ments, until the above described notes, with all interest thereon are fully paid, according to the face and tenor, effect and reading, when this deed shall become absolute.

“Witness my hand at Taylor, this 2d day of January, 1896. Joseph Kendle."

Opinion. The assignments of error are as follows:

"1. The court erred in denying plaintiff a foreclosure of the deed of trust declared upon in his petition.

"2. The court erred in holding that the land upon which the deed of trust was given to secure the plaintiff in the payment of his debt was the separate property of Mary Strnad and therefore not subject to foreclosure of plaintiff's lien.

"3. It conclusively appearing that the deed was taken in the name of John H. Strnad, the husband of Mary Strnad; that the consideration was $365, of which amount he paid out of the separate means of his wife the sum of $150, and gave his individual note for the balance, which he paid at maturity with the separate means of his wife; that plaintiff's deed of trust was in force and wholly unsatisfied at the time the said John H. Strnad purchased the land, the court erred in not holding that the title to the portion of the lot represented by the unpaid purchase money vested in the community, and was therefore to that exent subject to plaintiff's lien, and in not foreclosing his said lien on the interest in said lot so vesting in the community."

The evidence showing that at the time of the purchase $150 of the separate estate of the wife was paid as part of the purchase price, to that extent the property was the separate estate of the wife Mary derived as a resulting trust.

The deed being to the husband, the residue of the land would be community estate, unless there be some other facts which would make it her separate estate, and the mere fact that the deferred payment evidenced by note of the husband was paid by her would not constitute the residue of the land her separate property, there being no evidence tending to show that the purchase was intended to be her separate estate, and it being a fact that the deferred payment was evidenced by his individual note. There are many cases in this State to the effect that if the deed be to the wife, and the deferred payment be made by her, the property will be her separate estate. Schuster v. Jewelry Co., 79 Texas, 179; Dunham v. Chatham, 21 Texas, 232; Ullman v. Jasper, 70 Texas, 452; 48 Texas, 189. But where the deed is to the husband, as in the case at bar, the payment by the wife must be made at the time of the purchase, in which case a resulting trust arises in her favor and vests the equitable title in the wife. Oury v. Saunders, 77 Texas, 279, et seq., and authorities cited.

There is no testimony in the record in the case before us indicating the intention of the parties, husband and wife, whether the purchase was for the community or the wife's separate estate. There is nothing

but the bare facts that the deed was to the husband, who gave his note for the unpaid purchase money, and the fact that the wife paid out of her separate estate the note after the purchase.

Under the facts it should be held, and we so decide, that the wife acquired an equitable interest in the land, derived as a resulting trust, to the extent of the payment made with her separate estate at the time of the purchase, but that she acquired no further interest in the land by payment of the note after the purchase. Subrogation is not relied on in her pleadings; that is, subrogation to the rights of the vendor holding the note for the deferred payment, and she can not recover on the ground of subrogation.

She is entitled to recover 30-73 of the land, under her rights of resulting trust, which is not subject to plaintiff's debt. The residue of the land, 43-73, is liable for the debt sued on.

The judgment is therefore affirmed in part, decreeing to the wife 30-73 of the land in her separate right, and reversed and rendered in part, ordering a foreclosure of plaintiff's deed of trust on the remainder of the land, to wit, 43-73 of the land, which is ordered sold to pay plaintiff's debt, for which purpose order of sale will be issued by this court.

Affirmed in part and reversed and rendered in part.

FRANKLIN LIFE INSURANCE COMPANY V. MRS. SWEETIE Villeneuve.

Decided April 2, 1902.

1.-Compromise-Consideration-Good Faith of Controversy.

Where the compromise of a claim certain in amount is made for a less sum, the question whether the release of the amount not paid is supported by a consideration depends on whether the controversy over the liability of the debtor is one raised in good faith.

2.-Same-Insurance-Incontestable Policy.

Facts considered and held to support a finding that the controversy over the liability of an insurance company on a policy procured by misrepresentations, but incontestable, by its terms, because it had been in existence over a year, was not raised in good faith by the company, and the settlement void for want of consideration; also charges held to correctly submit that issue.

3.-Uncontradicted Testimony-Interested Witness.

The jury are not bound to believe an interested witness, though uncontra

dicted.

4.-Insurance-Attorney's Fees.

Attorney's fees were collectible in a successful suit for the balance of an insurance policy providing for their recovery, though the company had paid a part of the insurance, in compromise, without suit.

Appeal from Travis. Tried below before Hon. F. G. Morris.

Fiset & Miller, for appellant.

Hogg & Robertson, for appellee.

COLLARD, ASSOCIATE JUSTICE.-The statement of the nature and result of the suit in appellant's brief is correct, and we adopt it as follows: Appellee sued appellant to recover a balance with interest, claimed to be due upon a life insurance policy issued by it upon the life of her husband and payable to her as beneficiary. The balance was the difference between $5000, the face of the policy, and $3900, the amount appellant paid appellee in compromise of her claim under the policy. Appellee sought to set aside the compromise agreement on the alleged grounds (1) that she was fraudulently procured to make it; and (2) that the compromise was without consideration. She further prayed for the recovery of the statutory 12 per cent penalty and reasonable attorney's fees. In a trial by jury she obtained judgment for the unpaid balance with interest and for penalty and attorney's fees, amounting to $1581.86, and judgment was accordingly entered. Appellant made a motion for new trial, and took the other necessary steps for an appeal to this court.

Facts Proved. We find the facts, briefly stated, as follows: That on the 29th day of March, 1898, the appellant issued the policy sued upon for the sum of $5000 on the life of Celestin Villeneuve, payable to his wife, Mrs. Sweetie Villeneuve, as beneficiary. He died May 12, 1899, and satisfactory proof was made thereof by the appellee and received by the appellant. As a part of the contract of assurance, the assured represented and stated, in effect, that he was a man of temperate habits, and that he had not applied for insurance upon his life in other companies and been rejected. These statements were warranted to be true, and in the event they were false it was agreed that the policy should become void. We find that the statement concerning the application for insurance in other companies was false, and but for the following provision contained in the policy this false statement would have rendered the entire policy void: "If the terms of this contract be complied with, it shall be incontestable after one year from its date." The compromise settlement pleaded by appellant was made October 6, 1899, upon which occasion the appellee executed the following receipt and release: "Dated at Austin, Texas, October 6, 1899.-Received of the Franklin Life Association, of Springfield, Ill., four thousand dollars, in full of all claims under and to the within certificate of membership, No. 21,969, on the life of the late Celestin Villeneuve, and hereby surrender all my right, title and interest under and to the same, and releasing said association from all liability; also warranting and defending said payment against any and all claimants whatsoever. Mrs. Sweetie Villeneuve. [Seal.] Attest before W. W. Harris, H. Clausen." The receipt states that she received the sum of $4000 from the appellant as settlement in full of the entire policy, but we find, as a matter of fact, that she only received the sum of $3900. The compromise settlement was made and this receipt was executed by the appellee based upon the representations made by the agent of the company, who then and there had the power and

Vol. 29 Civil-9.

authority to represent the company in negotiating the settlement, to the effect that the entire policy was void, by reason of the fact that her deceased husband had made the false statements, as above set out, concerning his habits of temperance and not making an effort to procure a policy in other companies. At the time these representations were made the agent of appellant knew that the policy contained the incontestable clause, as above set out. He at the time was representing the company, and occupied towards the appellee no confidential or fiduciary relationship. The appellee, at the time the representatives were made and the settlement effected, relied upon these representations, and believed they were true, and had no actual knowledge that the policy contained the incontestable clause.

We also find that the home office of the insurance company is in the State of Illinois, and that there is a provision of the contract that makes the policy payable there, and that there is no statute of that State, similar to ours, allowing the recovery of the penalty and attorney's fees sued for by the appellee in this case. We further find, from statements contained in the application for the policy and from indorsements on the policy, that it was issued to Celestin Villeneuve, a resident of Austin, Texas.

The same facts were in evidence on the first trial of the case, as far as above stated. The court below instructed the jury on the question of consideration for the settlement made by plaintiff and the company, whereby she accepted the amount paid her in satisfaction of her claim on the policy, "that the effect of the settlement does not depend alone upon the question as to whether or not the contention made by defendant's agent that the policy was void was made by him in good faith in the belief that the contention was well founded, or presented a doubtful question. Hence the question as to whether or not there was any consideration for the settlement binding on the parties must depend upon the answer of the jury to the question: Did the plaintiff's [evidently meaning defendant's] agent in making said contention do so in good faith, believing that his contention was well founded, or presented a doubtful question, or did he make such contention in bad faith, knowing that such contention was not well founded? If the jury believe from the evidence that defendant's agent urged said defense in good faith, believing it to be a substantial defense, or a doubtful question, and thereby raised a dispute or controversy as to the liability of the company, then the settlement between plaintiff and defendant company of such controversy for a less amount than that which was actually owing was binding on the plaintiff, the settlement of such bona fide controversy, if it existed, being a sufficient consideration to support the contract to accept less than the full amount as a payment in full, and if the jury so find, they will return a verdict for defendant. On the other hand, if the jury do not believe from the evidence that said contention was made in good faith by defendant's agent in the belief that it was well

founded or presented a doubtful question, but believe that it was simulated for the purpose of forcing a compromise or escaping liability for the entire amount due, when said agent did not believe said contention to be well founded or to present a doubtful question, then there was no consideration to support the agreement to settle for less than the full amount of the policy, and if the jury so find they will return a verdict for plaintiff for the unpaid part of said policy, with 12 per cent damages added thereto, in accordance with the statutes of this State, as a penalty, from the 6th day of October, 1899, until this time, and the further sum of $250 as attorney's fees, which the parties have agreed in this case is a reasonable attorney's fee for plaintiff to be allowed in case she recovers at all, making the total amount of your verdict for plaintiff the sum of $1585.86, if you shall render any verdict for plaintiff on the issue submitted to you herein."

The testimony amply warranted the submission of the question submitted above as to the good faith and belief of defendant's agent in effecting the settlement with plaintiff, and on the question of his belief that the question of liability of defendant herein was doubtful. The evidence was sufficient to warrant the conclusion of the jury, evidenced by the verdict in favor of plaintiff, that T. C. Roseberry was the company's secretary at the time of the settlement with plaintiff relied on as conclusive of the rights of plaintiff and he negotiated the settlement with her, the official corps being a president, vice-president, treasurer, secretary, assistant secretary, and medical director. He had before been agent for a while, writing applications and soliciting business. At the time of the settlement with plaintiff, he signed policies when at home, and when not there his assistant signed policies. He came to Texas for the purpose of trying to settle the claim of plaintiff, in October, 1899. He first attempted to make the settlement on a basis of $3500 by way of compromise. He told her that it was a good settlement, and more than the company "liked" to pay, but that "we always tried to avoid law suits, and we appreciated what it was to fight a woman before a jury, and thought we would rather pay an amount which we thought large, rather than not to settle the claim at all. She declined for that Mr. Harris, present, suggested that we compromise for $4000, but we both ignored his proposition when he first made it. I then enIdeavored to settle for $3750. She declined that. When I finally became satisfied that she would not settle for $3750, I offered to give her $4000, provided she would pay my expenses incurred on the trip, in the neighborhood of $100." She was reluctant to accept the proposition, but did at last agree to take his check for $4000, and give him her check for $100 next morning. The settlement was made on that basis, and she gave him the check for $100 next morning, which was paid. The $4000 was paid to her.

sum.

As to the clause in the policy: "If the terms of this contract be complied with, it shall be incontestable after one year," the same witness. says: "At the time this clause was put in the policies, and for a long