On Motion for Rehearing
Appellant strongly contends that it is entitled to the entire fund perforce of the October 1955 deed of trust contract for insurance; said transaction being in renewal of the original Ace Insulation mechanic’s lien note. On said date this note was in suit, but appellant did not amend and seek the benefit of such later transaction; electing, on the other hand, to take judgment in April 1956, foreclosing its mechanic’s lien containing no clause requiring the Brewers to insure the property for benefit of the lien holder. Having elected to rely solely upon the provisions contained in the note executed originally to Ace Insulation, said plaintiff is bound thereby. As a matter of law the judgment thereon effectuated a cancellation of same; and precludes a resort to provisions of the renewal note and deed of trust of October 1955. 15-B Tex.Jur. p. 345; Dollins v. Brooks, Tex.Civ.App., 229 S.W. 344.
Art. 6.15, Vernon’s Ann.Civ.St, Insurance Code, headed “Interest of Mortgagee or Trustee” is here invoked for the first time. It reads: “The interest óf a mortgagee or trustee under any fire insurance contract hereafter issued covering any property situated in this State shall not be invalidated by any act or neglect of the mortgagor or owner of said described property or the happening of any condition beyond his control, and any stipulation in any contract in conflict herewith shall be null and void.” We do not regard the quoted Article as having any bearing on the facts and circumstances of this case.
After due consideration, the motion is overruled. Appellees’ motion for rehearing is likewise overruled.