5 S.W.2d 602 | Tex. App. | 1928
The propositions of the appellant present, in effect, the points in view, namely: (1) The policy was void under its terms from its inception, in that, at the time the policy was issued, the interest of R. C. Boyle in the property insured was not "other than unconditional and sole ownership." (2) The intervener was not entitled to recover in any event, in that she was not made a beneficiary by express provision, and the element of privity of contract was otherwise absent.
If the appellant be liable at all on the policy, the second point above may not be available in the facts. It is admittedly shown that the policy was assigned to J. F. Hoyle on April 29, before the fire. The assignment was indorsed on the policy. Thus the policy stood in the name of J. F. Hoyle by actual transfer, with the assent of appellant's agent, who was authorized to agree to such assignment. The intervention of Mrs. Hoyle, joined therein by her husband, was in legal effect purely a claim by her against J. F. Hoyle, the assignee, to the extent of $2,000, upon the facts alleged, in the event such assignee recovered on the policy. Her claim was not in the nature of a suit on the policy directly against the appellant. Under her pleading, any recovery by her against the assignee was entirely dependent upon the recovery on the policy by the assignee. If the assignee should fail of recovery, then the intervener likewise would fail of recovery. In such character of controversy it was of no legal concern to the insurance company as to whether the assignee or the intervener, as between themselves, should be awarded the sum payable under the policy, provided the appellant would be legally protected thereby. All the parties having any interest or claim whatever being before the court, they would be concluded by the judgment rendered, and the appellant would be legally protected thereby. J. F. Hoyle, as original plaintiff, had the right to bring the suit, and could maintain it against appellant, if the appellant were liable at all on the policy, because he had an interest in the protection of his outstanding note to Fleming, in the insurance, as assignee with knowledge and assent of appellant. Also the appellant may not avoid liability on the policy merely because of the conveyance to J. F. Hoyle by R. C. Hoyle and wife, as from the plain evidence the appellant was estopped from asserting such defense by reason of its knowledge and conduct through its agent.
As to the first point, the evidence is undisputed that the realty was purchased partly with the separate money of Mrs. Hoyle and partly with community money, and the building was upon the realty at the time of the purchase. The policy covered the one item of the building, and there was no personal property involved. The policy expressly provided that the interest of R. C. Hoyle, the assured, in the insured property should be that of "unconditional and sole ownership," or otherwise the policy would "be void" or ineffectual at its inception. It is believed that the facts in the instant case bring it within the ruling in German Ins. Co. v. Hunter (Tex.Civ.App.)
That ruling is not at variance, but consisttent, with Crescent Ins. Co. v. Camp,
In the Beneke Case there was distinguishment made between that case and Warren v. Ins. Co.,
A different ruling is not made in Continental Fire Ass'n v. Wingfield,
The cases further cited of Georgia Home Ins. Co. v. Brady (Tex.Civ.App.)
Estoppel on the part of the appellant to assert against the insured his breach of the sole and unconditional ownership clause may not be made available in the present case. There is no pretense of evidence that the agent of appellant had notice or information of the fact of Mrs. Hoyle's separate money having paid the most part of the purchase price of the land. The deed did not so disclose, and the agent positively says he did not know of that fact. Mr. Hoyle does not testify that he told the agent about it. And, therefore, the appellant would not be precluded from availing itself of the defense against the assignee of the violation of such clause of the policy by the original insured, because the assignee was not, as admitted by all parties, in fact and intention, a real purchaser and owner of the insured property. In such circumstances, the assignee was subject to the same defenses as the assignor. There was no issue of fact to be determined by the jury, as correctly held by the trial court.
The judgment is reversed, and judgment is here rendered for the appellant, with all costs of appeal and of the trial court.