88 FEDERAL REPORTER.
forllla, In Book 7 of Maps, at page 40,' and also all that part of Crescent avenue heretqfore vacated and not occupied as a pubUc street, lying northwest of and adjoining lot 1, aforementioned, together with 23 shares of the capital stock of the Uedlands Heights Water Company; and whereas, the said mortgage so held against the said real property by the said party of the second part was given to secure the payment of a certain promissory note for $6,000, which said promissory note, with accrued and accumulating Interest. now remains due and wholly unpaid; and whereas, said Anthony G. Hubbard, said party of the second part, Is now the owner and holder of tbe said policy of Insurance on the life of the said George W. Meade: Now, therefore. this of agreement witnesseth that the said Anthony G. Hubbard sball be and remain the owner of the said poUcy of Insurance hereinbefore referred to, and shall hold the same for the purpuse of securing him, the said party of the second part, for any advances of money whicb he, the said party of the second part, may make to the said party of the first part, or either of them, and It is agreed that the said Anthony G. Hubbard may, at his option, hold the said policy of Insurance as collateral security for the said promissory note hereinbefore referred to, and as additional security for the payment of the same, In addition to tbemortgage which he now holds against the said real property hereinbefore referred to and described. But It Is distinctly understood anQ agreed that the holding by the said party of tbe second part of the policy of insurance as further' and additional security In connection witb the said mortgage shall In no manner be construed as extending tbe time of of the promissory note, to secure the payment of which the said mortgage was given. and is now beld by the said party of the sE'cond part. the object bE'ing to allow the said party of the second part the privilege 01' option of considering and holding the said policy of insurance as further securify for the payment of the said promissory note in the said mortg 'ge described and hereinbefore referred to. according to the terms of the said promissory note, as the same was originally drawn and as the snme now exists. In witness Whereof, the said parties have hereunto subscribed their names this day of October, 1894. . George W. Meade. Anna Meade." "[Signed] ·
On the day after said agreement was executed, to wit, October 30, 1894, said Hubbard advanced and paid the quarterly premium on said policy for said month of October, and thereafter, on January 17, 1895, advanced and paid the quarterly premium on said policy for said ,month of January. The promissory note mentioned in the agreement has been discharged. On the 13th day of March, 1895, said insurance company issued another policy of insurance,-No. 665,889,for $15,000, on the life of said George W. Meade, payable to himself; the annual premium on said last-named policy being $562.50. On the 21st day of March, 1895, said Hubbard and Meade entered into the following agreement:
"'l'his agreement, made and entered Into this 21st day of March, A. D. 1895, by and between A. G. Hubbard, of the city of Redlands, San Bernardino county, party of the first part, and Geo. W. Meade, of the same place, the party of the second part, witnesseth: That Whereas, the party of the second part now holds a policy of insurance on his life In the New York Life Insurance Company, of the state of New York, which polley Is numbered 186,405; and whereas, the said party of the second part has had Issued to him another policy of insurance on his life In the same company above mentioned for the sum of fifteen thousand dollars ($15,000.00), Which said second policy of insurance is numbered 665,889; and whereas, the said party of the second part Is unable to pay and keep up the payment of premiums due and to become due on each ot said policies according to the terms of the same and each of the same; and whereas, further, said party of the second part desires the said party ot the ftrat part to advance to him, the said party
WlDAhfAN V. HUBBAlW.
of the second part, the sum of three thousand six hundred ninety dollars 1$3,690.00); and whereas, It Is understood that if the said party of the first part shall· pay and keep up the premiums. due and to become due upon each of said policies of insurance during the lifetime of the party of the second part, subject to the limitations hereinafter recited, and shall also pay unto said party of the second part the said sum of $3,690.00, that the said party of the second part wlll transfer and assign unto the said party of the first part the said. policy of Insurance numbered 665,889, above referred to, as the property absolutely of the said party of the first part, so as to confer upon the said party of the first part, his heirs or assigns, the right absolute to receive and collect from the said New York Life Insurance Company, under the said policy numbered 665,889, upon the death of the party of the second part, the entire sum of money made by said policy last mentioned payable unto the said Geo. W. Meade, his executors, adminlRtrators, or assigns, and being, as mentioned in said policy, the sum of $15.000.00: Now, therefore, the said party of the first part does hereby agree to pay and keep up the payments of all premiums due and to become due upon both of the polldes hereinbefore mentioned during the lifetime of the party of the 2nd part. And it is also agreed that first party is to advance and pay to the said party of the second part the sum of $3.(;90.00, the receipt of which Is hereby acknowledged by the said party of the second part, and in consideration of the agreements hereinbefore undertaken to be performed by the said party of the first part, and also the payment unto him, the said party of the spcond part, the said sum of $8,G90.00, the said party of the second part does hereby assign, transfer, and set over unto the said party of the first part In absolute ownership the said policy of insurance numbered 6(;5,889, anil does hereby authorize and empower the said party of the first part, his heirs, executors, administrators, or assigns, to receive and collect the said sum of $15,000.00, upon the happening of the ('vent whieh shall entitle the holder or assignee of said policy or other person or persons thereunto entitled to demand and receive payment of said sum; and whereas, further, the said polley numbered 186....05 does, by its terms. mature and become payable on the 17th day of April, 18tl9: Kow, therefore, it is further agreed, In cOl:sideration of the premises and matters hereinbefore ree!ted and set forth. and In consideration of the faithful performance by the party of the first part of the tLings hereinbefore by him undertaken to be kept and performed, that If the said party of the second part shall surYlve until the 17th day of April, lSHtl, that then, in that event, and upon the payment of the amount of money called for and then to b-eeome due under said pollcy numb,'rpd 186,405, the said party of the first part, his heirs 01' assigns. shall he eutitled to and shall reeeiYe and be pnid out of the proceeds of polley nuruberpd 18H,405 the full sum of $15.000 in cash, and he, the said party of the part, Is herehy nutho('ized and empowered to demanll, sue for. and cui eet out of the prot'peds of the said p0liey numbered 181i.405 the said sum of $15,000, and in the event of the said party of the second part surViving until tlIe said 17th (lny of April, umn, and in the further eVPIlt of the party of the firRt part reepiYing out of the pr()('cpds of the poliey numbered 18fiA05, llpDn the· of said policy. the Raid sum of :!'lii.OOO, it is agreed that the party of the first part shall nRRigIl and rptmllsfer unto the said party of the second' part til(' said poliey numbered fili:l':--:8U, and upon the rpassignment of the, said porir'y to said party of the pnrt the of the first part the linhility of the of the first part for the of further prem'ums on said polley shall tpn and there cpase and terminate. And wher. as, first party now holds an assignment of said polley number 186.405. it is agreed that if party of the part dies before the maturity of said polley the party of the first part will, on reeeipt of $15,OI)() (under either of the polkies IWJ"ein mentioned), to the legal relJreRentatives of seeond party the saiii polley number It1ti,405, subject, howeYer, to provisions of contrnct between parties dated (lct. 2!.lth, IS!J4. 'iYitness the hands of the parties this. 21st day. of :\larch" 18\)5, and executed this In duplicate. "[Signed] A. G. Hubbard. "Geo. W. Meade,"
88 FEDERAL REPOn:fE:tt
Appepded to said agreement was the following writing, to wit:
"I. Anna Meade, wife ot Geo. W. Meade. hereby certlfy and show that I have read the foregoing agreement. and am fully conversant with the terms, force. and effect of the same. and that the same meets my approval. and I herehy relinquish and release unto the said' A. G. Hilbhard all Interest of any kind, class, or description which I now have or could hereafter have as an heir at law ofGeo. W. Meade. or other interest which I mayor could have In the sum of $15,000.00, which would be payable under the policy of insurancementioned In said agreement as 665,889, on the death of said George W. Meade; and In anticipation of the payment of said Bum on the death of said' GPO. W. Meade, I hereby assign and transfer unto the said A. G. Hubbard, the party of the first part In the said agreement named, all right and interest which I now have' or might hereafter have under and by virtue of said polley of Insurance. Witness my hand this 21st day of March, A. D. 1895. "[Signed] Anna Meade. "Anna Meade, "By Geo. W. Meade, "Her Atty. In Fact."
George W. Meade died January 1, 1897, at the city of Los Angeles, Ca1., leaving said two policies in full force and effect. Afterwards Hubbard brought the common-law action already mentioned to recover the $15,000 due on said policy 665,889. The insurance company appeared in said action, admitting its liability for the amount named, but alleging that defendants Anna Meade, Sarah J. Turner, and Dr. Turner, her husband, and complaiIiant, as assignee in insolvency of said George W. Meade, respectively claimed interests in said policy, and asking that it be permitted to pay said $15,000 into said court, and that the persons above named be substituted as defendants in place of itself. On June 1, 1897, the order asked for by said company was made, and thereupon said company paid said $15,000 into court, and the persons above named were duly brought in and substituted as defendants in said action. There is now pending in the superior court of the county of Los Angeles, Cal., an action-No. 59,344-entitled "The New York Life Insuranc,e Company, a Corporation, Plaintiff, v. Anthony G. Hubbard, Anna Meade, Sarah J. Turner, and Margaret M. Cross, Defendants." The complaint in said action alleges the issuance of said policy No. 186,405 for $20,000, the death of said George W. Meade, that said company is willing to pay said amount to whoever may be entitled thereto, that the parties named as defendants respectively claim aMerse interests in said policy, and that said company is ready and offers to deposit said sum of $20,000 in court, or pay' the same to such person or persons as the court may direct, and prays that the persons named as defendants be required to interplead concerning their respective claims. Said company has not paid said $20,000 into court in said action, but its attorneys have the amount in their hands ready to deposit when the company is ordered to do so by said court. The bill in this court sets forth the conflicting claims of the various parties as follOtys:
an interest in both of said policies, or that he holds both of said policies as security for moneys advanced by him to said George W. Meade and the said
A. G. Hubbard claims to be the owner of both of said policles, or that he has
'''rLat your orator has been'Informed and bl:llieves, and so states, that said
WIDAMAN V. HUBBARD.
Annll Meade, or to one or both of them, but that the exact nature of the claim and contention of the said Hubbard as to his respective rights under said policies, and each of them, is unknown to your orator. That the claim of the said Hubbard as to an interest in said policy NQ. 665,889, or to the proceeds thereof, is hostile and antagonistic to the equitable rights of your orator to said policy and to the proceeds thereof, and your orator ill advised and believes, and so states, that the said Hubbard's said claim or claims to the proceeds of said policy is without right in equity and good conscience, and that, if be, is entitled to be reimbursed for any advances made to George W. Meade and Anna Meade, that it is a right to be reimbursed therefor out of the proceeds of said policy N'o. 186,405, and that If he has a right to be reimbursed out of the proceeds of said policy No. 665,889 it is only after he shall have failed to be reimbursed out of said poIlcy No. 186,405. That your orator haa been informed and believes, and so states, that the other defendants in thlll action claim to be the owners of and entitled to the proceeds of said polley No. 186,405, and claim that if the said Hubbard is entitled to be reimbursed for any advances made to George 'V. Meade and Anna Meade, or to one or both of them, that said reimbursement should be made in the first Instance from the proceeds of said policy No. 665,889; that the exact claim or claim. of the said defendants and each of them to the proceeds of said poUcy 186,405 is unknown to your orator, but their said claim or claims to have any advances made by the said Hubbard to George W. Meade and Anna Meade, or to either of them, paid out of the proceeds of policy No. 665,889, before the proceeds of said policy No. 186,405 is liable therefor, is hostile and antagonistic to the rights of your orator, and is without equity and right, and against good conscience. your orator claims that he, as assignee of the estate of George W. Meade, is the equitable owner of the proceeds of said policy No. 6H5,SS9, and that said Hubbard holds the legal title thereto In trust for your orator. That said Hubbard is not entitled to any of the proceeds of the said policy No. 665,889, or, if your orator is wrongly advised or is mistaken on that point, that then your orator is advised and believes, and so states, that if he has a lien on said proceeds for any such advances, it is secondary to his lien on the proceeds' of said policy N'o. 186,405, and should be paid out of such proceeds first. Your orator further states that he is advised and believes, and so charges, that if he is compelled to pay any such advances so made by said Hubbard out of the proceeds of said policy No. 665,889, that then, under the contract set out herein of date the 21st of March. 1895, between said Hubbard and said George W. Meade, assented to and ratified by said Anna Meade, he is entitled to have said polley No. 186,405 transferred and assigned to him, and to hold the same until he shall be reimbursed therefrom for all sums that he may have to pay said Hubbard out of the proceeds of said policy No. 665,889. Your orator is advised and believes. and so states, that though he is a party to said suit No. 741, now pending on the law side of this court, that his rights are of an eqUitable character. and are dependent upon the rules and principles of equity for their protection and enforcement, and that this court in said action is without jurisdiction to administer the rights and equity that your orator Is entitled to in the premises, and, that your orator is without a full, perfect, and clear remedy in the matters involved in this controversy, save in a court of equity. Your orator further states that he is advised and believes that the rights of all the parties interested in said two policies and that are parties to said action No. 741 and said action No. 59,344 are so intermingled and blended that they can only be adjudicated and administered in a court of equity. and in one suit."
The prayer of the bill is that the defendants be required to set forth their respective claims to said property, and that the same be determined, and that further proceedings in the common-law action be enjoined. A demurrer to the bill has been interposed, on the following grounds, to wit: First, that this court has no jurisdiction of the cause, inasmuch as the bill does not show diverse citizenship of the parties; second, that the bill does not state a case for equitable
88 FEDERAL RlllPORTER.
l·elief.Thesegrounds will be in the order in which I have stated them. 1. The bill is ancillary to the common-law action, and therefore the court has jurisdiction of the suit without regard to the citizenship of the parties. Krippendorf v. Hyde, 110 U. S. 276, 4; Sup. Ct. 27; Johnson v. Christian, 125 U. S. 643, 8 Sup. Ct. 989, 1135; Root v. Woolworth, 150 U. S. 401, 14 Sup. Ct. 136; Broadis v. Broadis, 86 Fed. 951. 2. 'l'he next question to be considered is whether or not the bill shows any ground for equitable relief. Plaintiff in the common-law action, A. G. Hubbard, holds, by assignment, the policy therein sued on; not, perhaps, in absolute ownership, but as collateral security for a loan to the assured of $3,690, and for other moneys advanced in payment of premiums on said policy. If the validity of said assignment be tested by the laws of the state where it was made,California,-then the question is covered by statutory enactment. Section 2764 of the Civil Code of said state is as follows:
"A policy of insurance upon life or health may pass by transfer, will, or succession to any person, wlJether he has an Insurable interest or not, and such person may recover upon It Whatever the Insured might have recovered."
See, also, Gilman v. Curtis, 66 Cal. 116, 4 Pac. 1094; Curtiss v. Insurance Co., 90 Cal. 245, 27 Pac. 211; Works v. 105 Cal. 467, 38 Pac. 1109; Diggins v. Hartshorne, 108 Cal. 154, 41 Pac. 283; Wetmore v. City of San Francisco, 44 Cal. 294. Independently, however, of any statute, I am satisfied that there is no such wagering element in the assignment to Hubbard as invali· dates it, and the law has been so declared by the supreme court of the United States in one of the cases cited by complainant himself, wherein it is said:
"Although the agreement between the trust association and the aSRured was invalid as far as It provided for an absolute transfer of nine-tenths of the proeeeds of the policy upon the conditions named, it was not of that fraudulent kind with l'espect to which the courts regard the parties as alike .culpable and refuse to Interfere with the I'esuits of their action. No fmull or -deception upon anyone was designed by the agreement, nor did Its execution qnvolve any moral turpitude. It Is one which must be treated as creating DO legal right to the proceeds of the policy beyond the sums advanced upon its security, and the courts will therefore hold the reeipient of the moneys beyond those sums to account to the represeutatives of the deceased. It was lawful for the association to advance to the assured the sums. payable to the insurance company on the policy as they became due. It was also lawful for the assured to a.ssign the policy as security for their payment. The assignment was only invalid as a transfer of the proceeds of the policy beyoud what was required to refund those sums, with interest." Warnock v. Davis, 104 U. S. 775.
See, also, Cammack v. Lewis, 15 Wall. 643; Burroughs v. Assurance Co., 97 Mass. 359;2 May, Ins. (3d Ed.) 393. From the last author· ity I quote the following:
"The right to sue, however, under these statutes, enacted in the interest of the family support, Is not to be confounded with the right to appropriate and use the proceeds. The assignee may well have the right to sue in hilt own name, and recover the amount payable by the policy. but he recovers to hold in trust ,for the beneficiaries. 'The rights of the child,' Bay the court, In Burroughs v Assurance Co., 'cannot be set up to defeat this action. No
trustee has ever been appointed to hold and manage the Interest of the wife. 'l'he assignments to the plaintiff, assented to by the insurers, transferred to him the legal title lu the policies, and the right to sue thereon. Palmer v. Merrill, 6 Cush. 288, note; Kingsley v. Insurance Co., 8 Cush. 393. If the assUl'ed had afterwards died, leaving no wife or child surviving, the assignments would iJa I'e entitled the assignee to receive the whole amount of the policies to iJis own use. 'rhe plaintiff, having the legal title, may maintain this a etiotl at la w. and, if he recovers jud gment, will hold the proceeds, so far as they inme to the benefit of the child of the assured, in trust for him. The equitable rights of the child under the statute, and the extent to which they lIlay be subject to a claim of the assignee for reimbursement of the sums paid by him for premiums and assessments or otherwise, cannot be now determined, but may ue ascertained upon a bill of interpleader filed by the InSllrance company, 01' in a suit by the child against this plaintiff after he shall have recovered judgment In this action.' "
'['be rights of the assignee have been clearly stated thus:
"The use as collateral security of Insurance policies upon bona fide loana vests in the pledgee the legal title, as upon an absolute assignment. Receiving such title, he may enforce the security to Its full amount, holding any surplns after payment of his advances, premiums, and assessmt'nts paid for the pledgor or persons equitably entitled thereto." Coleb. Coil. Sec. p. 575.
If this be a correct statement of the law,-and I have no doubt but that it is,-it follows that a beneficiary cannot interfere with the progress of an adion brought by thp holder of the legal title, or the person vested with the right to collect, unless fraud or insolvency be charged against such trustee. 1'101' does the fact that in the present case the insurance company has deposited the money in court at all impair' the rights of the trustee, or' enlarge those of the beneficiaries. It is true that the inslll'Hnce company, had it seen proper to do so, might, for its own protection, hm'e exhibited a bill of interpleader against the different c;aimants (Spring v. Insurance Co., 8 Wheat. 2(8), but it could not, by depositing the money in court, give to the equitable claimants any rights which they did not before possess, nor take from II ubbard his right to collect the fund, and apply the same, so far as necessal'Y, to the satisfaction of his debt. On this point, counsel for Hubbard, in his brief, well says:
··Certainly. if the possef<sor of a residuary intert'st has no right to control the col!pcUon, that right cannot be extended to him by the debtor, directly or indirt'ctly"
There is another' difficulty to any relief in the present suit, and this difficulty is emphasized in complainant's brief, where he says:
"Our contention is that the bill and contract and proposal of contract between Hubbard and the Meades, St't out and made exhibits to the bill, show that Hubbard held two policies on the life of Mr. :\feade; that he held the said polkies as sl'curityfor moneys advUlJcpd and to be advanced by him to tllC'm; th:,t till' period fixed for the cel"tain repayml'nt of said advances was the expiration of the tontine period of the first policy assigned to him. It was estimated by the parties that the advances made and to be made, with a certain rate of interest, would amount to $15,000 at the expira;lon of the tontine period; that when the tontine period arrived he was to cdlect the proceeds of said first policy, and repay himself the $15,O(J0, and then reassign the second policy, Ko. 665.889, for $15,000 to }Ieade. We contend that this sllovvs that the proceeds of the first policy are the primary fund out of whlclJ the payment of the advancements are to be made. 'rhe bill shows that the insurance company makes no contest as to either fund; that it has paid $15,000, tht! proceeds of the second policy into this court; that it bas
88 FEBERAL REPORTER.
Its bl,ll of Interpleader In the Oalifornla state court, tendering and offerIng to 'pay the proceeds thereot into coutt; that the proceeds of both policies are vIrtu.lI1ly in' the hands of under the control of Hubbard, and that the ouly\}uestlon to be litigated'and settled is as to whom he shall pay them out to and 'how.. We contend that'under the coJitraets set out In and exhibited with' the blll that he should 'first pay himself such sums as he has advanced to the Meades out of the primary fund that he holds as security, to wit, the proceeds of the $20,000 policy; that the balance he stlould pay to Mrs. Meade or' her successor In: interest, Mrs. 'Cross, and that he should pay over the 'rhole of proceeds of the '$15,000 pollcy to plalntiff as the legal representatIve of Meade, and the equitable owner thereof,"
NOW,ifit be conceded-which, however, I do not decide-that the :proceeds of the $20,000 policy 'were contemplated by the parties to the contracts hereinbefore mentionell'as the primary fund out of which Hubbard should be paid, still complainant's argument is unsound, for the reason that Hubbard hasn.ot yet realized on that policy. Its pay· ment is suspended, at the instance of the insurance company, by a ,bill of interpl'eader pending in the state court. If Hubbard should fail, withOut fault on his' part, ,to realize on said policy, he could un· questionably, and according to complainant's own theory, resort to the $15,000: policy, since he holds both policies as collaterals. How is it possible to make a decree in the present suit fully covering these equities, ,wben this court has no control Whatever over the $20,000 policy or its proceeds? Taking the most favorable view of the case for complainant which the allegations of his bill will allow, Hubbard holds the policy sued on in the common-law action as collateral se· cUrity for lawful advances made by him to the Meades, and it is his right and duty to forthwith collect the amount due on said policy, ap· 'plying a sufficiency of the proceeds to the payment of his own debt, and holding the balance for the parties equitably entitled thereto. "ShOllld he fail to pay over such balance, said parties will then have adequate remedies against him.' The demurrer will be sustained.
PREFERRED ACC. IKS. CO., OF NEW YORK, v. BARKER. (Circuit Court at Appeals, Fifth Circuit. April 12, 1898.) No. 686.
JURISDICTION OF FEDERAL COURTS-AVERMENTS OF CITIZENSHIP-AMENDMENT ON ApPEAl,:
A petition which avers the residence at the parties only cannot be amended on appeal so as to show citizenship; but the judgment may be reversed, and the cause remanded, with Instructions to dismiss the SUit, unless, by proper amendment below, diverse citizenship is made to appear. l
In Error to the Circuit Court of the United States for the Eastern District of Louisiana. .
This was an action at law brought by Harriet Barker against the Preferred Accident Insurance COll1pany, of New York, to recover on a polley of accident insurance. In the circuit court, verdict and judgment were given for plalntlfl', and the defendant sued out thIs wrIt of error. The case Is heard here on mol As to "Necessity for Averment of CItizenship," see note to Shipp v. Wllliama, 10 C. C. A·. 261, and supplementary Dote to Mason v. DuIlagham, 27 C. O. A.. 803.