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has, or shall hereafter make or procure, any of Galveston. Some time after this, Leon & other contract of insurance, whether valid Blum transferred them back to plaintiffs. or not, on the property covered in whole or Plaintiff's made a settlement with the Amerin part by this policy"; the policy permitting ican Central for $530, receiving the amount $1,873 additional insurance on the proper'- in full settlement, surrendering the policy. ty. Defendant set up a violation of the At this time, plaintiffs disclaimed any deforegoing clause of the policy by the subse- mand against the American Central, and told quent procuring of insurance by the insured the company that they did not claim it was in the American Central Insurance Company liable, and that any amount it paid would for the sum of $2,000, having already pro- be a gratuity. The company would not pay cured insurance in the Hartford Fire Insur- anything unless the policy was surrendered. ance Co. on the same property for the amount While the policy was in the hands of Blum, of $1,875. Defendant made proof of the the company offered $500 in settlement of facts alleged. The policy in the Hartford the policy, but plaintiffs refused to permit Company, for $1,875, was issued June 21, Blum to accept the proposition. The case 1893; in the Aetna, for $1,500, October 6, was tried by the court without a jury, and, 1893; and in

in the American Central, for upon the facts, the court made his finding $2,000, dated October 13, 1893,--each policy of law as follows: "I hold that the provito run one year, and were all in force at the sions in the Aetna and Hartford against adtime all the property was destroyed by fire,

ditional insurance without the consent of said of the value $7,400, to wit, on the 230 Novem- companies was reasonable, and the language ber, 1893. The Hartford policy contained a used in the policies providing against addiclause similar to that in the policy sued on, tional insurance, except as therein allowed, and allowed $2,000 additional concurrent in- whether valid or not, indicates that the intensurance. No consent was had or given by tion of the parties to the contract was to prothe defendant company for the additional vide against any additional insurance, exinsurance taken out by plaintiff in the Amer- cept as provided in said policies, and they ican Central. The policy in the American used clear and unambiguous terms to conCentral also contained a clause similar to vey their intention, leaving nothing to judithat in the other two, reading: “This policy cial construction; and the court, in the abshall be void and of no effect if, without sence of any equitable cause shown, denotice to the company, and permission there

clines to set aside the contract made by the for îndorsed in writing hereon, the assured parties, or to frame a new one for them, shall now have, or hereafter make or procure,

but will enforce the contract as made, and any other insurance, whether valid or not, accordingly finds in favor of the defendant." on the property hereby insured, or any part Judgment was so rendered, and the plaintiffs thereof." The Hartford policy allowed or have appealed, assigning the law conclusions provided for the insurance in the Aetna; the of the court as error. Aetna allowed or provided for that in the

Field & Taylor, for appellants. Morgan & Hartford; but neither allowed the last pol

Thompson, for appellee. icy, in the American Central, and it only allowed that in the Hartford. It was written COLLARD, J. (after stating the facts). by a different agent; the other two were Appellants contend that because of the condiwritten by the same agent. At the time of tion of the policy of the American Central the issuance of the American Central policy, against other insurance, and because of the plaintiff's did not know the one in the Aetna existence of such other insurance at the very had been issued (it being a renewal, Wilson time the policy issued, it was void, and never thinking it had expired), as the agent of the at any time attached as insurance on the latter was absent. They procured the Amer- property, nor did it afford indemnity in case ican Central policy, and told the agent to al- of loss; that, the policy in the American Cenlow the insurance in the Hartford, which tral being void at the time of its issuance, was done. None of the policies were ever then the condition in the Aetna policy renin possession of the plaintiffs, having beer dering it invalid was never violated. Appelleft with the agents. When Wilson & Mose- lants quote a proposition in Wood on Insurley learned that the Aetna policy had been ance (page 586) as authority for their contenissued, they asked the agent of the Amer- tion, as follows: "A condition that, if other ican Central what it would cost to let its pol- insurance shall be obtained without the conicy run until January 1st, and then cancel. sent of the company, the policy shall be void, The agent asked why,and they replied that only relates to other valid insurance, and the they had more insurance than they wanted, policy is not avoided by the procurement of but did not tell him that the Aetna had been other policies that for any cause is invalid," renewed, nor did they notify the Aetna and -citing Thomas v. Insurance Co., 119 Mass. Hartford agents that they had taken out the 121; Jackson v. Insurance Co., 23 Pick. 418; American Central policy. The full amount : Hardy v. Insurance Co., 4 Allen, 217; Clark of insurance of all the policies was $5,375; ; v. Insurance Co., 6 Cush. 312; Kimball v. Inthe value of the goods destroyed by fire was į surance Co., 8 Gray, 33; Stacey v. Insurance $7,400. Immediately after the fire, plaintiffs Co., 2 Watts & S. 506; Geé v. Insurance Co., transferred all the policies to Leon & H. Blum, 55 N. H. 65; Obermeyer v. Insurance Co., 43 Mo. 573; Hubbard v. Insurance Co., 33 Iowa, must be enforced. There is no question in 325; Forbes v. Insurance Co., 9 Cush, 470; this case as to a waiver of the condition. We Philbrook v. Insurance Co., 37 Me. 137; Gale have but the one question whether the conV. Insurance Co., 41 N. H. 170; Insurance Co. dition in the policy included an invalid or r. Watson, 23 Mich. 486; Lindley v. Insur- void policy, and we think it does. Insurance ance Co., 65 Me. 368; Schenck v. Insurance Co. v. Blum, 76 Tex. 653, 13 S. W. 572; InCo., 24 N. J. Law, 47; Knight v. Insurance surance Co. v. Flippen, 4 Tex. Civ. App. 580, Co., 26 Ohio St. 665; Insurance Co. v. Holt, 23 S. W. 550; May, Ins. $8 364, 365. The 35 Ohio St. 189; Tyler v. Insurance Co., 12 judgment of the lower court is affirmed. Wend. 507; Sloat y. Insurance Co., 49 Pa. St. 14. These authorities all sustain the proposition announced in the text, and no fault can be found with it. It is certainly

McCOLLUM V WOOD et al.1 the law; but it does not apply to the facts of

(Court of Civil Appeals of Texas. Jan. 8, 1896.) this case. It applies to "other insurance,"

LANDLORD'S LIEN--RES JUDICATA-ESTOPPEL. not "other insurance, valid or not." The con

1. Judgment for landlord against his tendition in the policy before us was, doubtless, ant foreclosing his lien does not bind claimants intended to meet the very principle held in who were not made parties to the foreclosure

proceedings the foregoing authorities. In North Carolina

2. A landlord, by receiving money from his it has been held that a policy containing a tenant, knowing that it was part of the prostipulation against other insurance on the ceeds of the sale of produce on which he had property, "valid or otherwise," at the time of

a lien, ratifies the sale, and is estopped to as

sert his lien, as against the purchasers. its issuance, or at any other time during its continuance, without the consent of the insur

Appeal from Collin county court; M. G. er, will be forfeited if the assured, in forget

Abernathy, Judge. fulness of the fact that such other policy has

Trial of right of property between W. A. been issued, and in good faith, procures other

J. McCollum, as plaintiff, and Wood & Kinrisks on the same property without the con

kead, as claimants. Judgment for claimants. sent of the insurer. Sugg v. Insurance Co.,

Plaintiff appeals. Affirmed. 98 N. C. 145, 3 S. E. 732. It was argued in R. T. Shelton, and Miller & Williams, for that case for the plaintiffs that, although appellant. Abernathy & Beverly, and G. W. there were other insurances existing at the Wells, for appellees. time the policy was issued, they were ineffectual and void; therefore the policy sued JAMES, C. J. Casey, a tenant of appelupon was not affected by them, and remain- lant, removed five bales of cotton, which

is without substantial force. The clause of the and advances, from the rented premises, and policy sued on expressly embraced 'any other sold same to appellees. The following day insurance, valid or otherwise,' and provided appellant brought suit in justice's court that the same should render the policy void. against the tenant, and caused the cotton to The very purpose was to exclude and guard be seized by a distress warrant, and appelagainst not only subsequent valid insurance, lees filed the statutory affidavit and claim but all others supposed or intended to be bond. The suit against the tenant resulted valid."

in a judgment for $175.40 and a foreclosure The clause in the policy before us is ex- of the landlord's lien. Although it is conplicit, and was intended to cover all policies, tended that appellees appeared and made "whether valid or not." The terms of the themselves parties to this suit against the (ondition cannot be construed away. They tenant, it is clear from the record that this constituted a contract, and the courts should was not the case. This appeal is from subenforce it. It included the very policy ob- sequent proceedings in the trial of the right tained in the American Central, though it of property. The first and third assignments might have been void, and the contract assert that the court erred in not giving the should be applied as it was made. In Iowa judgment against the tenant in the original the contention of appellants was sustained. suit conclusive effect, as against the right of It was held that a policy with a clause simi- the claimant to question the existence of the lar to that in this case before us was not ren- landlord's lien on the cotton. The assigndered invalid by the existence of an unex- ments are not well taken. The lien, if it pired policy which, by its terms, was void existed at all, existed independently of the at the time the policy sued on was issued. distress proceedings, which were simply to Stevens v. Insurance Co., 69 Iowa, 658, 29 N. foreclose the lien. Unless the claimants W. 769. May, in his work on Insurance (sec- were made parties to the foreclosure protion 365), commenting on the above case, ceeding, they were not bound by it, and resays: “It is difficult to see why the words mained in a position to question the existence 'valid or not do not, in all common sense, of the lien, or to show that the cotton had cover a void policy." The only question in come into their hands under circumstances the case is, what do the words mean, and do which freed it from the lien. Appellees they include an invalid policy? There can be no doubt but that they do. The contract 1 Rehearing denied.

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bought the cotton previous to the suit. The Appeal from district court, Dallas county;
lase is different from cases where the title Edward Gray, Judge.
asserted by the plaintiff is that of the de- Action by William J. Logan and wife
Lendant in the original action, as in cases of | against the Building & Loan Association of
:attachment. In such cases, the claimant Dakota to enjoin a trustee from executing
cannot maintain that plaintiff is debarred a deed of trust. From the judgment ren-

from the benefit of such title by reason of dered, defendant appeals. Reformed and af-
defects in the attachment proceeding, and firmed.
the judgment in such proceeding is so far

Brown & Camp and C. W. Starling, for apconclusive; but the claimant would certainly

pellant. J. C. Muse, for appellees. be permitted to show, in such cases, that he had a title superior to that of the defendant

JAMES, C. J. In 1890 appellees, William in attachment. Roos v. Lewyn, 5 Tex. Civ.

J. Logan and wife, borrowed $2,000 from apApp. 593, 23 S. W. 450, 24 S. W. 538; Slade

pellant, a building and loan association, givF. La Page, 8 Tex. Civ. App. 403, 27 S. W.

ing a deed of trust on certain property in 932. In the present instance, the right of

Dallas; and in September, 1892, appellees plaintiff to the property pertained to him,

sued out a writ of injunction, restraining the and was not derived from the original de

trustee from executing same, on the ground tendant. The existence or superiority of this

that the property was a business homestead. right was the proper issue to be tried. The

In addition to this, the question of usury in evidence showed that plaintiff received from

the loan was raised. The decree canceled the tenant a part of the proceeds of the cot

the deed of trust, and perpetuated the inton. It also tends to show that plaintiff re

junction, because of the homestead feature, ceived this money with knowledge that it

found the contract to be usurious, and gave was derived from the sale of the cotton. The personal judgment in favor of the associaeonclusions of the judge show that the judg

tion, against Logan. ment was based on (among other grounds) the ground that plaintiff had accepted a part

Conclusions of Fact. of the proceeds, whereby he waived the lien.

(1) That the fact of homestead in the propWe are of the opinion that this act amounted

erty was clearly established. (2) That Loto a consent to, or ratification of, the sale,

gan, for the purpose of obtaining the loan, and estopped plaintiff from asserting his

became a stockholder in the association, to landlord's lien on the cotton in the hands of

the extent of 40 shares, of $100 each, and, as the purchasers. Affirmed.

stockholder, became obligated to pay a total
of monthly dues or installments thereon of
$24. He gave his bond or note to the asso-

ciation, separate from his contract giving BUILDING & LOAN ASS'N OF DAKOTA the lien, by which bond he was to pay to v. LOGAN et ux.

the association $4,000 on or before nine years

from date, in money, together with 6 per (Court of Civil Appeals of Texas. Jan. 22, 1896.)

cent. interest per annum on $2,000, payable

monthly in advance. The loan was $2,000, HOMESTEAD-MORTGAGE--BUILDING AND LOAX As- and the contract with the association, which

SOCIATION – USURIOUS LOAN – PAYMENTS ON
STOCK -- FORECLOSURE OF LIEN OY STOCK -- EF-

is made in reference to said bond, provides FECT.

that if said bond be paid, with interest, as 1. As Const. art. 16, $ 50, declares that no it stipulates, within the time and in the manmortgage on the homestead shall be valid, ex- ner set forth therein, it shall satisfy the concept for the purchase money therefor or im

tract, or the same may be satisfied by payprovements made thereon, a mortgage thereon to secure a loar is invalid, even though part of

ing to the association the sum of $24 on the the money loaned was used in improving the 1st day of every month, as monthly dues on property, and part was used to take up an out- said 40 shares, and the installments of instanding vendor's lien note held by the mort

terest aforesaid, and all fines which may be sagee.

2. Where defendants borrowed $2,000 from incurred, until a time when such stock should a building and loan association, and agreed to become fully paid in, and of the value of satisfy the debt by paying to the association

$100 per share, when the debt could be dis$4,000 on or before nine years, with interest, in monthly installments, at 6 per cent. per annum

charged by said stock. The obligation to on $2,000, or by paying $24 per month as month- pay the monthly dues of $24 on the stock is dues on 40 shares of stock purchased by de- existed by virtue of his status as subscriber Cendants, and said installments of interest and

to the stock. all fines, until a time when such stock should

The association had a lien upbe fully paid in, the transaction was usurious. on the stock of plaintiff for unpaid dues and

3. But it was error to credit the note ex- fines, according to its by-laws. ecuted by defendants for the loan with the amount paid in as monthly dues on the stock.

Opinion. 1. The foreclosure and sale of the association's lien on the member's stock would termi

It is contended by the appellant that the pate his liability for stock assessments.

case it offered to make at the trial would 5. In a suit to enjoin a sale under a deed

have shown the lien to be good, as against of trust given to secure said loan, defendant was entitled to foreclose its lien on said stock the homestead exemption. The state of facts for dues and fines.

sought to be introduced, and which the judge

excluded, was, in substance, as follows: The court held the contract to be usurious, Previous to the borrowing of this $2,000, and applied both the interest and stock paythere had been a loan of $7,500 from the as- ments to the principal. This is assigned as sociation to plaintiff, all of it going for im- error. The plaintiff obtained only $2,000, provements on the same premises, except and that part of the contract by which he $1,000, which went to take up an outstanding agreed to pay $4,000, in money, in nine years, , vendor's lien note,-the association taking it. with 6 per cent. interest per annum on $2,000 The later loan of $2,000 was also for the pur- for that time, if it stood alone, would unquespose of improving the premises, but the two tionably be usurious. The other plan menwere independent transactions. The court tioned in the contract for extinguishing the excluded the testimony because it was irrele- debt, to wit, by the payment of the monthly vant. Appellant's propositions in this re- stock dues, and the interest on $2,000, and spect are novel. They amount to this: That fines, until the stock should mature,-that is, a vendor's lien note being held by appellant reached its par value,-would seem at first to against the property, it is in the husband's postpone the maturity of the debt indefinitepower, regardless of the wife, to dispose of ly, and beyond nine years. But we do not the homestead to settle such debt, and that, so construe the contract. The amounts the having such power, he could lawfully give the borrower would pay in nine years, outside of person holding the vendor's lien a further the $4,000, according to the first provision, are lien to secure money borrowed for the pur- the interest on $2,000, and the stock dues and pose of improving the premises. In one of fines. This is precisely what he is required the propositions the idea is conveyed that to pay under the second provision mentioned the husband could do anything with the prop- In the one case he is to pay absolutely on or erty in order to secure an extension of the before nine years after the date of the instruivendor's lien note. In another it is claimed ment, in money, and in the other at the mathat the person holding the vendor's lien turity of the stock, by means of the stock, note has such an interest in the property as We cannot give effect to both of these proviwould authorize him, in order to enhance its sions without construing the contract to mean value or protect himself from loss, to ad- that the obligation was payable in money in vance money to erect improvements, which nine years, and that, if the stock matured in advancement would have precedence of the less time, it could be discharged earlier by homestead claim. These claims, appellant surrender of the stock, but nine years was the contends, have special force in the case of a ultimate time fixed for payment. Upon this business homestead. There were some oth- view of the contract, it was usurious. If er propositions of similar character. It has however, the contract would bear the construcfrequently been held in this state that the tion that payment was to be made in the husband may dispose of the homestead for stock when it matured, regardless of the pethe purpose of settling a subsisting incum- riod of nine years, it would nevertheless be brance thereon, provided that it is done in usurious, according to the view of the sugood faith in reference to the wife. There preme court expressed in the cases of Abbott was no evidence offered for the purpose of V. Association, 36 Tex. 467, 25 S. W. 620, and showing that the loan in question was made Association v. Biering, 86 Tex. 176, 25 S. W. to secure an extension of the vendor's lien 622, and 26 S. W. 39. At the rate of $24 per note. If it had shown this, we would not be month, the borrower would have paid in the disposed to hold that the principle just re- $4,000, the face of the stock, in 14 years, apferred to would apply when the debt is ex- proximately. If this should limit the time tended, but in no wise settled. All of the for maturity of the stock, then for the use of propositions advanced by assignments from $2,000 for that time the plaintiff would have 1 to 6 are directly in the face of article 16, paid a bonus of $2,000, and $1,680 interest § 50, of the constitution. Here the contract making $3,680 for the use of the money. which was signed and acknowledged by the This would exceed 12 per cent. per annum on husband and wife, merely evidenced a loan the sum borrowed for that period. of money secured, among other things, by a We place our decision that the contract inlien on this property. This could not create volved usury upon the ground first stated, bea lien on the property, if it was a homestead. cause the opinions of the supreme court in Lippencott v. York, 86 Tex. 281, 21 S. W. the Abbott and Biering Cases seem to us to be 275; Ellerman v. Wurz (Tex. Sup.) 14 S. W. based on a misapprehension of the main fact 333. The fact that the money went to im- upon which those decisions rest. In the Abbott prove the premises, and that it was intended Case the court says: “The note was to fall due to be so used when borrowed, makes no dif- at the maturity of the stock. If there was no ference in the case. The husband alone, or profit on the shares, the payment of one dolthe husband and wife together, could give lar per month for two hundred months would no lien on the property, while it continued to make each share worth $200, which would bear the homestead character, except in the mature the stock, and the note become paymanner provided by the constitution. The able at that time. The by-laws secure to court did not err in excluding the testimony, each shareholder the right to withdraw at any and in decreeing that under the evidence the time so much as he may have paid in on its lien did not exist.

hence, there could be no loss to the stockholdv.33s.w.no.10469

er, and the time of maturity of stock and note the sum due, and charges upon the stock. could not be postponed beyond two hundred We see no reason why the defendant was not montis." This would clearly be, if there had entitled to a foreclosure on the stock, to the been a by-law giving Abbott or Biering the extent prayed for; and in this respect, also, right at any time to withdraw what had been the judgment will be reformed. paid in. The by-law which the opinion re- The constitutional objections to the judg. fers to is copied in the report of the case, and ment of the district court will be noticed only gives such right to a stockholder only who so far as to state that they are without merit. has not pledged his stock to the corporation. Reformed and affirmed accordingly. Abbott and Biering had both pledged their stock. No question of usury could, under the

On Rehearing. by-laws, in those cases, have occurred be

(Feb. 12, 1896.) tween a stockholder who had not pledged his

Appellant quotes from Endlich on Building stock, and the association, because he would

Associations the first part of section 332. not be a borrower. The reasoning in the

This consists of the individual view of the cases mentioned turns upon what seems to us

author, the correctness of which we do not to be a misconception of fact, and we are

question, where there are statutes regulating therefore not sure that the opinions in those

the business of such associations, and the procases are conclusive of the questions that they visions of which control contrary provisions decide. The by-laws in the record before us,

in the contract. When we look to the balas in the Abbott and Biering Cases, allowed

ance of said section, and to other portions of the subscriber to stock the privilege of with

his work which he refers to, it seems that his drawing at any time what he had paid in on

expression must refer to that state of case in it, but excluded from this privilege members

section 420 et seq. In the case before us, the who have their stock pledged to the associa

statute of Dakota relating to such corporation. If, however, the opinions in those cases

tions, if any, is not shown. We have no such declare the correct conclusion as to usury,

statute; hence, we must apply the same rules they furnish an additional reason for holding

as in any other class of contracts. The mothe present contract usurious. The court, in

tion is overruled. the present case, held that the entire transaction was a scheme to obtain usurious interest, and that the monthly dues upon the 40 shares of stock were in reality a contrisance to get

JAYNE et al. v. HERRING. that much inore for the use of the money.

(Court of Civil Appeals of Texas. Jan. 22, We do not believe this conclusion to be war

1896.) l'anted. The plaintiff took the 10 shares of

APPEAL-EVIDENCE-ADMISSION ON TRIALstock, became a member of the association,

RECORD. and, as a member, was required to pay these

In an action on an obligation to hold a installments on stock, by virtue of the by-law

party harmless from payment of all cost which and his membership. The evidence presents

he may be adjudged to pay in consideration of

his taking an appeal, from a judgment renderthe ordinary case of the separate relation as ed against him, for which the obligor was restockholder and borrower in such an associa- sponsible over to him, the citation alleged that tion. Association v. Lane, 81 Tex. 369, 17 S.

plaintiff had paid certain costs in accordance W. 77. That he wanted a loan, and took the

with the judgment of the supreme court. Held,

that an admission that plaintiff had paid the stock in order to get the loan, would make no several items of costs at the time and as alleged clifference in the fact that he became a stock- in the citation was sufficient to show that the holder, and assumed the obligations of such.

supreme court had finally determined the case

in which the appeai was taken. The court, consistently with its view in this

On Rehearing. regard, credited the note with the monthly payments that had been paid in, as if it had

Where, on ppeal to the county court, been interest. This we believe was error,

the citation is treated as plaintiff's pleading to

which the demurrers were directed, and defendand the judgment will be reformed accord

ant admits certain statements set out in the ingly. We are of opinion, however, that a “citation," the citation on appeal from the counforeclosure and sale of the association's lien

ty court becomes a part of the record, without

being incorporated in the statement of facts. on the member's stock would terminate his liability for stock assessments. After that he

Appeal from Limestone county court; W. would no longer be a stockholder. Up to the

G. Rucker, Judge. time of foreclosure, the dues would continue

Action by E. Herring against A. E. Jayne

and another. There was a judgment for to accrue, and, if asserted and prayed for in

. the defendant's pleadings, should be adjudged plaintiff, and defendants appeal. Afkrmed. in its favor. The answer in this case avers Cobb & Jackson, for appellants. Doyle & a lien on the stock for unpaid dues and fines, Bradley, for appellee and prays for the same as they accrue up to the trial. The contract shows that the stock JAMES, C. J. The following obligation was pleuged as security for the debt. The was sued on: "E. Herring versus R. W. by-laws show the lien to exist on the stock for Swaim et als. Groesbeeck, Limestone Coununpaid dues and fines, and there is a prayer ty, Texas, April 7, 1890. Whereas, in the for a foreclosure of the lien on the stock of above-entitled (ause, pending in the district

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