Georgia Home Ins. Co. v. Leaverton

• Decision Date: 21 December 1895
• Citation: 33 S.W. 579
• Parties: GEORGIA HOME INS. CO. v. LEAVERTON et al.
• Court: Texas Court of Appeals

33 S.W. 579

GEORGIA HOME INS. CO. v. LEAVERTON et al.

Court of Civil Appeals of Texas.

December 21, 1895.

Appeal from district court, Hardeman county; G. A. Brown, Judge.

Action by H. C. Leaverton and others against the Georgia Home Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

A. G. Walker, for appellant. Smith & Martin, for appellees.

STEPHENS, J.

R. F. George insured his residence in Quanah, upon which the Texas Building & Loan Association held a lien, in appellant company, the policy being made payable to the loan company. During the life of the policy George sold the property to H. C. Leaverton, who took possession, and paid a part of the purchase price, though no deed of conveyance was delivered; the parties having agreed that the deed should be left with the bank till the purchase money should be fully paid. Appellant's agent had knowledge of this transaction, and consented thereto, and both the transfer of the policy from George to Leaverton and the consent of his company thereto were indorsed on the policy. The house was thereafter, within the period covered by the policy, totally destroyed by fire. The amount of the policy exceeding that of the loan company's debt, this suit was brought by it and Leaverton jointly. These facts were fully set out in the petition; and the policy declared on, though not made an exhibit, was therein identified by its number. The Texas Building & Loan Association, being not only interested in, but also the payee of the policy, was properly joined as a party plaintiff. In alleging that it was payable to said loan company as its interest might appear, the petition did not literally describe the policy, the clause, "as its interest might appear," not being contained therein; but the legal effect of the transactions alleged was stated, and no objection was made for variance in the admission of evidence. To the amount of its debt the loan company was entitled to recover in its own right; the rest it could only have recovered in trust for the owner of the property. The judgment conformed to the nature of the case alleged and developed on the trial. The clause avoiding the policy on the ground of the assured's not being the sole owner of the property, in view of the knowledge and consent of the insurance company, alleged and proven, was unavailing. These conclusions overrule the several assignments of error complaining of misjoinder and the insufficiency of the pleadings and...