Union Assur. Soc. v. Equitable Trust Co., 12716.

• Decision Date: 24 June 1933
• Docket Number: No. 12716.,12716.
• Citation: 63 S.W.2d 869
• Parties: UNION ASSUR. SOC., Limited, et al. v. EQUITABLE TRUST CO. et al.
• Court: Texas Court of Appeals

63 S.W.2d 869

UNION ASSUR. SOC., Limited, et al. v. EQUITABLE TRUST CO. et al.

No. 12716.

Court of Civil Appeals of Texas Fort Worth.

June 24, 1933.

Rehearing Denied September 30, 1933.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by the Equitable Trust Company and others against the Union Assurance Society, Limited, and another. From an adverse judgment, the named defendant appeals.

Affirmed.

See, also, 58 S.W.(2d) 58.

Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for appellants.

Smith & Smith, of Fort Worth, and Benjamin Chilton, of Dallas, for appellees.

DUNKLIN, Justice.

The Union Assurance Society, Limited, has appealed from a judgment rendered against it in favor of the Equitable Trust Company, a corporation, and Hugh L. Pope, trustees, and the Calvert Mortgage Company on a fire insurance policy hereinafter noted.

The case was tried before the court without a jury, and the facts hereinafter related appear in the findings of fact and conclusions of law filed by the trial judge.

On May 29, 1928, the Union Assurance Society, Limited, executed and delivered to W. T. Casstevens, the owner of a dwelling house, an insurance policy against loss or damage of the house by fire in the sum of $3,000. The policy is what is known as the Texas standard form of policy, and contained the usual provisions that it would be void should the assured thereafter procure any other contract of insurance upon the same property unless otherwise provided by agreement of the insurance company. The policy contained these further provisions:

"This policy, as to the interest herein of the said payee as mortgagee or trustee only, shall not be invalidated by any act or neglect of the mortgagor or owner of the above described property, or by commencement of foreclosure proceedings, nor the giving of notice of sale relating to the property, nor of any change in the interest, title or possession of the property, nor by any increase in hazard; provided that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee or trustee shall on demand pay the same; and provided further, that the mortgagee or trustee shall notify this company of the commencement of foreclosure proceedings and of any notice of sale relating to the property, and of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee or trustee, and unless permitted by this policy the same shall be noted thereon and the mortgagee or trustee shall on demand pay the premium for any increased hazard.

"Failure upon the part of the mortgagee or trustee to comply with any of the foregoing obligations shall render the insurance under this policy null and void as to the interest of the mortgagee.

"In case of any other insurance upon the within described property, this company shall not be liable to said mortgagee or trustee under this policy for a greater proportion of any loss or damage to the within described property, than the amount hereby insured bears to the whole amount of insurance on said property, payable to, held or consented to by said mortgagee or trustee.

"Upon payment to such mortgagee or trustee of any sum for loss or damage hereunder if this company shall claim that as to the said mortgagor or owner no liability existed, it shall to the extent of such payment be subrogated to the mortgagees or trustees right of recovery and claim upon the collateral to the transferred debt, without impairing the mortgagees or trustees right to suit, or it may pay the mortgaged debt and require an assignment thereof, and of the mortgage."

On July 13, 1928, Casstevens sold the dwelling house and the lot on which it was situated to J. J. Prentice, and at the same time assigned to the purchaser his interest in the fire insurance policy, with the knowledge and consent of the Union Assurance Society, Limited. On July 17, 1928, which was four days after that conveyance, Prentice, joined by his wife, executed two certain mortgages upon the property so acquired to the Murray Investment Company to secure the payment of one note for $2,750 and another note in the sum of $166.80, both of said notes being payable in monthly installments. Both of those mortgages were duly recorded in Tarrant county, where the property was situated. Thereafter, on July 25, 1928, the Union Assurance Society, Limited, executed and delivered a mortgage clause or rider stipulating for the payment of loss or damage by fire under that policy to the Murray Investment Company as mortgagee. That rider embodied the same provisions as those quoted above from the policy as originally written, with the further stipulation that it was attached to, and formed a part of, that policy. On the 27th of July, 1928, the Calvert Mortgage Company entered into a contract with the Murray Investment Company to purchase the notes above secured together with the mortgage liens securing the same, and on the same date the Murray Investment Company, at the direction of the Calvert Mortgage Company, transferred and assigned the notes and liens to the Equitable Trust Company and Hugh L. Pope, trustees; that assignment was likewise duly recorded in the deed records of Tarrant county. The agreement of the Calvert Mortgage Company for the Murray Investment Company to so assign those notes and lien was under and by virtue of the deed of trust of date July 1, 1926, executed by the Calvert Mortgage Company to the Equitable Trust Company and Hugh L. Pope, trustees, to secure the payment of certain bonds of the Calvert Mortgage Company payable to bearer, and which bonds were guaranteed by the Maryland Casualty Company.

The Union Assurance Society, Limited, issued and attached to the insurance policy above mentioned another rider as a part thereof in favor of the Maryland Casualty Company, the Calvert Mortgage Company of Baltimore, and the Murray Investment Company in like terms with the first rider above referred to. The notes so given by J. J. Prentice to the Murray Investment Company, together with the two mortgage liens above mentioned, are now owned and held by the Equitable Trust Company and Hugh L. Pope, trustees, and at the date of the trial of this case in the court below there was due thereon the sum of $2,750 principal and $823.48 interest.

On August 27, 1928, J. J. Prentice, joined by his wife, sold and conveyed the lot and dwelling to Harris Smith; that deed was duly recorded in the deed records of Tarrant county on September 22, 1928. On September 17, 1928, which was five days before the filling of that deed, the Retailers' Fire Insurance Company executed and...