724 therefore, uniformity in benefits as well as assessments; and neither a subordinate council, or other body or person in the order, can, in their diEcretion, scale a benefit. We have seen that the right to allow a disability claim is with the supreme councilor, supreme recorder, and supreme medical examiner. What, then, is the meaning of the provision of section 8, which requires "all proofs for death or disability benefits shall be approved by the subordinate council to which the c1aiman.t beWe think this provision is directory as to the mode of preparing proClfs for those who are to act upon the claim, and does not give the subordinate council the right to reject the claim itself. I see nothing; in the constitution or laws ofthis order which gives to subordinate councils the right to reject a claim for either a death or disability benefit. Such :l right will never be presumed, but must be given in the clearest and most' explicit terms. Neither do I find anything which makes thejudgment ofa supreme councilor, supreme recorder, and supreme medical examiner upon these benefits final, so as to preclude a claimant from appealing to the courts for redress, if he be otherwise entitled to it. The demurrer to the third paragraph should be sustained.
AULTMAN
et al.
'11. MCCONNELL
et ale
(Oircuit Oourt, 8. D. iowa,
w: D.
Apri120,1888.)
1.
INStrnANCE-AsSIGNMENT OF POLlCY.
When the owner'of an insurance policy, after loss. places the same In the hands of an attorney for collection, with instructions to apply the in payment of his debt to a third person, this does not constitute an assign" ment of the policy to such third person.
2.
SAME-VALIDITY-CHANGE OF POSSESSION-RECOlIDING.
The written assignment of a policy, made by the holder after loss, noticlil of such assignment being served upon the company, and the original holder of the policy retaining possession, is valid as against a subsequent garnish· ment, and need not be recorded as required by Code Iowa, § 1923·.in case of a saie or mortgage of personal pl'Opert,y when the vendor or mortgagor retains possession.
At Law. Stone &: Sim8, for 1JlainHff. Sapp &: PUBey, for SHIRAS, J. In 1886, James McConnell was the owner olastore building in the town ,If Harlan, Iowa, upon which he held a policy of iusur;' in the Pennsylvania Fire Insurance Company, for the sum of $700. Joseph G. Peirce held a mortgage on the property as security for a debt due him from McConnell.. In August, 1886, the premises were destroyed by fire, and on the 11th of that month McConnell executed a written as'signment of the policy to Peirce, as additional security tohhJl; This was not indorsed on the policy, .which waS at the date of the
v.
M'CONNELL.
725
assignment' in McConnell's safe in the ruins of the burned building. Notice of the assignment of the policy was given to the agent of the insurance company. Subsequently McConnell placed this policy with others in the hands of an attorney. with' instructions to collect the policies, and apply the proceeds in payment of a debt due from him to Aultman, Miller & Co., plaintiffs herein. An agent of the plaintiffs visited Harlan for the purpose of settling the account between the firm and McConnell. At that time he endeavored to procure an assignment of the policy in the Pennsylvania Insurance Company, but McConnell refused to sign it, although he did transfer to plaintiffs the other policies on the property. Thereupon plaintiffs brought suit against McConnell by at-tacnment, and garnished the attorney, in whose hands the policy had been placed, and also the agent of the insurance company. The company paid the amount due upon the policy into CouTt, and, JosephG. Peirce having intervened in the action, the question for'determination is, which of the parties, Aultman, Miller & Co., or Joseph G. Peirce, is entitled to the money in the registry of the court. . The evidence fails to Elhow that McConnell in fa at made a legal trans-' fer of the policy of insurance to Aultman, Miller & Co. When the policies were handed to the attorney with instruetions to collect the same and apply the proceeds, the attorney was not in fact acting for the plaintiffs. True, ho had and was acting for Aultman, Miller & Co. in making collections, but it does not appear that he had any authority touching this claim. It was a voluntary act on part of McConnell in handing the policies to him,and the acceptance of them by the attorney did not in any way bind the plaintiffs. If the attorney had the next day presented the policies for payment to the company, and received the money, and had then appropriated it to his own use, or it had been stolen from him, the loss would have fallen on McConnell, and not on the plaintiffs. It must be held that the policy in the hands of the attorney had not been assigned or transferred to the plaintiffs, and the acts of the parties at the time show that such was their understanding. The agent endeavored to procure an assignment of this with the other policies, but McConnell refused to give it. and thereupon a garnishment was served on the attorney. The rights of the pa,rties must therefore be determined by the effect to be given to this garnishment. There can be no question that as between McConnell and Peirce, and as between the latter and the company, the written assignment executed .on thellth day of August conveyed to Peirce the right to demand and receive the money from the company, the lalter having been dulytlOtifiedof the fact of the assignment. On behalf of plaintiffs it is claimed that the assignment to Peirce is invalid as against them, because McConllell retained actual possession of t.he policy of insurance after the assignment thereof, and the written assignment was not placed upon the rec.ords of the county as required by section 1923, Code Iowa, which enacts that "no llale or mortgage of personal property, where the vendor or retains actual possession thereof, is valid against existing .creditors or subsequent purchasers without nutice, unless a written· iIl-
". FED;E;RAL m;:FORTFjIt. .
conveying is executed, acknowledged like Qonveyanees. of real. estate, andfilQd for record with the recorder of the county, wh!'lre the.holder of the pr9perty resides.." The contention between the parties ia whether under this section of the statute, it was the duty of to have obtained actual possession of the policy when the claim was aRsigned to him, or, failing in that, to have placed the assignment .on the records of the county, and this presents the question whether class of personal property inthe proper,ty in dispute belongs to tended to be included within this section. 'fhe statute was intended t(} prevent the perpetration. of frauds by requiring notice of sales or mortgages to be given, either by actual change of possession of the property, or by the recording of the written evidence of the transfer. To come within the statute the property must be of a it can be fairly said to be in possl:)ssion of the vendor Or mortgagor. The real thing ipdispute is the claiD;lin favor of McConnell against the insurance company. . The policy of insurance is not the property, nor is it even the complete evidence of right to the property. When the fire occurred, McCopnell, by showing that he had a contract of insurance with the CO.Qlpany, ,that the property insured had been destroyed by fire during the. life ;of the policy, and that due notice of the fire and proofs of losshad,beengiven the company, would have thereby established his right to ,claim payment from the company. This right to payment was property" bntitwlls in the nature of a chose in action, intangible, incapll-ble of manual delivery or .actual visible possession, and. therefore not withiIl; thp, meaning of section 1923, Code Iowa. The policy by i.tself was neither the property Qor the complete evidence of the claim held by McConnell agaillst the company. If the policy had been burned in the fire, the chose. in action or claim existing in favor of McConnell would not hl\.ve beeXl destroyed, and it is this claim which in fact is the property in dispute between the parties to this litigation. In the case of Howe v. JO'!l£8,57 Iowa, 130, 8 N. W. Rep. 451, and 10 N. W. Rep. 299, the supreme court of Iowa holds that it is not required to record the. assignment of a judgment, as provided in section 1923, on the ground that. the judgment is merely evidence of the chose in action or claim, and does not (wnstitute the property itself, within the meaning of this statute, and that a chose in action cannot be said to be in the present possession of the owner or holder thereof. If a judgment, which in itself is complete evidence of a claim, is not properly within the of section 1923, it is clear that the policy of insurance, which is only part of the evidence necessary to make out the. claim against the company, cannot be deemed to be the property in dispute in this case. The policy itself is of no value. What the parties are seeking to reach, is th,e claim due to McConnellfrom the insurance company. This claim is pot tangible property, and cannot be said to be in the visible or actual p,c>ssession of anyone, within the meaning of section 1923, and the provisions of this section are not applicable to the transfer of this claim. When the writ of garnishment was served upon the attorney and theagent of the company, the claim in 1iwoI:' of McConnell had already been
FARWELL ".MAXWELL.
727
:assigned to Peirce, and notice thereof had been given to the company. McConnell had no longer any interest or right of property in the claim thus assigned, and the garnishment was therefore unavailing. ,ment will therefore be entered in favor of the intervenor, Joseph G. ,Peirce, and an order directing the payment to him of the money paid into court by the insurance company. Also judgment in his favor .against plaintiffs for costs.
FARWELl. et al.
'V.
MAXWELL, (GRAFF, Intervenor.) April 21, 1888.)
{OJ)'cuit (70ltTt, S. D. Iowa.
ASSIGNMENT FOR BEl!\EFIT OF CREDITORS-PREFERENCES.
Under Code Iowa, § 2115, providing that no general assignment of property for the benefit of creditors shall be valid unle,ss it be made for the benefit of all the creditors, etc., a general assignmentfor the benefit of all creditors will , not be held invalid because the debtor executed a to one of the creditors a few hours before he made the-assignment, unless It appear that at the time he executedthe former he had for,med the intention of making the,geueral assignment. , SAME.
:2.
Under Code Iowa, § 2115, providing that no general assignment of property fortha bene,fit of cre,ditors shall be :valid unless it be made for the benefit of all the creditors. etc., a general assignment for the benefit of all creditors will not be held fdr the reason that the debtor on the day of making the assignment delivered to his wife certain notes due him, it that such n,otes were, by previous agreement, to operate as security for sums borrowed by the debtQr of his wife. " Where a debtor made a general assignment of his property for theben-jt of all his creditbrs, with the intent, that, the property be sold to the best, ad· vantage fOJ: the payment of his debts, yet that after such payment thero would be a large surplus left for himself, there being no evidence of an intent oubis part to secure delay in the sale, or a compromise with his creditors, such assignment will not be !:leld void as in fraud of creditors, The fact that a debtor inciuded in the list of creditors in making a general assignment of his property for their benefit, the names of his sons and daughter, who, according to the evidence, had helped him in his business with a general understanding that they shouldbe remunerated, does not ofitself invalidate such assignment as fraudulent, even though it may prove that such children have no claim. ' '
:So
SAME-FRA.UD-DELAYING CREDITORS.
4. SA.ME-INCLUDING CmLDREN AS CREDITORS,
At Law.
Intervening petition.
W. W. Moracman and Wright, Baldwin & Haldane, for plaintiff.
W. P. Hepburn, for intervenor. SHIRAS, J. On the 21st of April, 1887 ,Adam Maxwell, a merchant <llirrying on business at Clarinda, Iowa, executed. a deed of assignment for the benefit 'of his creditors to Valentine Graff. The plaintiffs, to whom Maxwell was indebted for goods' sold on credit, brought suit to re-cover the il1110unt due, and,havingjudgment therefor,they now seek to