Opinion
No. 3855.
June 29, 1939. Rehearing Denied July 13, 1939.
Appeal from District Court, Fannin County; Charles Berry, Judge.
The Providence Washington Insurance Company filed a bill of interpleader against Mrs. Glenn Shelton and others, and paid into the registry of the court sum of money payable under a fire policy. The City of Ladonia intervened in the suit. From a judgment relieving insurance company of further liability, awarding a personal judgment in favor of the City of Ladonia against Mrs. Shelton for taxes sued for and ordering the clerk to pay same to the city out of deposited fund and decreeing that Mrs. Shelton recover all the deposited fund except that ordered paid to the city, all the parties except the City of Ladonia appeal.
Reformed and affirmed.
A. H. Woods owned as his separate property a parcel of land in the City of Ladonia upon which there was a dwelling. The property was occupied as a homestead by Woods and his wife. A. H. Woods died intestate in 1922. His heirs at law were his surviving wife, a brother, J. F. Woods, and four children of another brother, John Woods, who had died in 1913. J. F. Woods died in 1937, and Frank Blagg and John Hulsey became independent executors of his estate. In 1924 the surviving wife of A. H. Woods married Glenn Shelton. Subsequent to the death of A. H. Woods his surviving wife continued to occupy the premises as a homestead for a time, and then abandoned the use of the same as such. On March 17, 1936, the Providence Washington Insurance Company issued a policy of fire insurance in the sum of $1500 covering the residence upon the land naming Mrs. Shelton as the insured. Later the Insurance Company filed this suit as a bill of interpleader and paid into the registry of the Court the said sum of $1500. The plaintiff named as defendants Mrs. Shelton and her husband, the children of John Woods, and the independent executors of the estate of J. F. Woods. The plaintiff prayed that the adverse claims of the defendants to the said sum of $1500 be adjudicated and it relieved of further liability upon the policy. The City of Ladonia intervened in the suit setting up delinquency in payment of taxes due the City against the land for the years 1930 to 1937, both inclusive. The City sought to have sufficient of the deposited fund applied to the payment in full of the taxes due it, with penalties, etc. It also prayed for judgment against the executors and owners of the land for such taxes, etc., and foreclosure of its statutory lien securing the payment thereof. Mrs. Shelton and husband claimed all of the fund paid into the registry of the Court and prayed that it be ordered paid to Mrs. Shelton. The executors prayed that they recover $375 of the deposited fund and the children of John Woods prayed recovery of a like amount.
The case was tried without the aid of a jury. The judgment relieved the Insurance Company of further liability under the policy and allowed it an attorney's fee of $150; awarded a personal judgment in favor of the City of Ladonia against Mrs. Shelton for all of the taxes sued for with penalties, etc., and ordered the Clerk to pay the same to the City out of the deposited fund. The children of John Woods and the executors of J. F. Woods' estate were denied any recovery. The judgment decreed that the City of Ladonia had no lien on the proceeds of the insurance policy. It was decreed that Mrs. Shelton recover all of the deposited fund except that ordered paid to the City of Ladonia.
Findings and conclusions were filed by the trial Court, and in its conclusions of law held that under its equity powers it had the right to order and require payment to the City of its taxes out of the deposited fund.
To the judgment rendered all parties in open court excepted and gave notice of appeal except the City of Ladonia. Mrs. Shelton and her husband perfected appeal by giving cost bond.
Cunningham Lipscomb, of Bonham, for appellant.
Albert L. Miller and Bell, Goode, Heinen Miller, all of Dallas, for appellee City of Ladonia.
Appellants complain of the overruling of an exception to the petition of the intervener. The exception reads: "The defendant specially excepts to the plea of intervention of the City of Ladonia and says that the petition shows no right to recover or cause of action in this suit for the reason that if there were any taxes due or payable, all tax units would be necessary parties thereto, and that the petition fails to show on its face that the State, County and School District taxes are all paid, or what amount, if any, is delinquent, and of this she prays judgment of the Court."
In support of the exception appellants cite Chapter 506, Acts 45th Legislature, p. 1494-a, Vernon's Ann.Civ.St. art. 7345b.
We doubt if the Act cited has any application whatever to this action. In any event, the exception is without merit. The petition in intervention does not disclose that there are delinquent taxes against the land due other taxing units. For this reason the exception was properly overruled. If in fact there is a defect of parties in that respect, it is a matter which appellants should have raised by plea in abatement and evidence in support thereof, as was done in Willacy County Water Control Improvement Dist. No. 1 v. Lewis, Tex. Civ. App. 119 S.W.2d 159.
The judgment rendered, however, is erroncous.
In the first place the Court erred in charging and rendering judgment against Mrs. Shelton for all of the delinquent taxes against the land.
When A. H. Woods died intestate the title to the land passed by inheritance to his heirs at law. As one of such heirs Mrs. Shelton acquired an undivided one-half interest and a homestead estate in the other one-half terminable upon her death or abandonment of such homestead right. This other one-half interest passed to the other heirs at law subject to the surviving wife's homestead right. The Court found that Mrs. Shelton abandoned the property "as a homestead as much as seven years prior to filing this suit." This finding is not challenged. It does not definitely fix the exact date of such abandonment, but from the evidence it is manifest the abandonment occurred prior to 1930.
In this condition of the title Mrs. Shelton, after abandonment of the property as a home, was liable only for the taxes chargeable against the undivided one-half interest which she owned in fee simple. She had never rendered the property for taxation, and there is no other fact which would estop her from asserting that she owned only an undivided one-half interest in the land and chargeable only with the taxes against that interest for the years 1930 to 1937, inclusive. For this reason the Court erred in rendering judgment against her for the full amount of the delinquent taxes.
The Court also erred in ordering any part of the deposited fund paid to the City of Ladonia in satisfaction of the delinquent taxes. The City had no lien of any character against the deposited fund. The Court correctly so found. Nor was there any contractual relationship between Mrs. Shelton and the City which would give to the latter any right to have any part of the proceeds of the insurance policy applied to the payment of the taxes due the City.
A policy of fire insurance "is a personal contract between the insurer and the insured, and not a contract which in any sense runs with the property." 26 C.J., Fire Insurance, Sect. 581. The same authority at Section 594 says: "One who has a mere lien only on the insured property has no claim to the insurance money realized by the insured in the event of a loss of the property, for a claim on the insurance money can arise only out of contract. But where the insured has agreed to insure for the benefit of another, who has an interest in the subject of insurance, such other has an equitable lien upon the proceeds." See also Walter Connally Co. v. Hopkins, Tex. Civ. App. 195 S.W. 656.
For the reasons stated those propositions are sustained which complain of the judgment ordering payment of any part of the taxes out of the fund deposited in the registry of the Court.
The judgment will be reformed so as to conform to the foregoing rulings and as thus reformed will be affirmed.
The Court should have established and foreclosed the City's statutory lien against Mrs. Shelton's one-half interest in the land, but this Court cannot so correct the judgment because the City presents no cross-assignment of error.
The City was also entitled to judgment against the executors and children of John Woods for the taxes chargeable against the other one-half interest in the land, with foreclosure of the City's statutory lien against said one-half interest, but this Court cannot so correct the judgment because said executors and children are co-appellees with the City and the City has not appealed from the judgment rendered.
Reformed and affirmed.