gal. It would be paradoxical and irrational identify Mrs. Crawford furnishes such corto say that one's present lawful act becomes roboration of Mrs. Crawford as to make it unlawful because accompanying the lawful clear, satisfactory, and convincing that she purpose is the intention to do something was not served. It does not so appear even which alone would not have authorized the from her own testimony, because she admits lawful act. To so hold would create, in cas- knowing about the suit, and first declares es like the present proceeding, conditions she does not believe she was served, and fraught with unjust and inequitable possibil- later says an officer neither visited nor servities to those acquiring property from survived papers upon her, and we cannot see how ing spouses which had been sold to pay community debts, and would have the effect of requiring them not only to ascertain that the property was sold or mortgaged for the purpose of paying community debts, but, after ascertaining that community debts actually had been paid, would require them to ascertain any secret motive with reference to the use of the surplus which may have induced the survivor to exercise the unquestioned legal right. [6] The existence of community debts authorizes the conveyance of community property. Wenar v. Stenzel, 48 Tex. 488. [7] The authority to sell is general, and those dealing with the survivor are under no duty to see that the funds are applied properly. Sanger Bros. v. Moody, 60 Tex. 96. [8] The presumption of good faith attends such sales, and the disproportion between the value of the property sold and the debt, in the absence of fraud, is unimportant. Manchaca v. Field, 62 Tex. 135. Plaintiff in error Mrs. Lucy M. Crawford, defendant in the court below, but who made common cause with plaintiffs in error, assigns as error in this court the action of the trial court in directing verdict against her. Among other issues raised by her, as we have shown, was the claim that she was not served with citation in the Gibson suit, and that hence the default judgment as to her was void. Mrs. Crawford testified in that respect as did the officer who executed the process. We have stated the facts deducible from the evidence of both. The effect of the officer's statement is that the person served by him at Mrs. Crawford's residence represented herself to be Mrs. Crawford. The statement of Mrs. Crawford, in effect, is that while she remembers when the case was about to be called that she was never served with citation by an officer. [9] The rule with reference to the sufficiency of evidence to contradict an officer's return is that the evidence must be clear and satisfactory, and not, like the ordinary issue of fact, determined by a mere preponderance of the testimony, but by convincing proof. [10] The return may not be impeached by oath against oath. Randall v. Collins, 58 Tex. 231. [11] It is obvious, we think, that the evidence in the present case falls short of being clear, satisfactory, and convincing. At most it is oath against oath. We are unable to agree that the failure of the officer to the failure of the officer to identify her furnishes such, corroboration for her statements as to bring the proof within the rule. The reasons why such evidence is insufficient are stated at length in the case cited, which is our ruling case, and for that reason we omit any discussion of the fundamentals of the rule. Finding no reversible error in the record, the judgment is affirmed. MODERN ORDER OF PRÆTORIANS v. (Court of Civil Appeals of Texas. Austin. 1. INSURANCE 268-FALSE WARRANTIESMATERIALITY. In the absence of a statute to the contrary, false representations in an application for insurance, which the applicant warrants to be true, will avoid the policy, without reference to the materiality of such statements. 2. INSURANCE 723(2) FRATERNAL HEALTH AND ACCIDENT-FALSE REPRESENTATIONS-MATERIALITY. - In view of express repeal by Acts 33d Leg. c. 113 (Vernon's Sayles' Ann. Civ. St. 1914, arts 4827-4859a), of Acts 31st Leg. (1st Called Sess.) c. 36, requiring false representations to be material in order to avoid policy in fraternal order, and in view of construction of Rev. St. 1911, art. 4947, providing that misrepresentation, to avoid the policy, must be material, so as to except fraternal orders, the common-law rule applies to fraternal policies. 3. INSURANCE 825(1)-FRATERNAL-FALSE WARRANTIES-PEREMPTORY INSTRUCTION. Where insured made false representations in application for fraternal accident policy regarding previous sickness and swellings, which he warranted to be true, a peremptory instruction for the insurer should have been given. Error from Coryell County Court; H. E. Bell, Judge. Action by John E. Davidson against the Modern Order of Prætorians. Judgment for Rėplaintiff, and defendant brings error. versed, and judgment rendered for defendant. Chas. B. Braun, of Waco, and Lewis M. Dabney, of Dallas, for plaintiff in error. T. R. Mears, of Gatesville, for defendant in error. Findings of Fact. JENKINS, J. Plaintiff in error is a fraternal insurance association. It issued to defendant in error a certificate of insurance which provided, among other things, that for the loss of a foot it would pay him $500. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes He lost a foot by amputation, following an injury to same caused by tripping over a wire. The application for insurance, which was signed by defendant in error, provided that his answers therein made, with reference to his health and to diseases, injuries, and accidents which he had had, should be taken as warranties, and that if any such answer was untrue the order should not be liable to him in any amount. Judgment was rendered for defendant in error for $500. Opinion. [1] In the absence of a statute to the contrary, false representations in an application for insurance, which the applicant warrants to be true, will avoid the policy, without reference to the materiality of such statements. Insurance Co. v. Pinson, 94 Tex. Defendant in error also signed, the follow- 553, 63 S. W. 531; Brock v. United Moderns, ing certificate: "I hereby certify that all the answers to the foregoing questions propounded to me by the local medical examiner, and statements made by me in the foregoing, are true as set down." The certificate of insurance contained, among other things, the following: "Provided that this order shall not be liable for the payment of any sum hereunder, unless said member has fully complied with all of the terms and conditions of its constitution and bylaws, and has not untruthfully answered any questions, or made any untruthful statements to the medical examiner of the order, upon the faith of which this certificate is issued." In his application for membership, defendant in error made, among others, the following answers: "Question: "Have you now, or have you ever had, any of the following diseases? Answer 'Yes' or 'No.'*** Swellings of any kind?" To which defendant in error answered: "No." Question: "Have you now, or have you ever had, any diseases not mentioned? If so, name them, giving date." To which defendant in error answered: "No." Diphtheria, measles, typhoid fever, and tonsilitis were not mentioned in the questions propounded to defendant in error. 36 Tex. Civ. App. 12, 81 S. W. 340; Ins. [2] Article 4947, R. S., Act 1903, provides that a misrepresentation to avoid a policy must be material to the risk. In Prætorians V. Hollmig, 105 S. W. 846, Reppond v. Nat. Life Ins. Co., 100 Tex. 519, 101 S. W. 786, 11 L. R. A. (N. S.) 981, 15 Ann. Cas. 618, it was held by our Supreme Court that this article did not apply to fraternal insurance. By reason of this decision, the Legislature in 1909 (chapter 36, p. 359) made substantially the same provision as to fraternal insurance as was provided in article 4947, in reference to other insurance. Mystic Circle v. Hansen, 161 S. W. 56. In 1913, the Legislature expressly repealed chapter 36, supra (chapter 113, p. 220), and made no provision in reference to misrepresentations in fraternal insurance. Thus the law in this state in reference to misrepresentations in an application for fraternal insurance is as it was when Prætorians v. Hollmig was decided, and as it is at common law. [3] Defendant in error having made rep tificate herein sued on in regard to his previous sickness and swellings, which he warranted to be true, but which were untrue, the trial court should have peremptorily instructed the jury, as requested by plaintiff in error, to return a verdict for the defendant. Defendant in error's foot was amputated in a sanitarium at Temple, Tex., in February, 1916. At that time he made the follow-resentations in his application for the cering statement as to the history of his case: "Twenty years ago while jumping I injured the right foot, it became swollen and pained me and I was unable to walk on it for a year. The foot has been tender since then and I have had to limp, but did not have to use crutches. I had typhoid fever about thirteen years ago and was in bed with foot again for about two weeks. This cleared up and the foot was about the same as before. Nine years ago I was in the room six or eight weeks and unable to walk without crutches for four months. Four months ago the foot became swollen and pained 'me considerably again. I have been on crutches now for two months, and the foot does not seem to get any better. When I was three years old I had the diphtheria. About twenty years ago I had typhoid fever. I have had the measles. I have also had tonsilitis, have had trouble with tonsils, a great many winters." Defendant in error admitted upon the trial of this case that the statements made by him to the sanitarium were true. We quote from his testimony as follows: "When I made the statement in the application that I had not had any diseases, except those mentioned, I suppose that was not true and correct. When I made the statement in the application that I had not had any swellings of any kind, I suppose that was not true and correct." It is unnecessary for us to pass upon the other assignments of error. For the reasons stated, the judgment of the trial court is reversed, and judgment is here now rendered for plaintiff in error. Reversed and rendered. CLARK et al. v. MUSSMAN. (No. 5887.) Austin. newed obligation was barred by limitation, held defendant W. C. Clark on December 23, 1907, sufficient. Error from District Court, Travis County; Geo. Calhoun, Judge. Action by William Mussman against W. C. Clark and another. Judgment for plaintiff, and defendants bring error. Affirmed. Hart & Patterson, of Austin, for plaintiffs in error. W. L. White, of Austin, for defendant in error. and the time of payment of said note by said renewal instrument extended to June 30, 1911. That said renewal was duly signed and acknowledged by said Haschke and Clark, but was not filed for record in the county clerk's office of January 20, 1916, and that the same was reTravis county, Tex., or anywhere else, until corded in proper form and in the proper record book in said county clerk's office on January 24, 1916. That the note sued upon and the lien of said deed of trust of June 30, 1900, were also renewed in writing by the defendants W. C. Clark and wife, S. B. Clark, on October 30, 1911, and the time of payment of said note KEY, C. J. This is an action to recover up- by said renewal instrument extended to October on a promissory note and to foreclose a lien 30, 1914. That said renewal was duly signed upon certain real estate; the plaintiff being and acknowledged by W. C. Clark and wife on the date it was given, but was not filed for recWilliam Mussman, and the defendants being ord in the county clerk's office of Travis county, W. C. Clark and his wife, S. B. Clark. The Tex., or anywhere else, until January 20, 1916, plaintiff recovered in the trial court, and the and that the same was recorded in proper form defendants have appealed. The case is sub- clerk's office on January 20, 1916. and in the proper record book in said county sub-clerk's That no mitted in this court upon a written agree- other renewal or extension of the note sued ment approved by the trial judge, which, after stating the substance of the pleadings, reads as follows: "It is agreed that the only issues in this case are whether, under the facts in this case, plaintiff's cause of action and right to recover upon said note, also his right to foreclose his lien securing the payment of said note, are barred by the above-mentioned Acts of the Thirty-Third Legislature, or, in other words, whether plaintiff's cause of action and right to recover upon said note is barred by said Acts of the ThirtyThird Legislature and whether his right to foreclose the lien claimed by him securing the payment of the note sued upon is barred and cut off by said Acts of the Thirty-Third Legisla ture. "It is agreed that the following facts were proven: That the note sued upon was given by Wm. Haschke and Ernestine Haschke to Mrs. Franziska Von Boeckmann, on June 30, 1900, and by its terms was due five years after date, and that no part of said note has been paid, except interest to October 31, 1914. That at the time said note was given its payment was secured by a deed of trust, dated June 30, 1900, given by Wm. Haschke and wife, Ernestine Haschke, to Theo. P. Meyer, as trustee, Mrs. Franziska Von Boeckmann, beneficiary, on lot No. 7, block 58, division E of the outlots of the city of Austin, Travis county, Tex., and lot No. 2, outlot 13, division B of the city of Austin, Travis county, Tex. That said deed of trust was duly signed and acknowledged by Haschke and wife on June 30, 1900, and filed for record in the county clerk's office of Travis county, Tex., on July 3, 1900, and duly and properly recorded in said office on July 9, 1900. That the defendant W. C. Clark purchased the lots covered by said deed of trust on October 16, 1903, and assumed on October 16, 1903, in the deed to him for said lots, the payment of said note. That said note and the lien of said deed of trust securing its payment was duly assigned and transferred by Mrs. Franziska Mittman (formerly Mrs. Franziska Von Boeckmann, she being a widow at the time the note and deed of trust were given to her, and afterwards intermarried with J. A. Mittman), joined by her husband, J. A. Mittman, to the plaintiff, on November 2, 1911. That said transfer was duly signed and acknowledged by Mrs. Mittman and her husband on the day the same was executed and duly filed for record in the county clerk's office of Travis county, Tex., on November 7, 1911, and recorded on the same day. That the note sued upon and the lien of said deed of trust of June 30, 1900, was renewed in writing by Wm. Haschke (one of the original makers of said note and deed of trust) and the upon and the deed of trust and the lien securing its payment was at any time made or given by any one, except that of December 23, 1907, and October 30, 1911, mentioned above, and that neither of said renewals and extensions was filed for record in the county clerk's office of Travis county, Tex., until January 20, 1916, and was not recorded until January 24, 1916. That the defendant Mrs. S. B. Clark was a married woman and wife of the defendant W. C. Clark at the time she signed the renewal of October 30, 1911, and has continuously remained a married woman and wife of said W. C. Clark from October 30, 1911, to the trial of this case, and is now a married woman and wife of the defendant W. C. Clark. That this suit was filed by the plaintiff on February 23, 1916, and is the only suit that has been filed by plaintiff, or any one else, upon the note and deed of trust involved in this suit, and that no other suit has been filed to recover upon said note or to foreclose the lien. That the lots described in plaintiff's petition and upon which he claims to have a lien securing the payment of the note sued upon are situated in Travis county, Tex." As indicated by the foregoing statement, plaintiff in error's contention is that both the debt and lien are barred by the Acts of the Thirty-Third Legislature referred to in the statement. Those acts are set out in full in the opinion of this court in Cathey v. Weaver, 193 S. W. 490, and, as they are rather voluminous, we shall not copy them in this opinion. They were enacted and became operative in 1913, prior to which time, and on October 30, 1911, appellants had in writing renewed their obligation to pay the debt and the lien by which it was secured, and the payment of the debt had been extended to October 30, 1914. True it is, the instrument evidencing the contract of such renewal and extension of time was not recorded until January 20, 1916, which was about one month before this suit was commenced, but the provision of the statute requiring such contracts of extension to be filed for record does not prescribe that such filing shall be forthwith, or at any particular time, and as the contract here involved was filed for record before the renewed obligation to pay the debt was barred by limitation, and before the suit was commenced, and as the right of no third person is in volved, we hold that, as between the parties to the contract, neither the debt nor lien was barred by that or any other statute of limitations. This is the only question presented for consideration, and it being decided against plaintiffs in error, it follows that the judgment should be affirmed; and it is so ordered. Affirmed. policy issued on the 14th day of March, 1914, was for an amount not to exceed $1,850, $1,500 of which covered the stock of merchandise, and $350 covered the office furniture and fixtures, etc. The policy issued July 6, 1914, was for an amount not to exceed $1,250, and covered the stock of merchandise. The property was destroyed by fire on the 18th day of July, 1914, and appellees alleged that by reason thereof they suffered on the stock of merchandise a loss of $2,932.19, and on DETROIT FIRE & MARINE INS. CO. v. fixtures, etc., $275.50. They further alleged BOREN-STEWART CO. et al. (Court of Civil Appeals of Texas. Dallas. 1. INSURANCE 328(5)-CHANGE OF TITLECONTRACT. An agreement to sell insured stock of goods if insurance company would transfer the insurance to the purchaser, not carried out because the insurance company refused to make the transfer, is not a change in the interest or title or possession of the property, within the meaning of a policy provision avoiding the policy in case of such change. 2. INSURANCE 654(1)-CHANGE OF POSSES that they were the owners of the property destroyed, and that due notice was given of the loss claimed in accordance with the terms of the policies. The defendant answered with general and special denials, and with the following special pleas: (1) That the policies sued on each contained a provision to the effect that the entire policy shall be void if any change other than by the death of the assured take place in the interest, title, or possession of the subject of the insurance, whether by legal process or judg ment, or by voluntary act of the insured, or otherwise; that, notwithstanding said provision of said policies, the plaintiffs, after the execution and delivery of said policies, and before the fire, to wit, about the 6th day of July, 1914, in consideration of the sum of $1,500, sold and delivered all of the property to E. H. Cornwell, or E. H. Cornwell & Son, a partnership; that at the time of the fire E. H. Cornwell & Son were in the exclusive possession and control of the property, and were the legal owners thereof, and no consent of the defendant thereto had been obtained, and no transfer of said insurance had been made to said new owners at the time of the fire; that by reason thereof both of said policies were absolutely void at the time of the fire, Appeal from District Court, Dallas Coun- and defendant is not liable to plaintiffs on ty; W. F. Whitehurst, Judge. Action by Boren-Stewart Company and others against Detroit Fire & Marine Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed. E. G. Senter, of Washington, D. C., for appellant. Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for appel lees. TALBOT, J. The appellees Boren-Stewart Company, a corporation, and Sanger Bros., a copartnership, sued the appellant Detroit Fire & Marine Insurance Company, upon two policies of fire insurance which had been issued by appellant on the 14th day of March, 1914, and on the 6th day of July, 1914, respectively, whereby the appellees' stock of merchandise and office furniture and fixtures, etc., were insured against all direct loss and damage by fire for the period of one year from the respective dates of said policies, while located in a certain building in the town of Ferris, Ellis county, Tex. The either of them. (2) That the consideration for which the plaintiffs sold said property to said Cornwell or Cornwell & Son was the sum of $1,500, and, had said fire not occurred, all they could have realized would have been the sum of $1,500; that it would be against the letter and spirit of said policies, and against public policy, to allow the plaintiff to recover more by reason of said fire than they could have recovered without said fire, if said defendant be mistaken in contending that the title to said property had passed to said purchaser or purchasers, and said policies had been made void thereby, then in no event can defendant be liable to plaintiffs exceeding the sum of $1,500, less the salvage. (3) That defendants had breached the record warranty clause of each of the policies relating to the keeping of books and inventories of the stock, and therefore the policies were void. (4) That the right of cancellation of the policies was retained and duly exercised before the fire. (5) That the defendants had always been ready to pay to plaintiffs the amount of the premiums upon | Cornwell and his son, Guy Cornwell, wanted the policies, and plaintiffs had refused to ac- to buy it. They looked at the property, T. E. cept the same. Blanchard representing the appellees, offerThe appellees, by supplemental petition, re-ed it to Cornwell and son at $2,500. This ofplied to appellant's special pleas. The court submitted the case to the jury upon special issues, and they made the following findings: That the actual cash market value of the stock of merchandise described in the policies immediately before the fire, on or about July 19, 1914, at place of said fire, was $1,660; that the actual cash market value of the furniture and fixtures described in the policies immediately before the fire, on or about July 18, 1914, at place of said fire, was $300; that the actual cash market value of the merchandise saved from said fire was $145; that the actual cash market value of the furniture and fixtures saved from said fire was $145; that the plaintiffs substantially complied with the record warranty provision of each of the policies sued upon. Upon these findings judgment was rendered in favor of the appellees for the sum of $1,571.70. Appellant filed a motion for a new trial, which was overruled, and the case is now before this court on writ of error. The first assignment of error complains of the trial court's refusal to give a special charge requested by appellant directing the jury to return a verdict in its favor. The proposition advanced under this assignment is as follows: "Said motion should have been granted because the undisputed evidence shows that there was a change of title, interest, and possession of the subject of the insurance after the policies were issued and before the fire of such a nature as to make the policies void, in accordance with their provisions to that effect." [1] If, as here contended, the undisputed evidence showed such a change of title, interest, and possession of the property insured after the issuance of the policies, and before the fire, as rendered the policies void under their terms, the peremptory instruction requested should have been given. We do not, however, agree to the proposition of appellant that such a change was effected. On the contrary, we think the evidence shows, as asserted by appellees, simply an agreement between the assured and third parties, namely E. H. Cornwell & Son, to the effect that the insured property should be sold to such to such third parties upon condition that the insurance company carrying the insurance on the property would agree to transfer the policies to such proposed purchasers, and that prior to the fire which destroyed the property the insurance company refused to so transfer the policy. Such an agreement, in our opinion, does not constitute a change in the interest or title or possession of the property, within the meaning of the fire insurance contracts sued on. It would extend this opinion to too great length to quote the testimony bearing upon the question in full. The substance of it is that the appellees desired to sell the property insured, and E. H. He fer the Cornwells refused, but offered $1,500 for the property. Blanchard at first declined to accept the offer of $1,500, but later, and after seeing Mr. Jenkins at Sanger Bros., agreed to take it. On July 6, 1914, the Cornwells went to Blanchard's office, and there Blanchard took Cornwells' notes for $1,500, with the understanding that the sale of the property could not and would not be consummated unless the insurance company would transfer the insurance policies to the Cornwells. Blanchard, after taking the notes, went to see Mr. French, who had charge of appellees' insurance, and French was not in his office. Blanchard returned, and told Cornwell that he could not "close the deal that day," for the reason that he did not know whether or not he could get the insurance transferred to him; that, unless he could get the insurance transferred, appellees did not want to make the sale. further said Guy Cornwell (the son)business, get the stock ready for business, and "could go down there to Ferris, and open the begin selling goods with this understanding; that if we could get the insurance transferred to E. H. Cornwell & Son that the deal was closed, son, took in down there he could make a report but, if we could not, all the cash that Guy, the of to us, and the cash would belong to us, after we paid him for his expenses and paid him for his time. Mr. Cornwell executed the notes for the $1,500, and I agreed with him to hold them on my desk and make no entry of the notes until we had determined the insurance matter, and found out definitely whether we could get the insurance transferred or not. I kept the question with Mr. Cornwell again, and said: notes on the desk in my office. I raised the Let us understand that the stock belongs to the Boren-Stewart Company and Sanger Bros., and you are simply representing these companies, transferred, because we do not want to sell it to until we can get the insurance on the stock you otherwise. We do not want to sell to you on a credit with the understanding that the notes will be paid out of the stock or the sales chandise insurance in your name.' That is the of the merchandise unless we can get that merlast word we had. Guy went down there, took charge of the stock of goods, according to my information, kept a record, and reported to us for the goods. He was to report to us if for any reason the deal was not consummated, and we were to pay him for his services while there. I do not remember whether Mr. French came back to the office the next day or not, but the matter came in he asked me, 'What about the Ferris was on my desk for several days. When he matter? Do you still want that insurance?' I Cornwell & Son, at Ferris.' I told Mr. Cornsaid, 'No; we want that transferred to E. H. well that I would try to have those policies transferred to E. H. Cornwell & Son, and that, if they were not transferred the property was to remain in Boren-Stewart Company and Sanger that Mr. French reported to me that Mr. HolBros. I think it was Thursday before the fire land, the insurance agent, would not transfer the policies to Cornwell & Son. I phoned to Mr. Holland, the insurance agent, and Holland also asked Mr. Holland to transfer the policies said, 'I can't transfer the policies.' Mr. French to E. H. Cornwell & Son, and Holland told him |