights and interest in the policy at the time of such cancellation."
The plaintiff here also claims that the decision in the Livingston case is not conclusive of the issue because in that case the policy included language which is not found here. However, the plaintiff has entirely overlooked the fact that the language lacking in the policy is supplied in the certificates of loan. As stated above, the policy provides that loans will be granted within certain limits, upon the execution of a satisfactory certificate of loan. Each of the certificates provided that if the interest shall not be paid when due it shall be added to the principal provided the entire indebtedness then outstanding shall be within the limit secured by the cash surrender value of the policy; otherwise, nonpayment of interest shall render the policy null and void after one month's notice shall have been mailed to the last-known address of the insured and assignee, if any.
In the case of Davis v. Acacia Mutual, Supra, the provision relating to the foreclosure of loans in the event of nonpayment of interest was contained in the certificates rather than in the policy, as is the case here. It was contended that as the policy itself did not contain these provisions, that the beneficiary was not bound thereby. It was further contended that such provisions were in conflict with the terms of the policy. In holding that true contract should be established by the provisions of both the policy and the loan certificates, and that there was no conflict between them, the Court said ( 177 S.C. 321, 181 S.E., 15): "In the case at bar, as we have held, the beneficiary had no vested interest in the insurance, but merely an expectancy. Furthermore, it does not appear that the provisions in the policy are in conflict with those contained in the note, as contended by the appellant. While the policy alone does not provide a plan of foreclosure, the insurer agrees with the insured to make him loans, as therein indicated, with interest at 5 per cent., upon a valid and satisfactory assignment of the policy as security. No form of assignment or of the loan note is set out, these things being left to the agreement of the parties in the execution of the loan note itself. It seems clear, therefore, that the provisions embodied in the policy and those contained in the loan note together make up the completed contract of loan between the parties, and must be considered together in determining and fixing their rights thereunder. Of course, if there were any conflict between the two, the policy would unquestionably control."
It therefore follows that this contention of the plaintiff is without merit and cannot be sustained. It is further asserted that in deciding the Davis and Livingston cases the Court did not have in mind Section 1921 of the Code of 1932, which prohibits an insurer from discriminating between insurance of the same class. However, I am of opinion that the reason why the Court did not make reference to this section is because it concluded, as I have, that this section is without application to the issues arising in either case. I am unable to see any discrimination. The policy and certificates of loan provide the manner in which a loan will be foreclosed in the event the amount of the indebtedness equals or exceeds the cash value. The policy holders are granted the same rights, benefits and privileges and suffer the pain of the same forfeiture.
The plaintiff argues that if a bank, instead of the company, had made the loan upon the security of the policy if could only collect the principal and interest and that the exaction of any greater amount would be usurious. It is contended that as all of the indebtedness on the policy including interest amounted only to Fifteen Hundred Eighteen and 80/100 ($1,518.80) Dollars at the date of the death of the insured, and as the face of the policy was Two Thousand ($2,000.00) Dollars, there was a value of at least Four Hundred Eighty-one and 20/100 ($481.20) Dollars remaining therein at the time of the insured's death. This argument overlooks the fact that in taking such an assignment the bank could have foreclosed and exhausted the insured's interest in the policy. Suppose, also, the insured had survived his expectancy by ten or fifteen years, then when he died the principal and accrued interest on the loan would have amounted to more than the face value of the policy. Under the plaintiff's theory such a loss would have to be borne by the company, which would make a discrimination in favor of the borrower and one against the non-borrower. There is no need for further discussion here as to whether or not a discrimination has been made between borrowers and non-borrowers, as there is no question arising in the case that insurants of the same class are treated differently. If any further refutation is necessary to the argument advanced by the plaintiff it may be found in an annotation found in 106 A.L.R., at page 1538, where it is said: "There is nothing in the record to show or indicate that there is any difference or discrimination in the form or terms and conditions of the insurance contracts issued to individuals of the same class and equal expectation of life. In the provisions of the covenant of insurance and loan agreement there is no discrimination against borrowing covenant holders. The covenant holders who permit the accumulated reserve of cash value to remain intact are, upon the lapse of the covenant, entitled to extended insurance for the full amount of the face of the contract; and the fact that those who withdraw all or part of this cash value by way of loan which by contract between the parties, becomes due and payable immediately upon the lapse of the covenant of insurance, are entitled only to the amount of extended insurance which the available net cash value will purchase and is not a discrimination against such policy holders."
See, also, an interesting note in 54 A.L.R., 1070. The plaintiff undertakes to find strength for his position in the recent case of Pressly v. Pilot Life Insurance Company, 186 S.C. 209, 195 S.E., 332, 333. However, after a careful study of this case I am of opinion that due to the varying policy provisions and the underlying facts, the principles of such case have no application whatsoever to the issues at bar. For such reason it is neither controlling nor persuasive authority.
For the foregoing reasons I am of opinion that the contract of insurance, in accordance with its terms, expired during the lifetime of the insured and that neither the plaintiff, as assignee, nor anyone else can assert and enforce any right thereunder. It is, therefore, ordered and adjudged, that the complaint be, and the same hereby is, dismissed, and that judgment be entered in favor of the defendant, with costs.
Mr. Leon W. Harris, for appellant, cites: Validity of oral assignment of policy: 58 S.C. 280; 36 S.E., 561; 95 S.C. 16; 78 S.E., 439; 98 S.E., 266; 139 S.C. 23; 137 S.E., 199; 181 S.E., 755. Rights of assignee: 138 S.E., 184; 131 S.E., 598.
Messrs. Thomas, Cain Black and Watkins Prince, for respondent, cite: Rights of assignee of non-negotiable chose in action: 133 S.C. 431; 131 S.E., 598; 2 R.C. L., 629; 1 Rich. Eq., 105; 6 Rich. Eq., 289; 14 S.C. 621; 15 S.C. 610; 22 S.C. 9; 31 S.C. 420; 10 S.E., 104; 38 S.C. 138; 17 S.E., 463; 19 L.R.A., 831; 45 S.C. 83; 22 S.E., 747; 49 S.C. 469; 27 S.E., 475; 56 S.C. 313; 33 S.E., 575; 63 S.C. 433; 41 S.E., 523; 90 A. S.R. 681; 68 S.C. 246; 47 S.E., 71. Failure of assignee to notify insurer: 132 S.C. 171; 129 S.E., 81; 132 S.C. 340; 127 S.E., 562; 28 S.C. 211; 5 S.E., 359. Failure to pay interest on loans in accordance with terms of policy: 173 S.C. 87; 174 S.E., 900; 177 S.C. 321; 181 S.E., 12; 182 S.C. 162; 188 S.E., 784; 284 U.S. 489; 76 L.Ed., 416; 151 U.S. 452; 38 L.Ed., 231; 104 U.S. 88; 26 L.Ed., 662; 93 U.S. 24; 23 L.Ed., 789; 31 F.2d 862; 4 S.C. 321; 107 S.C. 536; 93 S.E., 197; 166 S.C. 181; 164 S.E., 609.
December 6, 1939. The opinion of the Court was delivered by
We have given careful study to the arguments of counsel in this appeal, and have given a like consideration to the decree of Judge Oxner. We are satisfied that he has fully considered and decided all the questions made by the pleadings and the arguments and that he has correctly decided them.
The case of Livingston v. Mutual Benefit Life Insurance Company, 173 S.C. 87, 174 S.E., 900, is in apt analogy with the facts, and questions of law involved, and the findings and conclusions of the Court, and is decisive of, the case at bar.
The decree of Judge Oxner is satisfactory to this Court. Let it be reported.
Judgment affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BAKER and FISHBURNE concur.