Ruis v. Bank of Albany

213 Ga. 41 (1957)

96 S.E.2d 580

RUIS v. BANK OF ALBANY et al.

19563.

Supreme Court of Georgia.

Argued January 14, 1957.

Decided February 12, 1957.

Robert W. Reynolds, for plaintiff in error.

J. W. Smith, Robert D. Hedrick, Smith, Gardner & Kelley, Peter Zack Geer, contra.

DUCKWORTH, Chief Justice.

Where, as here, the petition alleges that the plaintiff is the beneficiary of a life-insurance policy which had been assigned by the deceased insured to the defendant Bank of Albany as security for a debt which was also secured by a security deed, that the court should restrain the defendant bank from paying off said debt with the proceeds of the policy until all means of satisfying the note by proceeding to collect under the security deed have been employed, and prays that the court should do equity and justice by molding such a decree, the petition fails to allege a cause of action for the relief sought. Under the facts alleged, the bank has the right under the assignment to elect to pay off the note from *42 the proceeds of the policy without first exhausting the other security. The beneficiary, having only a divestible interest which is not a vested right, has been, in effect, divested of this interest by the assignment subject to the payment of the debt. See Code § 56-903; Code (Ann.) § 85-1803 (Ga. L. 1952, pp. 225, 229); Grenville v. Crawford, 13 Ga. 355; Rattray v. Banks, 31 Ga. App. 589 (121 S. E. 516); Merchants Bank v. Garrard, 158 Ga. 867 (124 S.E. 715, 38 A. L. R. 102). Hence the court did not err in sustaining the general demurrers and dismissing the petition.

Judgment affirmed. All the Justices concur.