(dissenting). — In my 'Opinion the court erred in sustaining the demurrer to the first replication to plea number one as amended.
By that plea the defendant company invoked the following provision of the contract of insurance: “This entire policy, unless otherwise provided by agreement endorsed hereon, or attached hereto-, shall be void if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed.”
The replication admits that the policy of insurance contained the condition just qu-o-ted, but, “alleges that said foreclosure proceedings were not commenced either with its knowledge or consent, b-ut in truth and in fact the filing of the bill of complaint, and the instance of the subpoena thereon on the 24th day of July, A. D. 1906, was without either the knowledge or consent of said plaintiff; that said plaintiff had no knowledge of the filing of -the bill of -complaint, -nor of the issuance of the subpoena in consequence thereof until the subpoena was served upon it, on the 24th day of July, A. D. 1906.”
*481I am of the opinion that the replication shows that the foreclosure proceedings were not commenced with the knowledge of the insured plaintiff, and that the demurrer thereto should have been overruled. ■
When may it be said that foreclosure proceedings are commenced according to our statute?
All mortgages shall be foreclosed in chancery. Section 2501 of the General Statutes of 1906. No subpoena in chancery shall issue until a bill ■ of complaint shalhave been filed in the clerk’s office. Section 1862 of thGeneral Statutes of 1906.
The issuance or service of subpoena is preceded by the filing of the bill of oreclosure. The bill comes before the issuance or service of the subpoena. The bill initiates the foreclosure proceedings. To initiate means to' commence. “Commence” is defined in the Century Dictionary as “to cause to begin to be, perform the first act ofenter upon, begin;” as defined by Webster, “to begin, to originate, to do the first act in anything, to take the first step.” State v. Hartford Fire Ins. Co., 99 Ala. 221, 13 South. Rep. 362; 2 Words and Phrases, 1281.
“In England it is settled that the filing of a bill or declaration is to be regarded, for every essential purpose, as commencement of the suit.” Lowry v. Lawrence, 1 Caines (N. Y.) 69 text 72 (quoting Cowp. 454).
In Burton v. Buckeye Insurance Co., 26 Ohio St. 467, Welch, C. J., for the court said: “The real question here is one of construction of the policy: what did the parties mean by the word ‘commenced,’ in this limiting clause ? In common parlance, a suit or action would be considered as ‘commenced,’ perhaps, when the first step is taken in' court. This, under our law, is the filing of the petition. The proviso' in the policy being in the nature of a penal provision, it is by no means clear to me that it should not be interpreted in 'that sense.” The *482Supreme Court of Louisiana has said .that “commencement of foreclosure proceedings” must be held to be synonymous with “filing of suit.” Stenzel v. Pennsylvania Fire Ins. Co., 110 La. 1019, 35 South. Rep. 271; and the Idaho Supreme Court has held that the suit was commenced when the complaint was filed. Bellevue Roller Mill Co. v. London & L. Fire Ins. Co., 4 Idaho 307, 39 Pac. Rep. 196.
Whether we give to the word “commenced” its common meaning, or whether we construe its meaning in the light of the provisions of the General Statutes already quoted, it is clear to me that the filing of the bill of complaint commences the foreclosure proceedings. But this proposition is admitted, as the brief of counsel for the defendant in error admits, on page 6, that the filing of a bill is in this State the commencement of a suit. Certainly the service of -the subpoena upon the defendant was not the commencement of the foreclosure proceedings because the subpoena cannot issue until the bill of complaint shall have been filed.
When the replication, therefore, alleges that the insured had no knowledge of the filing of the bill of complaint until a subpoena was served upon the insured, it Is made clear -that the foreclosure proceedings were not commenced with the knowledge of the insured.
The language of the policy is so plain and unambiguous and there is such unanimity as to what is meant by the commencement of foreclosure proceedings it would seem that there could be but one side to this question.
But counsel for defendant in error contend, “The true meaning of the provision is that if foreclosure proceedings be commenced and knowledge thereof be brought to the assured, he must, after such knowledge, bring notice to the insurance company and require its consent to be endorsed on or added to the policy.”
*483If we ke.ep before us the words of the policy, “if with the knowledge of the insured foreclosure proceedings be commenced,” the departure therefrom of the contention of counsel will be seen easily, clearly and quickly. The language of the policy is, “if with the knowledge of the insured foreclosure proceedings be commenced.” Counsel would have us read 'the policy thus: “If foreclosure proceedings be commenced and knowledge thereof be brought to the assured.” ■ In other words, the policy requires the foreclosure proceedings to be commenced with the knowledge of the insured, bdt counsel contend that the foreclosure proceedings to be commenced and knowledge thereof be brought to the insured.
To analyze further, counsel would substitute for the words of the policy, “with the knowledge of the insured,” the words, “knowledge thereof be brought to the insured.” This departure, thus changing by construction of the language of the policy, is emphasized by the further contention of counsel for defendant in error: “The words ‘be commenced with a knowledge of the assured’ relate not to the act of comjmencement, but to. the fact of commencement, that is, not to the -time of commencement, but to the status created by the commencement.”
W'hat principles of law authorize such a loose construction of the language of the policy? In the first place, it seems to me that the language of the policy is clear and unambiguous and the courts as well as the parties must be bound by the language of the policy; and that language clearly relates to. the time of commencement of the foreclosure proceedings, not to -the fact of the commencement of them. But even if the language of the policy were of a doubtful meaning or import, it is the universal rule that the construction which is most favorable to the insured is to be placed upon it. London & L. Fire Ins. Co. of Liverpool, England v. Davis, *48437 Tex. Civ. App. 348, 84 S. W. Rep. 260; Goddard v. East Texas Fire Ins. Co., 67 Tex. 69, 1 S. W. Rep. 906, S. C. 60 Am. Rep. 1; Bills v. Hibernia Ins. Co., 87 Tex. 547, 29 S. W. Rep. 1063, 29 L. R. A. 706, 47 Am. St. Rep. 121.
If the language used in the policy of insurance is ambiguous, if it bears hard upon the insurance company, if it must hurt any one, it must be the company to suffer, because that language was chosen by the insurance company. The insured had no choice in the matter, except to accept or reject the policy as it was written by the company in its own office by advice of its own lawyers. The policy was accepted as it was written by the defendant company, and the plaintiff only 'asks that this court accept and enforce the plain language of the policy as it has been written by the defendant company. The plaintiff asks for nothing more. He should have at the hands of our court nothing less.
Moreover, if the condition of the policy is of doubtful import it should be construed in favor of the insured because the law does not favor forfeiture, and will always give preference to' that reasonable construction which will sustain the claim' of the insured. London & L Fire Ins. Co. v. Davis, supra; Brown v. Palatine Ins. Co., 89 Tex. 590, 35 S. W. Rep. 1060.
It is said in May on Insurance, section 175 : “No- rule in the interpretation of a policy is more fully established, or more imperative or' controlling than that which declares that in all cases it must be liberally construed in favor of the assured, so as not to defeat, without a plain necessity, his claim for indemnity, which it was his object to secure in making the insurance.”
Again, “contracts of insurance like other contracts, are tO' be construed according to the sense and meaning of the terms which the parties have used; and if they are *485clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense.” Imperial Fire Ins. Co. v. Coos county, 151 U. S. 452, text 463 (38 L. ed.) 231, text 235, 14 Sup. Ct. Rep. 379; Fred J. Kiesel & Co. v. Sun Ins. Office of London, 31 C. C. A. 515, text 518, 60 U. S. App. 10, 88 Fed. Rep. 243, text 246; McGlother v. Provident Mut. Acc. Co. of Philadelphia, 32 C. C. A. 318, text 322, 60 U. S. App. 705, 89 Fed. Rep. 685, text 689.
I think all of us will accept these rules of construction. Applying them to the language used in -the policy sued upon, I think the conclusion already arrived at in this opinion is inevitable.
Clearly the words of the policy, “if, with the knowledge of the insured, foreclosure proceedings be commenced” relate to the time of the commencement of the. foreclosure proceedings, and not to the fact of commencement. If these words be enlarged to mean that the policy shall be void if foreclosure proceedings be commenced and knowledge thereof at any time be brought to the insured, then the meaning of the language of the contract would be enlarged by the court so as to bind the insured to a forfeiture of the policy if he acquires knowledge of the foreclosure proceedings- after they have been commenced, when he bound himself to a forfeiture only if he had knowledge of the foreclosure proceedings wlhen the same were commenced. Such a construction would be a departure from the plain language employed and would be a construction of the language favorable to the insurer and favorable to' a forfeiture, where the language must be construed most favorably to the insured so as not to defeat his claim for indemnity.
Thus far I have contented myself with a construction *486of the language employed'by the parties to the contract of insurance, but let us consider some of the arguments made by counsel against the construction indulged in by me. Counsel for plaintiff in error contend: “Nor would the provision be of any value if the insured be requested to have the knowledge at the time of the commencement of the suit, because this involves constant presence of the insured with the mortgagee, or his constant presence at the office of the clerk of the circuit court where the proceedings are instituted, for, if he must knowi at the moment, then a knoiwledge acquired after the filing" of a bill (which is in this State the commencement of a suit), would be equally inoperative to protect the insurer as if that knowledge be acquired an hour, a day or a week thereafter.” A sufficient reply is, that if this provision be of no value it is the fault of the defendant company. If the def'endanj; corporation wanted to make the contract apply to knowledge of the foreclosure proceedings acquired after the commencement of them, or after the filing of the bill of complaint, it should have so written the policy, and it is not the province of this court to malee a new contract of insurance for the parties, whereby the corporation may be enabled to keep from paying to citizens of this State the money contracted by the defendant corporation to' pay, especially when the defendant corporation keeps in its coffers the money of the plaintiff paid for this contract of insurance. The following cases will be. found to support the views expressed and the conclusion reached by me herein:. London & L. Fire Ins. Co. of Liverpool, England, v. Davis, 37 Tex. Civ. App. 348, 84 S. W. Rep. 260; North British & Mercantile Ins. Co. v. Freeman, Tex. Civ. App. , 33 S. W. Rep. 1091; Bellevue Roller Mill Co. v. London & L. Fire Ins. Co., 4 Idaho 307, 39 Pac. Rep. 196.
*487The decision in the case of Norris v. Hartford Fire Ins. Co., 55 S. C. 450, 33 S. E. Rep. 566, 74 Am. St. Rep. 765, holds that the commencement of a suit is when, the summons is served because, according to the statute, “an action is commenced as to each defendant when the summons is served on him.” This case is regarded as an authority in favor of, rather than against, the position 01 plaintiff in error.
As opposed to these cases, defendant in error cites, in support of its position the following" cases: Schroeder v. Imperial Ins. Co., 132 Cal. 18, 63 Pac. Rep. 1074, 84 Am. St. Rep. 17; Findlay v. Union Mut. Fire Ins. Co., 74 Vt. 211, 52 Atl. Rep. 429; Delaware Ins. Co. v. Greer, 120 Fed. Rep. 916, 57 C. C. A. 188, 61 L. R. A. 137-
Counsel for defendant in error express the opinion that the two Texas cases seem to be opposed to, the decision by one of the same courts in Hartford v. Clayton, 17 Tex. Civ. App. 644. In commenting upon that case, the Texas court, in London & L. Fire Ins. Co. v. Davis, supra, said: “In the case of Insurance Co. v. Clayton (Tex. Civ. App.) 43 S. W. 910, it was held that the condition as to the commencement of foreclosure proceedings with the knowledge of the insured was a valid and binding clause and that the clause is-not waived by the fact that the insurance company knew of the existence of the mortgage at the time of the issuance of the policy. The question involved in this case, was not adverted to in any manner.”
The opinion of the court by Mr. Justice Fly, in London & L. Fire Ins. Co. v. Davis, is an able exposition’ of the subject before us and a comprehensive review of nearly all the cases that bear directly or indirectly upon this question.
AVhen we consider the conflict in the authorities there *488would seem to be two sides to this question. That being ■so, if there are two ways of construing the language of the policy, one construction in favor of the insured and another construction in favor of the insurer, I am required by the rules of construction to decide in favor of the construction most favorable to the insured. That consideration must determine my judgment, if I were not otherwise convinced by the plain words used in the policy.
I think the judgment should be reversed.
Hocker, J., concurs with Parkhill, J.