198 S.W. 391 | Tex. App. | 1917
Appellant sued appellee for divorce, partition of community property, and an accounting in that respect. Upon the verdict of the jury upon special issues of fact divorce was granted and certain sums of money allowed her and made an equitable charge against the separate real estate of appellee. Neither party complains of the divorce decree, but appellant has brought the case to this court complaining on several grounds of the accounting ordered by the judgment on the findings of the jury. These matters are so presented as to render a statement of the pleading and all the facts found by the jury unnecessary. The facts necessary to be detailed will be fully enumerated in discussing the several assignments of error.
The first issue attacks the sufficiency of the evidence to sustain the finding of the jury that $810 of appellee's separate funds were used in paying an indebtedness against separate lands of appellee existing at the time of the marriage of the parties. The facts necessary to be related on the issue thus raised are these: Appellant and appellee were married in the year 1903, appellee owning at the time a 66-acre farm, against which there was a principal indebtedness of $1,200, which the evidence shows without dispute was paid during the years 1906, 1907, 1909, 1910, 1911, and while the marriage reLation existed. The total amount of principal and interest paid on the note during marriage of the parties was $1,879. The jury found that the community funds contributed for that purpose $973, appellee's separate funds $810, and appellant's separate funds $96, and no complaint is made *392
concerning the sufficiency of the evidence to support the finding that $973 of community funds and $96 of appellant's separate funds were applied for the purpose stated. The only proof which sustains the finding of the jury that $810 was paid out of appellee's separate funds is his statement that he sold two mules and two cows, his separate property, from which he realized $265, which amount he says at one point he applied on his note, and at another he used in payment of house-hold expenses. Such sum falls $545 short of the amount found by the jury to have been paid out of appellee's separate estate. Likewise there is in the record no proof that said sum was paid from the community funds. Such being the facts disclosed by the record, counsel for appellant contends, in effect, that the presumption arises as matter of law that the sum not accounted for was paid from the community funds. No such presumption, we believe, may be indulged under the authorities. Suits for divorce and an accounting are not unlike all other judicial proceedings, in that proof must be adduced in support of every material issue asserted, and when such issue fails of any proof at all it cannot be established by presumption. The finding of the jury that the $810 was paid out of the separate funds of the appellee, we agree as stated, is not supported in full by the evidence. At the same time there is nothing whatever in the record that will support a finding of fact that it was paid out of the community funds. The finding of the jury that only $973 was so paid tends to deny the presumption that the $810 was paid from the community funds. It is true that the entire indebtedness was paid by appellee during the years 1906 to 1911, both inclusive, and while the marital relation existed, but the jury found, with all the facts before them, that only $973 was contributed by the community. We have found no case exactly in point as to the facts, but it has been held that payments made shortly after marriage by one of the spouses upon separate indebtedness will not be presumed to have been made out of community funds in the absence of proof in that respect. Medlenka v. Downing,
The next contention is the claim of appellant that she was entitled to have established against the separate estate of appellee as an equitable charge the sum of $575, which the court refused to do. The claim is based on these facts: Upon appellee's farm, which we have shown was his separate property, was his residence. In the year 1915 appellant caused the residence and contents, consisting largely of appellant's household furniture, to be insured in the name of appellee against loss by fire in the sum of $2,000, paying the premium of $81 out of her separate funds. The house and furniture were destroyed by fire, the insurance collected, out of which appellant was paid $700, the value of her household furniture, etc., $1,150 used in rebuilding appellee's home, and the remainder used for current expenses. In the accounting appellant was allowed the amount of the premium as a charge against appellee. Appellant contends that, in view of the payment of the premium from her separate funds, and in the absence of anything in the contract of insurance limiting appellant's probable interest in the insurance money in case of fire, and in view of her insurable interest therein as the consequence of her homestead rights, the proceeds of the policy became community funds, to one-half of which she was entitled. In support of her contention appellant cites the case of Martin v. McAllister,
Appellant also relies upon Continental Fire Association v. Wingfield,
In the case last cited Mrs. Buchanan owned a life estate in certain lands, with knowledge of which the insurance company for her sole benefit and in her name insured the improvements thereon against loss by fire. There was a loss. The remaindermen intervened, claiming the fund on the ground that they were the owners of the land. Verdict was directed for Mrs. Buchanan, and on appeal it was ruled that, the policy being payable to Mrs. Buchanan, the remaindermen were only entitled to recover the excess over the value of her life estate, and, having failed to submit any testimony on that issue, the judgment was affirmed. The distinguished justice writing the opinion gave it as his personal view, the contract having been made for the sole benefit of Mrs. Buchanan, that she was entitled in any event to recover the full amount of the money.
The general rule announced in both cases concerning the insurable interest of the parties is sound in principle and reason and supported by authority. Adopting in substance the language of another, any one has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction, and the mere equitable title or other qualified property in the thing insured, though not the fee, may be protected by insurance in case the insured might suffer loss by the destruction of the subject-matter of the insurance. 14 R.C.L. 910; 19 Cyc. 583; Kludt v. German Fire Ins. Co.,
A careful consideration of the texts and decisions cited by us will disclose that the contention of appellant is sustained by none of them, unless it be the Buchanan Case. That case is distinguishable in its facts from the instant case in the respect that the policy was issued to Mrs. Buchanan and intended for her sole use and benefit, while in the instant case the policy was issued to appellee, but covered partly his separate property and partly the separate property of appellant. We conclude, whatever may be the analogies to be drawn from the Buchanan Case, it never was intended thereby to hold that, because the premium upon a policy insuring the home situated on the husband's separate property was paid by the wife from her separate funds, this would, in case of loss, convert the proceeds of the policy into community funds. We base such conclusion upon our conviction that when the house upon the land is destroyed by fire and there exists thereon a policy of insurance the money arising therefrom stands in the place and stead of such home. That it does as between the owner and creditors has been settled. Chase v. Swayne,
We also conclude, all other issues aside, that when appellee used the insurance money to rebuild the home, as he did, and the parties resumed its occupancy as a home, appellant's interest and right in the fund was restored in contemplation of the rule holding she had an insurable interest in the same. Appellant complains of the action of the *394 trial court in charging her with an item of $120. The court's action arises upon these facts: At the time the parties were married appellant owned a hotel in Melissa. The jury found in response to appropriate questions that appellant collected $240 from such source. According to her testimony, she spent such sum in current family expenses. Appellee, while not so positive in his statements, in effect denies he ever received it, or that it was expended for the community needs. How the money was used was not submitted to the jury. The court, the record being as stated, charged appellant with onehalf the sum, which is but a finding that appellant received the benefit of the full sum, and there being, as we have shown, testimony which will support the finding, we are without authority to disturb it, whatever our personal deductions from the testimony might be.
In view of the conclusion we have reached on the sixth assignment of error, it will be unnecessary to discuss the third and fourth assignments, save to say that we think the jury was authorized to prorate the premium cost on the house and furniture on the basis of the ratio each bore to the whole sum of insurance which they appear to have done in their finding.
We have carefully read the testimony adduced and the authorities cited, and as carefully considered the propositions advanced, and feel on the whole that the record fails to disclose reversible error, and for which reason the judgment is affirmed.