loaned by him to Canfield, and the defendant claims under an assignment of the same policy from the children, who are therein described as the assured. No facts appear either in the findings or the evidence disclosing any equities on the part of the plaintiffs outside of the title claimed by them under the assignment by Samuel W. Canfield to their testator, and we are unable to perceive any foundation for their claim. The contract of the Equitable Assurance Society was not with Samuel W. Canfield, but by its express terms was with the assured, viz.: his children.

The claim is made in the points of the counsel for the appellant that by the terms and conditions of the policy which was on the Tontine plan in case Samuel W. Canfield should be living at the time of the maturity of the policy the amount due was payable to him personally. We are unable to find any thing to that effect. The provision as to payment before death was, that upon the completion of the Tontine period the legal holder, or holders, of the policy should be entitled, at their option, to withdraw in cash the policy's share of the fund. The only provision under which it could be claimed that Samuel W. Canfield might in any event be entitled to draw any thing is a subordinate one to the effect that the legal holder or holders of the policy, on the completion of the Tontine period, might at their election, instead of withdrawing their share of the Tontine fund, continue the assurance for the original amount and apply their entire Tontine dividend to the purchase of an annuity to reduce the future premiums, and that if in any year the amount derived from such annuity, together with the annual dividend on the policy, should exceed the amount of premium due, the excess should be paid in cash to the said Samuel W. Canfield or assigns. It can easily be surmised how the name of Samuel W. Canfield, instead of the assured, happened to be inserted in this clause, but it is quite unimportant to consider that matter, inasmuch as the contingency provided for never occurred.

The counsel for the appellant also claim that the alleged assignments from the assured to the defendant in this action were incomplete and in some respects invalid. But these objections, if well founded, do not help the case of the plaintiffs. If the defendant has not a valid assignment of the interests of the assured the fund belongs to them, but this does not improve the plaintiff's title.

The order of the general term should be affirmed and judgment absolute rendered against the plaintiffs on their stipulation, with costs. All concur.

Order affirmed.

The following is the opinion at general term.

BRADY, J. The Equitable Assurance Society of the United States issued, on the 17th of October, 1873, a policy of insurance on the Tontine savings time plan, upon the life of Samuel W. Canfield, for the sum of $25,000, by the terms of which the premium of $1,009.25 was to be paid annually during the continuance of the policy, and the society agreed and promised to pay the amount of the assurance to the children of Canfield, who were named in it, share and share alike, upon

the proper proofs of death; and further, that upon the completion of the Tontine period, provided, if the policy should not have terminated previously by lapse or death, to give the legal holder of the policy certain options.

On the 17th day of November, 1873, Canfield obtained a loan of $3,000 from John W. Ferdon, and assigned to him the policy as collateral security for that sum with interest, and notice of such assignment was given to the insurers. Subsequently, and in the year 1877, before the expiration of the Tontine period, the policy was assigned by the children named in it, and by the insured, to the defendant herein, and possession of it given him. On the 17th day of August, 1883, the policy became due according to its terms, and the first assignee, Ferdon, sought to get the amount from the society and made a demand for it, but payment was refused, and he thereupon commenced an action in this court to compel payment. The defendant also commenced an action against the society to compel payment to him, and the society thereupon instituted proceedings to relieve themselves by payment of the sum into court, leaving the disputants to settle the controversy between themselves.

The defendant upon the trial testified that he took the assignment of the policy in June, 1877, and paid all the premiums after that date. The insured then testified that when the policy was assigned to the defendant it was delivered to him; and the defendant then stated that he had possession of the policy all the time he was paying the premiums. He had previously said that when the assignment was executed by the insured, over $6,000 had been paid to the assignor by him.

No proof was offered to show that Ferdon, the first assignee, had made, or offered to make, any payment of any of the premiums, but the defendant offered to show, by one of the children of the insured and assignor, that in a conversation she had with him, he surrendered to her, for her father, the policy in controversy, stating that it was not of any benefit to him, as the premiums were not paid, and would not be, if they were not paid. This evidence was objected to because she was one of the assignors and rejected. Nevertheless, it appears, as we have seen, that the defendant had possession of the policy and paid the premiums for several years, and up to this maturity on the Tontine plan.

The question to be considered on this appeal, as eliminated by the facts and circumstances detailed, is, therefore, whether the assignment of the policy to Ferdon by the insured alone, accomplished a valid transfer of the policy and the benefits to be derived from it, or to state the question differently, whether the society having promised to pay to the children of the insured, an assignment of the policy by the insured alone would deprive them of the policy and its benefits.

The only cases bearing on this question which has been found after a somewhat elaborate search, are those of Bickerton v. Jacques, decided in this department, and reported in 28 Hun, 119, and Ruppert v. Union Mutual Ins. Co., 7 Rob. 155.

In the first case it appeared that one Henry R. Jacques procured a

policy of insurance upon his life for $2,000, payable, upon his death, to his sister Elizabeth. She died during his life-time. Thereupon he surrendered the policy and took another for the same amount payable, upon his death, to his nephew David. He retained the policies in his possession, paying the premiums falling due upon the first one, and allowing the dividends declared upon the second to be applied to the payment of the premiums accruing upon it. The administrator of Elizabeth Jacques, for whose benefit the first policy was obtained, denied the right of the insured to make the surrender of the first policy, and, therefore, of David Jacques to the benefit to be derived from the second policy. The learned justice, in examining the question presented, said that no decisive authority had been found by him, the cases affecting the right of a person obtaining the policy to surrender it and receive another in a different manner, having generally arisen under the statute for the benefit of the widow and children, and which were not applicable to the controversy, because the statute was not broad enough to include them. And the learned justice determined that the transaction should be governed by the intention of the person obtaining the insurance, so far as it was capable of being gathered from the attending circumstances, and held that the insurer did not intend to place the insurance irrevocably beyond his control, because he paid the premiums upon it and retained possession of the policy himself. The learned justice thought that the primary and substantial purpose of the insured was to secure the means of sustaining his sister after his own decease, and as that purpose was defeated, he was at liberty to deal with the insurance as he himself deemed to be proper, and the conclusion arrived at was that the administrator of Elizabeth was not entitled to any portion of the moneys springing out of the policy.

In the second case cited the pleadings and evidence established that Valentine Ruppert procured an insurance of $2,000 upon his own life for the benefit of his three children, naming them, which sum was to be paid to the insured or his executors, administrators or assigns, and that Ruppert by his last will and testament gave and devised the policy of insurance in question to his executors in trust for certain purposes. The question presented was whether the children named in the policy did or did not take a vested estate or interest in the sum insured upon, and by the delivery of the policy to that amount. It was held that the children and not the executors were entitled to the fund in question, and the executors were defeated in their claim therefor.

In

In this case, as we have seen, the assignment to Ferdon was executed by the insured, and by him only. By the terms of the policy nothing was to be paid to the insured but to the children, and Ferdon took the assignment with notice of the character of the agreement made. addition to this it was established that the premium was paid by the subsequent assignee, whose assignment was executed not only by the insured but by the children for whose benefit the policy was secured, the policy being in his possession over the period during which he made the payments of the premiums, and, indeed, up to the time of the

trial.

The value of the assignment to Ferdon, of course, if it had any

VOL. IX.-41

value, depended upon the payments of the premium by the insured, which from the time of the assignment to the defendants were not made by him, and it may be inferred from the facts and circumstances attending the relations between the defendant and him that he had not the means to pay. If the beneficiaries had died, under the authority of Beckerton v. Jacques, supra, the insured would have the right to surrender the policy and change it, and, therefore, that authority established a certain degree of control over the policy. But the control is regulated by the intention according to the views of the learned justice who delivered the opinion in that case.

The intention of the insured in relation to the policy herein in controversy was, that his children named should have the benefit of it, and that intention has not been departed from so far as the policy itself in its form is concerned, although the attempted assignment of it would indicate an intention that it should be employed in payment of his obligations. The case of Ruppert v. Union Mut. Ins. Co., supra, is accepted as the better solution in question herein, inasmuch as it determines the right of the assured, 2. e., the person to whom payments under the policy were to be made, to the benefit of the insurance, as vested right secured by the policy. This seems to be not only in accord with the intention of the insured, but the necessary result from the form of the policy itself, with regard to any sum that might become payable under its provisions.

For these reasons it is thought that the assignment to Ferdon is, under the circumstances, not available to his representatives, and that the judgment appealed from should be reserved and a new trial granted, with costs to abide the event.

DAVIS, P. J., concurs; DANIELS, J., dissents.

SUPREME COURT OF PENNSYLVANIA.

CENTRAL BANK v. EARLEY.

October 4, 1886.

RESERVED POINT-FACTS-JUDGMENT NON OBSTANTE VEREDICTO.

A reserved question must place distinctly upon the record not only what the point reserved is, but the state of facts out of which it arises, otherwise a judgment non obstante veredicto cannot be entered.

There are three ways in which facts arising upon the evidence can find their way into the record "to-wit," by the finding of a jury which is a special verdict, by the agreement of the parties, called a case stated, and by the eertificate of the court contained in a bill of exceptions; this last is the mode directed by the statute in the case of points reserved.

Error to the court of common pleas of Elk county. sufficiently stated in the opinion.

The facts are

George A. Rathbun, A. M. Brown, Thos. C. Lazear, J. McF Carpenter, Richard A. Kennedy, for plaintiff in error. A mortgage, though in form a conveyance, is, in reality, both at law and equity, only a security for the payment of money, or performance of other collateral contract. Wilson v. Shoenberger, 31 Penn. St. 295. In Scott v. Sample, 5 Watts, 53, the only question was whether a debt secured by a mortgage is real or personal estate. Where several persons have a community of interest in an estate, one cannot acquire an outstanding title or buy in an incumbrance and set it up to the judice of his co-tenants. Weaver v. Wible, 25 Penn. St. 270; Lloyd v. Lynch, 28 d. 419. A conveyance to one of several tenants in common shall inure to the benefit of all who come in under the same title and are holding jointly or in common. Vanhorn v. Fonda, 5 Johns. Ch. 409; Smiley v. Dixon, 1 Penn. 439; Davis v. King, 87 Penn. St. 261. See, also, Stoves v. Corey, 53 Iowa, 708.

pre

John G. Hall, Henry Souther, C. H. M'Cauley, Charles B. Earley, for defendant in error. The principle applies as between Earley, Brickell & Hite that applies to co-mortgagors, to-wit: that as between themselves each is a primary debtor for his own third, and surety only for the share of the debt owned by his co-tenant. Gearhart v. Jordan, 1 Jones, 325; Watson's Appeal, 9 Norr. 430. To give a purchaser the character of an innocent purchaser without notice he must show payment of the purchase-money and that by evidence dehors the deed. Lloyde v. Lynch, 4 Casey, 419.

CLARK, J. This action of partition was brought in the common pleas of Elk county, by C. R. Earley, against W. B. Brickell and P. Y. Hite, to recover in severalty one-third of certain lands, situate in said county; the title to which at the institution of the suit was held by the parties in common. The Central Bank of Pittsburgh, having afterward acquired an interest in the property by purchase, was admitted to defend and the plea of non tenent insimul was entered.

The verdict of the jury was for the plaintiff, the meaning and effect