The plaintiff in April, 1877, took out a policy on his life in the Equitable Life Assurance Society of the United States, payable to his wife if living, and if not living to his children, and if no children to his estate.
On the 14th of December, 1889, the plaintiff and his wife assigned the policy to the defendant Schmidt, in consideration of his oral agreement to support and care for them from that time on. This assignment was not absolute, but was to Schmidt "as interest may appear."
The agreement between the parties was that Schmidt was to receive from the proceeds of the policy such sums as he might advance in supporting plaintiff and his wife.
From December 14th, 1889, until the month of September, 1890, the plaintiff was furnished food by the defendant Schmidt, and for four months of that time plaintiff's wife was furnished *Page 408 food until the time of her death, April 29th, 1890 During the period the defendant Schmidt so furnished food to the plaintiff the latter worked for the former, rendering services that were worth eight dollars a week, and for which he received no compensation. The defendant Schmidt ceased to support the plaintiff after September, 1890, and did not offer to do so, although plaintiff was ill, old and destitute, and without any other property than the policy in question.
On the 28th of March, 1892, and eighteen months after he had ceased to support plaintiff, the defendant Schmidt made an absolute assignment of the policy to the defendant Waelden for a dollar and other valuable consideration as alleged.
With this state of affairs existing, the plaintiff, a widower and childless, brought this action to redeem the policy, offering to pay the sums lawfully advanced upon it, and praying that it then be assigned to him.
The Special Term granted the relief prayed for, but the General Term reversed the judgment upon the ground that the record disclosed no refusal to support; that this was an action to cancel an instrument and there was neither allegation nor proof of fraud or mistake.
The suggestion was made that the remedy might be an action for specific performance, or a legal action for damages.
We are of opinion that the learned General Term misapprehended the character of this action and the nature of Schmidt's title to the policy, which was qualified and not absolute as assumed by the court below.
This is an action to redeem and is the only adequate remedy open to the plaintiff. The cancellation of the assignments of the policy to the defendants is a mere incident in this action; its principal object is to secure to the plaintiff a reassignment of the policy of insurance on payment of such amount as the trial court should find justly due.
The facts in this case are very simple and disclose a palpable effort to overreach an aged, penniless and sick man, and deprive him of the only property he possessed and upon which he depended for support in his declining years. *Page 409
Since the year 1877 the plaintiff has personally, or with the aid of friends, raised most of the premiums on this policy, paying out in the aggregate a sum exceeding one thousand dollars. On the other hand, the defendant Schmidt has paid only one hundred and thirty-five dollars in premiums.
The trial court was fully justified in accepting the plaintiff's very reasonable version of the transaction and in rejecting the explanation of the defendant Schmidt as to how he became possessed of the policy, which was to the effect that the plaintiff gave it to him outright because he had done so much for him in the past, and for the further reason that plaintiff could no longer keep up the payment of premiums.
There was no effort to state in detail what he (Schmidt) had done for this plaintiff that should lead him to divest himself of the only property he possessed in his old age by a voluntary gift.
As to the absolute assignment of the policy from defendant Schmidt to defendant Waelden, it is sufficient to say that the only interest Schmidt had in the policy was to the extent of his advances, and he could convey to Waelden no better title than he had.
The explanations of the defendants at the trial in this connection are not material for the reason just stated, but it is impossible to read them without being confirmed in the conviction that the plaintiff has suffered great injustice at the hands of these defendants.
Schmidt stood in a quasi trust relation to the plaintiff and rested under the continuing obligation to support him, and the proof of his actual refusal in terms to perform his contract was not essential.
The fact that he neglected to perform his contract, and sought to confer upon a stranger, under most suspicious circumstances, the absolute title to the policy which he only held as security, justified the intervention of a court of equity.
It was competent for plaintiff to explain why the words *Page 410 "as interest may appear," were placed in his assignment of the policy to Schmidt, and under the agreement as found Schmidt could enforce against the policy only the amount of his advances.
We are satisfied with the disposition of this case made by the Special Term, and think justice will be done between these parties by affirming that judgment in all respects.
The judgment of the General Term should be reversed and the judgment of the Special Term affirmed, with costs.
All concur, except ANDREWS, Ch. J., absent, and GRAY, J., who dissents on ground that the complaint seeks to cancel a deed of assignment, absolute in terms, upon the ground that it was made upon a collateral promise of the assignee, and such was plaintiff's evidence. It is not alleged in the bill, nor found as a fact, that this assignment was made through any mistake, or as the result of any fraud practiced, and equity does not relieve from the effect of such an instrument, unless the demand for relief can rest upon one of those grounds. An oral contemporaneous stipulation, not embraced in the writing, is ineffectual to control its effect. (Wilson v. Deen, 74 N.Y. 531;Nevius v. Dunlap, 33 N.Y. 676.) The use of the words "as interest may appear," is not explained anywhere in the evidence, and as there was no indebtedness to the assignee and the assignment was absolute in terms, their meaning is mere matter of speculation.
Judgment accordingly.