Moulton v. Finney ( 1907 )

This court is of the opinion that there is error in the judgment of the circuit court in this, to-wit: in the eleventh and twelfth findings of fact and in the judgment dismissing the petition of plaintiffs at their costs.

The court is of further opinion that from the undisputed evidence it does appear that neither the said John K. Duke nor Lola C. Duke was, at the time of said transaction, capable of entering into said agreement for the transfer of said life insurance, policies, but that said contract was in legal effect procured by duress, was speculative in its nature, and, whatever may have been the motive prompting the making of it by defendants, was not a bona ñde sale and'transfer in the legal sense, but resulted in the taking of an inequitable advantage of the circumstances and condition of the said John K. Duke and Lola Duke; and that the justice and equity of the case upon the facts requires that the judgment dismissing the petition be reversed and the same is hereby reversed. And proceeding to render the judgment which the circuit court should have rendered, the defendants are awarded from the fund paid into court by the several insurance companies the amounts paid by said defendants by force of said- attempted contract respecting the transfers of said policies, with interest to the date of this decision, June 11, 1907. And it appearing that upon the rendition of the judgment by the circuit court on the 13th day of November, 1905, the whole of said fund with accrued interest to November ' 23, 1905, amounting at that date to $11,568.22, was paid over to the defendants, Frank B. Finney and J. Leigh Watkins, which with interest at four per cent, to June 11, 1907, amounts to $12,285.73; and leaving after deducting the said sum awarded to defendants as aforesaid and the costs of these proceedings in the circuit court and the court of common pleas, taxed at $178.00, which the defendants, Frank B. Finney and J. Leigh Watkins, are ordered to pay from said fund the sum of $7,609.15, which the defendants are ordered to pay to the plaintiffs.

It is therefore considered by this court that the plaintiffs do recover from defendants, Frank B. Finney and J. Leigh Watkins, the said sum of $7,609.15, herein found due, the same to bear interest at four per cent, from and after June 11, 1907.

This court does not pass upon the legal question argued, whether or not such assignment ■ of insurance policies might under any circumstances be sustained.

Si-iauck, C. J., Price, Spear and Davis, JJ., concur.