Desborough v Harris
| Jurisdiction | England & Wales |
| Judgment Date | 04 August 1855 |
| Date | 04 August 1855 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 940
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 3 Eq. R. 1058; 1 Jur. (N. S.), 986; 4 W. R. 2. See Matthew v. Northern Assurance Company, 1879, 9 Ch. D. 84.
[439] dehborouoh v. hakkis. Before the Lord Chancellor Lord Cranworth. July 25, 28, August 1, 4, 1855. [S. C. 3 Eq. R. 1058 ; 1 .Tur. (N. S.), 986 ; 4 W. K. 2. See Matthew v. Northern Assurance Company, 1878, 9 Ch. D. 84.] A life insurance company received notice of an assignment by an insurer of a policy,. which the company had granted, and the insurer afterwards became insolvent. Soon after the death of the person whose life was insured, the assignee for value applied for payment of the sum due upon the policy, and the company inquired of the provisional assignee of the insolvent whether he would consent to payment being made to the assignee for value. The provisional assignee said he could not give such consent, but that it must be sought for from the Court of Insolvent 5 DE a. M. a G. 140. DESBOROUGH 't\ HARRIS 941 Debtors. The insolvent himself gave notice to the company not to pay over the policy monies to his assignee for value, on the ground that the debt for which it was assigned as a security was satisfied. In the meantime an action was brought upon the policy by the assignee for value, in the name of the insolvent, against the company. Held, that it was not a case in which the company were entitled to file their bill of interpleader against the Plaintiff in the action, the insolvent and his provisional assignee, the insolvent having no title, and the title of his provisional assignee being subordinate to that of the assignee for value. The case of Fenn v. Ednumdx, 5 Hare, 314, overruled. This was an appeal by the Defendant Samuel Sturgis, the provisional assignee under the insolvency of the Defendant Francis Harris, from a decree of the Vice-Ghancellor Wood, made on 23d February 1855, upon the hearing of an interpleader sidt. The bill was filed by Henry Desborough, who was the secretary, and as such represented the Atlas Insurance Company. The facts of the case, as detailed in the bill, were in substance as follows :-On the 19th October 1825 the Atlas Company granted a policy, whereby they assured the sum of .3000 to the Defendant Francis Harris, his executors, administrators and assigns, payable within three months after the death of Judith Grubb. On the 17th April 1829 the company received notice of the assignment, by way of mortgage, of the policy to persons represented by the Defendants the Messrs. Sanders, by which mortgage-deed the assignors of Messrs. Sanders were appointed the attornies of Francis Harris, to demand, sue for and recover the policy monies, and the deed empowered them and their assigns to give effectual receipts for the same. In 1834 the Defendant Francis Harris took the [440] benefit of the Insolvent Debtors Act, and by an indenture dated the 18th January 1834 all his real and personal estate were assigned to the Defendant Samuel Sturgis. Judith Grubb died on the 19th January 185.'?, and the policy, with its accumulations by way of bonus, amounted to 452(i. The bill alleged that the Messrs. Sanders insisted that they were entitled to recover the monies due on the policy under certain indentures of assignment by way of mortgage, and that the Defendants Francis Harris and Samuel Sturgis disputed the right of the Messrs. Sanders under the said indentures to the policy, and the monies payable thereunder, and that Samuel Sturgis claimed the policy and monies as such provisional assignee, and that he had refused to consent to the monies due on the policy being paid by the company to the Messrs. Sanders. The bill stated that on the 15th August 1853 the Defendant Francis Harris gave notice in writing to the company that the amount due upon the policy was not to be paid to any individual who was not authorized by letter from him to receive the same ; and that the solicitor of the Defendant Francis Harris had, on the 17th August 1851, written to the company that Francis Harris considered that the amount of the policy belonged to him, and had requested him, the solicitor, to give notice to the company not to pay over the monies due on the policy without his express authority and consent. The bill also stated that on the *28th July 1853 the Defendants the Messrs. Sanders commenced an action in the {Queen's Bench in the name of the Defendant Francis Harris, to recover the amount due under the policy, with interest from the 10th June 1853. The bill alleged that the Defendants Francis Harris and Samuel Sturgis threatened to commence actions against the company to recover the amount due on the policy. The bill then set out the following correspondence with reference to the policy, and the rights and [441] interests of the Defendants therein, between the solicitor of the company and the solicitors or agents of the Defendants Francis Harris and the Defendants the Messrs. Sanders. On the 24th August 1853 Mr. Browning, the solicitor of the company, wrote to Messrs. Rhodes, Lane & Rhodes, who were then acting as the solicitors of the Defendant Francis Harris, as follows:-" Mr. Cummin, of Exeter, professionally concerned for Messrs. Sanders & Co., bankers, of that city, with Mr. Phtlbrick, of Girdler's Hall, have been with me to-day, and stated the result of an interview your Mr. Lane, on behalf of Mr. Francis Harris, had yesterday with them respecting the claim of Messrs. Sanders upon a policy in the Atlas Office for 3000 on the life of Mrs. Judith Grubb, which was assigned to those gentlemen in the year 1825, as 942 DESBOROUGH V. HARRIS 5DE 0. M. * 0. 2. collateral security with an estate in Devonshire for payment of .3750, upon which there was an existing charge of 3000, and to cover which the policy in question was effected. This policy (which by its accumulations has increased to the sum of 4526) has recently become a claim, and before the same was paid I thought it right, on the part of the directors of the Atlas Company, to require the concurrence or consent of Mr. Harris on payment of the amount to Messrs. Sanders under their security. This requisition ultimately led to the interview you had yesterday, and Mr. Cummin and Mr. Philbrick inform me that they presented to you and Mr Harris an account stated as between Messrs. Wanders and Mr. Harris, touching their claim under their security, including the payment of the premiums by Messrs. Sanders since the year 1828 on the policy, and that on the part of Mr. Harris you expressed yourself satisfied that Messrs. Sanders are clearly entitled to receive the full amount now due on the policy, and that neither Mr. [442] Harris nor the official assignee under his insolvency, has any claim upon it. It is the desire of the directors of the Atlas Company to satisfy this claim with the least possible delay, and without giving any trouble and inconvenience to any party, and as soon as they can be satisfied, there is no reason to anticipate any interference or objection by Mr. Harris. Mr. Philbrick told me he had no doubt you would answer any inquiries I might make of you on the matter, and therefore I should bo much obliged if you would acquaint me whether, as far aa Mr. Harris or his estate are concerned, you are satisfied they have no claim on the policy in question. Mr. Philbrick informs me you have a statement of the account referred to, but if not I shall be glad to shew them to you." No answer to such letter was received by Mr. Browning, and on the 7th September 1853 Mr. Philbrick, the town agent of the solicitor of the Defendants the Messrs. Sanders, wrote to Mr. Browning as follows:-Harris v. The Allan Company.-"In consequence of having heard from Mr. Cummin that Harris had been insolvent some years since, I accompanied him to the Court to see the official assignee, and ascertain if he would assent to Sanders & Co. at once receiving the money on the policy, and, after some search, it appearing that Sanders & Co. were inserted in the schedule as creditors for 4500 and interest, he stated that if the company would pay them he would offer no obstacle, but that if the sanction of the Court was obtained, and without which he could not officially consent, the Court would require some part of the money to be held by him for the creditors." On the 13th September 1853 Mr. Harrison, the solicitor of the Defendant Francis Harris, wrote to Mr. [443] Browning as follows:-"Mr. Harris has placed in my hands your letter dated the 24th instant, addressed to Messrs. Khodes, Lane &...
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