BTNA NAT. BANK tI. UNITED STATES LIFE INS. CO.
'.. oumstanoes of this oase, we do not think suffioient to justify the issuing of a preliminary injunction. If the complainant is so advised, this cause may be oontinued, so that hereafter, if it should indeed prove to be true that a certain and adequate provision has not been made for payment of the amount which shall be ascertained to be due to the complainant, the further action of this court may be invoked. 'fhe application for a preliminary injunction is denied. BOND, J'J concurred.
AllTNA NAT. BANK OF HARTFORD, CONN., and others, v. UNITED STATES LIFE INS. Co. and others.
(Oircuit OOUN, 8. D. New Y01'k.
November 24, 1885.)
In Equity. Motion for leave to pay money into court. William S. Melvin, for complainants. O. P. Buel, for the Insurance Co. John W. Weed, for defendant Harwood. BROWN, J. The oomplaint in this case is in the nature of a. judgment creditors' bill filed by several judgment creditol's of Norman B. Harwood, late of Florida, deceased, to have applied in satisfaction of their judgments the amount payable by the United States Life Insurance Company upon a policy of life insurance effected on ,the life of the judgment debtor, and payable, according to the terms of the pol. icy, to his widow, the defendant Susan B. Harwood. The grounds of the complainants' claim are two: First, a fraudulent use of large sumi:> of money belonging to the judgment debtor in procuring the insurance; and, second, the provisions of the statute of the state of New York, (Laws 1858, c. 187, § 1,) that when the premiums paid exceed $500 per year the excess shall accrue to the benefit of the hUB-
hand's creditors. Both defendants have appeared and answered; the insurance company making no defense, but stating its readiness to pay the amount due upon the policy to whomsoever may be entitled to it. The widow, by her answer, denies generally all the allegations of fraud, and alleges that under the statutes of Florida, where the contract was made and the policy delivered, no such exception in favor of creditors exists, and that the whole amount of the policy is due and payable to her. The insurance company now moves for leave to pay the money into court, as having no interest in the controversy. The motion has been argued with great care upon both sides. The defendant Harwood insists that nothing should be done by the court to relieve the insurance company from its alleged duty of paying her at once, according to the terms of the policy, and without regard to the complainants' claims. The complainants, however, have a legal right to conduct the proceedings that have been instituted to a judicial termination. Both defendants have appeared, tbe fund is within the jurisdiction of the court, and the court must ultimately make a final decree, disposing of the fund and of the rights of the parties. By the filing of the bill the complainants have acquired an equitable lien upon the fund for any amount they may ultimately succeed in holding applicable to their judgments, whether it be the whole or only a part of the fund; and this decree will be binding and conclusive upon Mrs. Harwood, as well as upon the insurance company. The insurance company, therefore, cannot safely pay either claimant, except at its peril of anticipating rightly the ultimate judgment of the court. The fund in question arises under the policy of insurance, both parties claiming under the same instrument. Without considering in detail the numerous cases on the subject of interpleader that have been cited, I am of opinion that in the situation of the parties in this case, the motion should be granted. The equitable lien which the complainants have obtained by the filing of their bill is a controlling feature. The fund must be disposed of in this cause. The insurance company has no interest, as between the opposing parties contending for the fund, and is substantially in the situation of a stakeholder. It should be allowed, therefore, to pay the money into court, including the interest upon it from the time it became due and payable, according to the terms of the policy. One advantage that will accrue to Mrs. Harwood from such an order will be the power of the court to award her at once, upon her application, and upon suitable security, the payment of a portion of this amount, should satisfactory reasons therefor appear.
& CO. tl.
FARGl:J & CO.
MINER and others.
Oalif<Yrnia. November 9, 1885.)
In Equity. Pillsbury et Blanding, for complainants. Langhorne et Miller, for defendants. SAWYER, J. This is an application for a preliminary injunction, in a suit on the equity side of the court, brought by the banking-house of Wells, Fargo & Co. against Richard S. Miner, Frank Silva, and the Southern Development Company of Nevada, to compel them to interplead with one another respecting a certain certificate of deposit, for $7,500, which was issued by complainant to defendant Silva. From the papers used on the hearing, it appears that Silva sold a mining claim to the Southern Development Company for an agreed price of $10,000, and received in payment a check for that amount on the Bank of California. Silva deposited the check with the banking house of Wells, Fargo & Co., who thereupon paid him $2,500 in coin, and issued to him a certificate of deposit for $7,500, "payable to Frank Silva, or order, on return of this certificate properly indorsed." By mesne assignments, before maturity, the certificate came into the possession of the defendant Miner, who now claims to be the owner and holder thereof: but he is alleged by the Southern Development Company not to be a holder in good faith. The Southern Development Oompany claims that in the sale of the mine Silva made certain false and fraudulent representations as to its character and value, upon which it relied, and by reason thereof it is entitled to rescind the sale, and recover back everything of value which it paid to Silva. Accordingly, before any presentation of said certificate for payment, the Southern Development Company notified Wells, Fargo & Co. that the check on the Bank of California had been obtained by Silva by means of fraud, misrepresentation, and deceit, and that it claimed the certificate in question, and warned them not to pay it to The Southern Development Company then caused Silva to be arrested and prosecuted on the criminal charge of obtaining money