U.S. Supreme Court Spring v. South Carolina Insurance Company, 21 U.S. 8 Wheat. 268 268 (1823)
Spring v. South Carolina Insurance Company
21 U.S. (8 Wheat.) 268
APPEAL FROM THE CIRCUIT
COURT OF SOUTH CAROLINA
An insolvent debtor has a right to prefer one creditor to another in payment by an assignment bona fide made, and no subsequent attachment or subsequently acquired lien will avoid the assignment.
Such an assignment may include choses in action, as a policy of insurance, and will entitle the assignee to receive from the underwriters the amount insured in case of a loss. It is not necessary that the assignment should be accompanied by an actual delivery of the policy.
Upon a bill of interpleader filed by underwriters against the different creditors of an insolvent debtor, claiming the fund proceeding from an insurance made for account of the debtor, some on the ground of special liens and others under the assignment, the rights of the respective parties will be determined. But on such a bill, those of the co-defendants who fail in establishing any right to the fund are not entitled to an account from the defendant whose claims are allowed of the amount and origin of those claims.
On a bill of interpleader, the plaintiffs are in general entitled to their costs out of the fund. Where the money is not brought into court, they must pay interest upon it.
An insurance broker is entitled to a lien on the policy for premiums paid by him on account of his principal, and though he parts with the possession, if the policy afterwards comes into his hands again, his lien is revived unless the manner of his parting with it manifests his intention to abandon the lien. In such a case, an intermediate assignee takes cum onere.
But in the case of other liens acquired on the policy, if it be assigned bona fide for a valuable consideration while out of the possession of the person acquiring the lien, and afterwards return into his hands, the lien does not revive as against the assignee.
Evidence that a subscribing witness to a deed had been diligently inquired after, having gone to sea and been absent for four years without having been heard from, is sufficient to let in secondary proof of his handwriting.
This was a bill of interpleader filed by the South Carolina Insurance Company in the court below on 25 April, 1816, against the appellants and Gray & Pindar, William Lindsay, and John Haslett, praying that they might file their answers and interplead so that it might be determined to whom the proceeds of a certain policy of insurance should be paid. It appeared by the pleadings and the evidence in the cause that this policy had been made on 6 May, 1811, by the respondents, the South Carolina Insurance Company, upon a vessel called the Abigail Ann, then lying at Savannah, on a voyage to Dublin or a port in St. George's Channel for account of John H. Dearborne and the respondents, Gray & Pindar, the latter of whom were merchants residing at Charleston, South Carolina, and at that time part owners of the ship, but on 27 May, 1811, sold their interest therein
to Dearborne. On 5 July, 1811, the vessel sailed on the voyage insured. It appeared that the respondent, Lindsay, as the agent of the parties, had procured this policy to be underwritten. It also appeared that Lindsay had delivered the policy to Gray & Pindar, for the use of Gray & Pindar and Dearborne, without at the same time expressly claiming any lien upon it.
After the sailing of the Abigail Ann, Dearborne and Gray & Pindar jointly purchased and loaded another ship called the Levi Dearborne, of which vessel and cargo Dearborne owned two-thirds and Gray & Pindar one-third. In September, 1811, this vessel sailed from Savannah for Europe, and Dearborne went in her. Before sailing, D. had drawn bills on England, some of which were endorsed and negotiated by Lindsay, which were returned protested for nonacceptance, and Lindsay was compelled to pay them. Haslett also made advances to Dearborne and took his bills on England, secured by a bottomry bond on the ship Levi Dearborne. These bills also returned protested.
Before Dearborne left Savannah, certain misunderstanding arose between him and Gray & Pindar which it was agreed should be referred to arbitrators. On 21 September, 1811, the arbitrators and one Harford, as umpire, awarded that Gray & Pindar should execute a bill of sale of the ship Abigail Ann to Dearborne and deliver to him the policy of insurance thereon without unnecessary delay. Before he sailed, Dearborne directed Harford to transmit to his wife, in the
District of Maine, to the care of Seth Spring & Sons, the bill of sale and policy of insurance which had been thus awarded to him. The policy was subsequently sent by Harford to Lindsay, to be put in suit against the South Carolina Insurance Company.
The ship Levi Dearborne was obliged to put into New York by stress of weather, and there Dearborne, on 28 October, 1811, made an assignment of the Abigail Ann and of his interest in the ship Levi Dearborne and of the policies upon both vessels, to S. Spring & Sons, to secure the payment of a debt due by Dearborne to them, amounting to about $16,000. The handwriting of Dearborne and of the subscribing witness to the deed of assignment were both proved, and one Maria Teubner, who testified to that of the subscribing witness, swore that she was one of his creditors and had taken pains to obtain information of where he was, but without success. The last account of him was that he had entered on board of an American privateer during the last war, and had not been heard of for four years. The assignment was made subject to pay out of the cargo of the Abigail Ann, if it reached the hands of his correspondents in England, certain bills which he had drawn on them in the confidence that they would be paid out of the cargo of the Levi Dearborne. Nothing was realized from that vessel and cargo, and the Abigail Ann was lost at sea. An action was brought upon the policy on the Abigail Ann in the names of Dearborne and Gray & Pindar
against the South Carolina Insurance Company, and judgment obtained against the latter in 1815 for the sum of $9,800. Dearborne died in March, 1813. On 24 February, 1812, Lindsay, on the return of the bills endorsed by him, issued an attachment under the laws of South Carolina against Dearborne, who was then absent from that state, and served a copy upon the South Carolina Insurance Company. On 21 May, 1812, Haslett also issued an attachment against Dearborne and served a copy on the South Carolina Insurance Company. No appearance was entered for Dearborne in these attachment suits, and judgment was obtained on Lindsay's on 19 April, 1813, and on Haslett's on 10 June, 1815.
At the hearing in the court below, after the depositions and regularly proved exhibits in the cause had been read, an order signed by Harford, as agent for Dearborne, and S. Spring & Sons, on Lindsay, in favor of Haslett, was read in evidence, without notice to the appellants, or an order for its being read at the hearing.
The circuit court decreed that the demand of Lindsay should be first satisfied and paid out of the fund; that of Gray & Pindar next; that of S. Spring & Sons next; that Haslett was entitled to the surplus, if any; and that S. Spring & Sons should account and prove their claims against Dearborne either by filing a cross-bill or by answering upon interrogatories.
From this decree an appeal was taken by S. Spring & Company to this Court.
MR. JUSTICE LIVINGSTON delivered the opinion of the Court, and after stating the case, proceeded as follows:
In reviewing these proceedings, the first question necessary to decide is to whom the policy mentioned in the complainant's bill belonged at the time of commencing the action on it. It does not appear that the names of the parties interested in the Abigail Ann were disclosed to the Company at the time of applying for insurance, or that their names were inserted in the policy. There is, however, no doubt that when it was effected, Gray & Pindar, and John H. Dearborne were the owners, but in what proportions does not appear, nor is it material now to be known, for whatever interest was held by Gray & Pindar was regularly transferred to Dearborne by their bill of sale dated 27 May, 1811. This bill of sale is for the whole ship, and its consideration is $5,000. Sometime after in the same year, Gray & Pindar delivered to Henry Harford, as agent of Dearborne, the policy of insurance which had been made on it. Dearborne being thus sole proprietor of the Abigail Ann and policy, on 28 October, 1811, executed a bill of sale for the vessel, containing an assignment also of the policy for valuable consideration to John Spring, of the firm of Seth Spring & Sons. Some objections were made to the proof of the execution of the instrument, but
they were not listened to below, nor are they regarded as well founded by this Court. The proof was such as is required where a party to a deed and the subscribing witness are both dead. The handwriting of both was proved, and Maria Teubner, who testified to that of the witness, left no reasonable ground to doubt of his death. She was a creditor of this witness, and had taken some pains to obtain information where he was, but without success; her last account of him was that he had entered on board an American privateer, and had not been heard of for four years. The credit of this witness, although the subject of some animadversion, is not impeached by any testimony in the cause or by anything which she herself has testified. It follows, then, that on 28 October, 1811, Seth Spring & Sons became proprietors of the ship Abigail Ann, and of the policy mentioned in these pleadings, and prima facie entitled to the whole of the moneys recovered on it, although the policy itself was not at the time put into their hands. Our next inquiry will be whether any of the other parties who are now before us have a lien on it or any other title to these moneys or to any part of them.
The claim of Haslett may be considered as out of the question, it having been postponed by the circuit court to that of the appellants and there being no appeal from this part of the decree.
Lindsay's demand will first be examined. This is made up of the premium paid for effecting the insurance -- of an indemnity claimed by him for
endorsing two bills of exchange for Dearborne amounting to 400 pounds sterling, and for having become his bail -- of the customary commissions for his trouble and attention in conducting the suit against the underwriters, and of the amount of a judgment which he obtained on 19 April, 1813, against Dearborne, on an attachment issued out of the Common Pleas for the District of Charleston, and which had been served on the complainants. This attachment was sued out on 24 February, 1812.
No evidence is perceived in the proceedings in support of any one of these claims except that which is founded on the judgment in the attachment. In his answer, Lindsay says that the policy was effected on his application, but nowhere pretends or alleges that he paid the premium for insuring the Abigail Ann, nor is there any proof aliunde of this fact. On the contrary, Gray & Pindar, in their answer, expressly state that it was paid by them, and was probably allowed in their account against Dearborne, in making up the award hereinafter mentioned. Haslett, in his answer, asserts that it was advanced by him. Now although the answer of one defendant be no evidence against another, yet in the absence of all proof to the contrary, and where a party observes a profound silence on a subject to which his attention could not but be excited, such answer, not varying from any allegation on his part, furnishes some evidence that he could not make the assertion, because the fact was, in reality, otherwise.
If this fact of the payment of the premium had been made out, the court would have been disposed to award Mr. Lindsay payment out of the proceeds of the policy, for although he had once parted with it, yet, coming to his hands again, to be put in suit, his lien for the premium would revive and be protected unless the manner of his parting with it had manifested an intention in him altogether to abandon such lien. His claim for a commission for conducting the suit against the underwriters is inadmissible, it appearing from the testimony of Harford, who transmitted the policy to him, and who is the only witness on this subject, that he has no right to make any such charge. Harford considers himself entitled to this commission, and has accordingly charged it to Dearborne in an account annexed to his deposition. Now as this is the witness on whom all the defendants except Seth Spring & Sons principally rely, they cannot complain if his testimony, when unfavorable, is allowed its full operation against them. It is evident, then, from the declaration of this witness that he considered himself as the merchant who was prosecuting the suit, and that Mr. Lindsay was only employed to deliver the policy to a professional gentleman to bring the action. There is another obstacle in the way of this claim, which is that Lindsay, in the business of this suit, acted, as Harford himself says, as his (Harford's) agent. Now there is not only no evidence of Harford himself being authorized by the owners of this policy to bring any action on its, but it appears that his detention of it was a violation of duty,
and that the action he brought was more to answer his own purposes and those of the other defendants than to advance the interest of those whom he knew at the time to be assignees of the policy. In this state of things, nothing would be more unjust than to permit this fund to be encumbered, as against Seth Spring & Sons, with the heavy charge of 5 percentum in favor of any one of the parties who, throughout the whole business, have had in view exclusively their own interest and were acting in open hostility to those from whom they now demand this compensation. With what propriety can they now claim a commission from these gentlemen, when it is entirely or principally owing to their interference that they have not to this day received any benefit from a judgment which was recovered for their use nearly eight years ago?
Lindsay's claim to receive any part of this fund, on account of the two bills of exchange for 200 pounds each, is equally unfounded. That he would have had a lien on the policy for this transaction, without an express contract (and none appears), even if he had never parted with its possession, is a proposition which may well be controverted, but if such lien ever existed (which is not asserted), it is not like that for the premium advanced for an insurance; the latter may well revive in some cases on a broker's being restored to the possession of a policy, which had once been out of his hands, it being no more than reasonable that whoever acquires an interest in it should generally take it subject to such a charge. It
does not, however, follow that liens which may once have existed for other advances or on other accounts, whether by agreement of the parties or by the operation of usage or of law, should be placed on the same favored footing. If, while a policy is out of the hands of the insurance broker, as was the case here, it is assigned for valuable consideration and bona fide, it would be unjust, on its returning to his possession, to revive encumbrances of which the assignee could have had no notice nor no certain means of finding out, for he could not reasonably suspect that such liens had ever existed in favor of one who had parted with the possession of the only thing by which they could have been enforced. Nor can it make any difference whether the policy had been actually delivered to the assignee, provided the transfer were bona fide made, while out of the possession and power of the insurance broker. Upon the same principle it is that a consignor loses his right to stop goods in transitu, although the consignee have become insolvent, after such consignee, having power to sell, has disposed of them before their arrival to a third person unacquainted with any circumstance to taint the fairness of the transaction.
The next charge which Lindsay attempts to fix upon this fund is an indemnification for becoming bail for Dearborne. Now if a responsibility so contingent and remote as one of this nature could by any possibility, without a very positive and express agreement, be turned into a lien on a policy of insurance, it does not appear in what suits he
has thus become bail, nor whether he has not been released by the death of the principal of all liability; and of course any demand arising from such responsibility, if any ever existed, must be laid out of the question. And the answer which has already been given to his claim for endorsing certain bills of exchange will also apply here.
The judgment obtained in the attachment suit may be as easily disposed of. It is quite unnecessary to inquire whether these proceedings abated by the death of Dearborne if he were dead at the time, for at the time of issuing the attachment, and of course long before judgment, Dearborne ceased to have any interest in this policy, the same having been already assigned to John Spring, of the firm of Seth Spring & Sons. No attachment, therefore, against Dearborne, although served on the Company, could render the property of another liable for his debts. The attachment of Lindsay, it may incidentally be observed, furnishes some proof that he had no great confidence in the liens which he now asserts against this policy.
The title of Gray & Pindar remains to be examined. By their answer they claim five hundred and two dollars as the premium paid for insurance on the Abigail Ann, and fifty dollars paid as a commission for effecting the same. They likewise state that large advances were made by them between 5 April and 7 August, 1811, on account of the said ship, her cargo, pilotage, and repairs, and they also, it seems, became the bail of Dearborne in two several actions, amounting
to one thousand dollars, which they have since become liable to pay; they were also endorsers of the two bills of exchange which were endorsed by Lindsay. After stating all these demands, they say, that upon closing the account between Dearborne and themselves, there was a balance in their favor of $1,430.16, for which Dearborne gave them a bill of exchange on Logan, Lenon & Co., of Liverpool; that feeling uneasy and insecure from the responsibility resting on them, and aware that they could be indemnified only by a specific lien, they would not deliver to Dearborne the policy, but put it for safekeeping into the hands of their friend, Henry Harford, for the express and avowed purpose of protecting them against all losses on the accounts aforesaid, the said policy being also intended as a security for certain debts due by Dearborne to Harford. Now without looking any further than the answer of these gentlemen, it is most manifest that none of the demands or responsibilities which are stated in it were contracted or entered into under any agreement or understanding with Dearborne himself, as Harford would have us believe that they should be secured by a lien on this policy, but that such lien is set up solely on the ground of a subsequent understanding between them and Harford, to whom it was delivered for the purpose of protecting them against loss. To derive any benefit from such a delivery, or such an assent on the part of Harford, it should appear (which is not the case) that they had a right to exact, and Harford a right to accept, of
the policy on these terms.
Unfortunately for these gentlemen, the testimony of their friend and witness, Mr. Harford, most incontestably establishes that they were bound by the decision of persons of their own choice, of whom Harford himself was one, to deliver the policy without annexing to such an act any condition or terms whatever, and also that the authority of Harford extended only to its receipt and transmission to Mrs. Dearborne, the wife of Mr. John H. Dearborne. On 21 September, 1811, which is subsequent to all their advances, endorsements, and engagements for John H. Dearborne, he and Gray & Pindar submitted all their controversies to two arbitrators, who, in conjunction with Harford as umpire, awarded that Gray & Pindar should pay to Dearborne $66.77, and surrender to him the policy on the Abigail Ann without unnecessary delay. Now this award could not have been signed by Harford if he knew of any lien to which Gray & Pindar were entitled on this policy. It was said that no notice could be taken of this award; but coming as it does from a witness of the party, who was himself umpire, and not being impeached, this Court cannot without injustice shut its eyes upon it. If a bill for its specific performance might have been entertained, which was not denied, what higher or better evidence can the court have of the rights of the respective parties, at the time of the transactions referred to in the answer of Gray & Pindar? If judges of their own selection have directed them, as they had a right to do, to surrender
this policy without delay and unconditionally to Dearborne, this Court must now presume (and it is a presumption with which neither Gray & Pindar, nor Harford, can be justly offended) that the policy was delivered to the latter pursuant to the award, and if not, that any condition with which they thought proper to accompany such delivery, if not a breach of the arbitration bond, would at least be a trespass on good faith, and that no assent or understanding on the part of Harford, who was without authority for this purpose, could confer any validity or give any sanction to such an act. This award is also of importance to show how entirely mistaken Gray & Pindar are in supposing Dearborne, at the time they speak of, so largely in their debt, when it appears by this instrument that the balance, although not a large one, was in his favor.
As to Harford's power, it appears from his own letters that he had no other authority than to transmit the policy, when received, to the family of Dearborne. Accordingly, in a letter to Seth Spring & Sons of 26 September, 1811, he transmits, for Mrs. Dearborne, the bill of sale for the Abigail Ann. And in another letter of 3 November following, to the same gentlemen, he apologizes for not sending on the policy, as it had not yet been received from Charleston. After this unequivocal evidence of what was his authority over this policy, it becomes quite unimportant to inquire what agreements he may have made, or what orders he gave Lindsay respecting the proceeds of it. It is not too much
to say, that the one of 13 May, 1813, in favor of Haslett, by which the whole proceeds, after Lindsay's retaining for himself his legal claim and expenses, was a palpable violation of duty, or breach of instruction, towards Dearborne; and it was properly said by the circuit court, "that to vest any interest, hostile to that of Seth Spring & Sons, was certainly not in his power." Gray & Pindar having been originally interested in this ship and policy, on which there was some reliance by their counsel, places them, as it regards a lien, in a condition less favorable than if such ownership had never existed, for by such overt acts, as the execution of a bill of sale of the vessel, and a delivery of the policy, pursuant to the award, to the agent of Dearborne, they have done all in their power to inform the world that they had no claim on either for any demands against Dearborne.
There is error also, in that part of the decree, which directs Seth Spring & Sons to account for their claims on Dearborne. The complainants have no right to an account, and the defendants being called here only to interplead, and having failed to establish any claim on this fund, have as little right to such an account. They cannot, at any rate, require it in the position in which they now stand as co-defendants with Seth Spring & Sons. It is but justice to remark that for aught that appears in the present suit, there is no reason to suspect the integrity of the assignment to Seth Spring & Sons; they appear to be respectable merchants and to have been large creditors of
Dearborne. It is the opinion of this Court that the decree of the circuit court be reversed so far as it postponed the demand of the appellants to those of Lindsay and of Gray & Pindar and directed them to account, and that instead thereof, a decree must be entered in their favor for the whole amount recovered on the policy, with interest (the money not having been brought into court) at the rate of 6 percent per annum, from the time of rendering the judgment, the complainants deducting therefrom their costs of suit. The defendants must pay their own costs.
DECREE. This cause coming on to be heard and being argued by counsel of the respective parties, it is ORDERED, ADJUDGED, and DECREED that the decree of the Circuit Court for the District of South Carolina in this case be and the same is hereby reversed and annulled, and this Court, proceeding to pass such decree as the said circuit court for the District of South Carolina should have passed, doth further ORDER and DECREE that the complainants pay to the defendant, John Spring, of the firm of Seth Spring & Sons, the whole amount of the judgment recovered against them on the policy on the ship
mentioned in the pleadings in this cause, with interest, at the rate of 6 percentum per annum, from the time of rendering such judgment, after deducting therefrom their costs of suit, to be taxed. And it is further ORDERED, ADJUDGED, and DECREED that the defendants in the said circuit court, respectively, pay their own costs.