
    WINFREY v. GIRARD FIRE & MARINE INS. CO.
    No. 5724.
    Supreme Court of Texas.
    May 16, 1931.
    A. A. Winfrey, of Dallas, Austin C. Hatch-ell; of Longview, and John Davis and P. D. Crawford, both of Dallas, for plaintiff in error.
    E. G. Senter and M. H. Baughn, both of Dallas, for defendant in error.
   HARVEY, O.

This suit was brought by the plaintiff in error, A. A. Winfrey, against the defendant in error, the Girard lire & Marine Insurance Company, to recover on a fire insurance policy covering certain household furniture. The case was tried without a jury, and judgment was Rendered for Winfrey for the amount of the policy, with interest. The Court of Civil Appeals reversed that judgment and rendered judgment for the insurance company. 26 S.W.(2d) 701. Winfrey was granted the writ of error.

The material facts are undisputed. They are substantially as follows:

The wife of A. A. Winfrey died in January, 1928, leaving a will which was duly probated. By the will, she devised and bequeathed one-half of all her property to Winifred Ford, her minor daughter by a former marriage, and to Winfrey the other half, during his life, with reversionary interest to Winifred Ford. At the time Mrs. Winfrey died, she and her husband owned, among other property, the household furniture involved in this controversy. .A piano and a few other pieces of the furniture were owned in sever-alty by Mrs. Winfrey in her separate right; all the rest belonged jointly to the separate estate of Mrs. Winfrey and the community estate of her and her husband, A. A. Winfrey. After Mrs. Winfrey’s death, Winifred Ford was taken into the home of one Edwards, who had been duly appointed guardian of her person and estate by the probate court of Dallas county. Winfrey was duly appointed administrator of the estate of his deceased wife. Winfrey and Edwards, the guardian, entered into an oral agreement to the effect that, in exchange for Winifred’s interest in said furniture, Winfrey would give $60 cash and the life interest in certain real estate devised to him by the will. Winfrey paid the guardian the $60 in cash, as called for ;by the agreement, and Winfrey considered the trade closed. The probate court never authorized Edwards, the guardian, to sell or exchange any of the personal property belonging to Winifred; nor did said court ever authorize or approve the above transaction which occurred between Winfrey and . the guardian. Subsequent to said transaction, Winfrey took out the fire policy in controversy, by the terms of which the insurance company insured Winfrey against loss on account of the destruction of the above-mentioned furniture by fire. The policy contained the following stipulation: “This entire polity, unless otherwise provided by agreement endorsed herein or added hereto, shall be void if the interest of the insured in the property be other than unconditional and sole ownership.”

Some three months after the policy issued, the furniture was destroyed by fire. The insurance company rejected Winfrey’s claim for indemnity on the ground that the interest of the latter in the furniture, at the time the policy issued, was not unconditional and sole ownership, in that Winifred Ford owned a substantial undivided interest therein. Later a suit was filed in the district court of Dallas county, by Winifred Ford, acting through her said guardian, against A. A. Winfrey. The next day after said suit was filed, an agreed judgment was entered therein. The judgment purports to adjudge that the community estate of Winfrey and his deceased wife, at the time the latter died, consisted of an undivided interest in certain specified parcels of real estate, and that Mrs. Winfrey,-at the time she died, “owned no other or further interest in any property, real or personal.” The judgment further recites that A. A. Winfrey was, at the time his wife died, seized and possessed “asrhis individual and separate estate” of an undivided interest in certain specified real estate and of the furniture which is involved in the present controversy. It was adjudged that said furniture belonged to the separate estate of A. A. Winfrey, and 'that “all of the title, interest and estate therein is hereby divested out of said plaintiff, Winifred Ford, and vested in the defendant, A. A. Winfrey.” The judgment also purports to fix and establish the respective interests of Winfrey and Winifred Ford in the several parcels of real estate described in the judgment. After that judgment was entered, the present suit on the fire policy in question was brought by Winfrey. In defense, the insurance company set up the policy stipulation quoted above. The only question presented for consideration here is whether or not, under the facts stated, the interest of Winfrey in the furniture, at the time the policy issued, was other than unconditional and sole ownership, within the meaning of the said policy stipulation. The question is not difficult of solution. Disregarding, for present purposes, the reversion-ary interest in the furniture which was acquired by Winifred Ford under her mother’s will, she acquired an undivided interest, of substantial extent, in the furniture. The property, right to this undivided" interest passed to Winifred Ford on the death of her mother. With reference to this undivided interest, Winfrey acquired no property right at all. By virtue of the will, he was not even entitled to exclusive possession of the furniture, for the reason that Winifred, through her guardian, was entitled to possession in common with him. R. S. art. 4172. The agreement respecting the furniture, which was made between Winfrey and the guardian, together with the payment of the $60 to the latter, gave Winfrey no title, either legal or equitable, to Winifred’s undivided interest in the furniture. The guardian had no authority from the probate court to bind Winifred by his agreement in this respect, or to dispose of her property as he undertook to do. If, in connection with that transaction, any equitable right at all, in- respect of Winifred’s undivided interest in the furniture, accrued to Winfrey, such right did not extend beyond that of a lienholder in possession, to secure reimbursement for the purchase money paid in pursuance of said agreement. Harrison v. Ilgner, 74 Tex. 86, 11 S. W. 1054. When the fire policy issued, Winfrey was not the unconditional and sole owner of the furniture, as contemplated by the policy stipulation under consideration; consequently no liability against the insurance company arose from the policy. Fireman’s Fund Insurance Co. v. Wilson (Tex. Com. App.) 284 S. W. 920. The agreed judgment, which was entered after the fire, by the district court of Dallas county, in the suit between Winifred and Winfrey, did not in any wise bind the insurance company, since the company is a stranger to such judgment.

The judgment rendered by the Court of Civil Appeals in favor of the defendant in error should be affirmed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.  