Tbe defendant interposed a plea of tbe three years statute of limitation to tbe plaintiff's alleged cause of action in so far as it related to tbe premiums paid on tbe policies issued on tbe lives of tbe relatives of tbe plaintiff. Tbe evidence of tbe plaintiff is to tbe effect tbat these policies were canceled for tbe nonpayment of premiums on 19 March, 1936.
It is stipulated by tbe parties tbat summons was issued 17 February, 1942; hence, it appears tbat tbe action was barred by tbe provisions of C. S., 441 and 6465, tbe latter of which, in part, reads: “No action shall be maintained to recover under a forfeited policy unless tbe same is instituted within three years from tbe day upon which default was made in paying tbe premium, installment, interest, or portion thereof for which it is claimed tbat forfeiture ensued.”
Since this action is stated to be for tbe recovery of premiums paid on forfeited policies, and since tbe evidence of tbe plaintiff is to tbe effect tbat tbe premiums on tbe policy on tbe life of the plaintiff herself have been paid to date and tbat tbe policy is still in force, no cause of action to recover premiums on a forfeited policy can be maintained on tbe policy involved.
It follows tbat there was no error in sustaining tbe demurrer to tbe evidence of tbe plaintiff and entering judgment as in case of nonsuit.
However, tbe plaintiff appellant complains tbat bis Honor added to bis judgment tbe following proviso: “Without prejudice, however, to tbe rights of the plaintiff in tbe paid-up policies listed in paragraph (c) of tbe further answer,,as follows:
“Policy No. 769037, on tbe life of Annie Bynum.$49.00
Policy No. 793721, on tbe life of Henry Bynum.$47.00
Policy No. 1054743, on tbe life of Annie Bynum .$46.00
Policy No. 1385773, on tbe life of Martha Bynum.$41.00.”
If this proviso be error, such error, if not in favor of tbe plaintiff, appellant, was certainly harmless to her. It was doubtless entered to put of record tbat tbe court did not intend to foreclose by tbe judgment any person from any benefits be or she might have under tbe paid-up policies which tbe defendant admitted existed upon tbe death of tbe insureds therein named. Tbe record, however, does not divulge who tbe beneficiaries of tbe policies are, and tbe proviso is therefore not binding against any person who may be interested in any benefits under tbe policies.
Affirmed.
Stacy, O. J., and WiNBORNE, J., dissent.