Alsup v. Hawkeye Securities Fire Ins. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Willson
• Citation: Alsup v. Hawkeye Securities Fire Ins. Co., 300 S.W. 223 (Tex. App. 1927)
• Decision Date: 04 November 1927
• Docket Number: (No. 3439.)<SMALL><SUP>*</SUP></SMALL&gt
• Petition History: writ ref'd
• Parties: ALSUP v. HAWKEYE SECURITIES FIRE INS. CO.

300 S.W. 223

ALSUP v. HAWKEYE SECURITIES FIRE INS. CO.

(No. 3439.)^*

Court of Civil Appeals of Texas. Texarkana.

November 4, 1927.

Rehearing Denied November 10, 1927.

Appeal from District Court, Lamar County; Newman Phillips, Judge.

Suit by G. M. Alsup against the Hawkeye Securities Fire Insurance Company on a fire insurance policy. Judgment for defendant, and plaintiff appeals. Affirmed.

This was a suit by G. M. Alsup, appellant, against the Hawkeye Securities Fire Insurance Company, appellee. It was on a policy issued by appellee October 22, 1923, insuring appellant for a term of three years in the sum of $1,800 against loss by fire of a dwelling house, in the sum of $150 against loss by fire of a smokehouse, and in the sum of $1,000 against loss by fire of a barn. The houses were part of a farm purchased by appellant of one Glasco. Appellant alleged that the dwelling house and smokehouse were totally destroyed, and the barn damaged in the sum of $400, by fire December 30, 1923. In its second amended original answer, appellee alleged, among other things:

"That, when the plaintiff purchased the property upon which the house is situated, covered by said policy of insurance, he purchased therewith a farm containing ____ acres; that he made a cash payment thereon of only about $250, which was his total investment therein; that there was outstanding at the time two mortgages upon said property, one for the sum of $4,500, and a second mortgage for the sum of $1,750; that the interest upon said mortgages was past due when the plaintiff purchased said property, and that plaintiff, having assumed said mortgages, continued in default of the payment of said interest; that by reason thereof said property was advertised for sale under a deed of trust given to secure the payment of said second mortgage for the sum of $1,750, said advertisement having been made in accordance with the provisions in said deed of trust on or about the 10th day of December, 1923; that the fire which destroyed said building occurred on the 30th day of December, 1923; that, in accordance with said advertisement and with the provisions of said deed of trust, said property was sold to the highest bidder by J. B. Bell, substitute trustee, on the first Tuesday in January, 1924, the same being the 1st day of said month, and said property was thereupon bid in by the Reynolds Mortgage Company, a corporation of Fort Worth, Tex., which is now the owner thereof; that the policy sued on contains the following provision and condition:

"`This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if before a fire occurs the insured shall obtain or receive information that foreclosure proceedings have been commenced, or that notice has been given or posted of sale of any property covered by this policy by virtue of any mortgage or deed of trust.'

"Defendant shows that prior to the fire the insured had notice that default had been made in the payment of interest upon said incumbrance upon said property, and that because thereof the same had been advertised for sale under the provisions of the deed of trust given to secure the same, and because of said facts said policy became void and ceased to be a binding obligation against this defendant, and no recovery can be had thereon by plaintiff."

In response to a special issue submitted to them, the jury found that, before the fire occurred, appellant received information that notices had been posted of the sale of the land on which the houses were situated under a deed of trust executed by Glasco (from whom appellant purchased the land) in favor of the Reynolds Mortgage Company. On that finding "and the undisputed evidence" the court rendered judgment denying appellant a recovery of anything against appellee, and in favor of the latter for costs. Thereupon appellant prosecuted this appeal. The judgment also denied the Reynolds Mortgage Company (which became a party to the suit) the recovery it sought against appellee as the owner of indebtedness secured by a deed of trust in its favor on the land. The mortgage company did not appeal, and it is unnecessary to make further mention of it.

Allen & Perfect and W. L. Willie, all of Paris, for appellant.

Edgar Wright, of Paris, for appellee.

WILLSON, C. J. (after stating the facts as above).

In his first, second, and third assignments of error appellant complains because the trial court overruled certain special exceptions urged to the part of appellee's second amended original answer set out in the statement above.

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