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129 Ala. 602

Culver v. Guyer

Supreme Court of Alabama

Decided November 15, 1900

Supreme Court of Alabama · decided 1900-11-15

Heard before tbe Hon. William H. Simpson. Tbe bill in tbis case was filed on March 24, 1898, by tbe appellees, Pascbal A. Guyer, against tbe appellant, D. M. Winton, and averred tbe following facts: Tbe complainant bad taken out a policy of life insurance in tbe New York Life Insurance Company. • Not having tbe money to pay one of tbe premiums, be borrowed tbe sum from tbe defendant Winton, executing bis note tberefor.

Relies on Helmetag's Adm'r v. Miller · Bank of Florence v. United States Savings & Loan Co. · Alabama Gold Life Insurance v. Mobile Mutual Insurance

Good law ✅— No negative treatment on recordhow we know

Decided 1900-11-15

How this case has been cited

Cited by 11 later decisions — most recently March 1942

11 state decisions

4019001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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McOLELLAN, C. J.

¶1The verification of the bill of complaint was sufficient without the subscription of the affiant to the affidavit; the rule of practice not requiring subscription.—Rule 15, Code, p. 1205; 1 Ency. Pl. & Pr. 315; Watts v. Womack, 44 Ala. 605.

¶2The bill being thus properly verified, its averments as to respondent’s insolvency and the imminent danger of his immediately disposing of the trust property before a receiver .could be appointed if he had notice of the application for a receiver, the facts being stated, authorized the appointment of a receiver without notice.—Hendrix v. A. F. L. M. Co., 95 Ala. 313; Werborn v. Kahn, 93 Ala. 201; Pollard v. Southern Fertilizer Co., 122 Ala. 409; Bank of Florence v. U. S. S. & L. Co., 104 Ala. 297; Ashurst v. Lehman, Durr & Co., 86 Ala. 370. We do not consider the question discussed by appellee’s 'Counsel whether an order appointing a receiver can be reviewed on an appeal taken from the final decree after thirty days from the appointment, as it is not necessary to decide it.

¶3That the bill has equity to charge the respondent as trustee for the 'amount he received on the surrender of the policy in excess of the amount he paid the assured for or upon the collateral security of the policy, and this whether the policy was transferred to the respondent absolutely or merely to secure a debt due him from the assured, is fully settled in the case of Helmetag’s, Admr. v. Miller, 76 Ala. 183, which is cited with approval in White v. Equitable Nuptial Benefit Union, 76 Ala. 262-3, in Ala. Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 332, and in Stoelker v. Thornton, 88 Ala. 246.

¶4*608The excess of money received by the respondent on the policy beyond what he paid 'complainant for it or 'beyond the debt which complainant owed him secured by the policy, as the case may he, having been "received by respondent in trust for complainant, it is elementary that complainant can follow the fund • 'into whatever property respondent has converted it, and subject such property. ■

¶5Of course the fact of conversion into other property, and the identity of the other property.'sought to-be subjected with that into which the conversion was made must be proved’ to the reasonable satisfaction of the court; and we concur with the chancellor that a part of the fund here in question was invested by respondent in< the horse now in possession of the receiver and in other live stock which was sold by respondent and for the price of which he took the securities ■ now in the hands of the receiver. ■ •

¶6The decree of the chancery court will, therefore, be affirmed. ■

¶7Affirmed.

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