Bemis v. Williams

• Decision Date: 06 May 1903
• Parties: BEMIS v. WILLIAMS et al.
• Court: Texas Court of Appeals

74 S.W. 332

BEMIS v. WILLIAMS et al.

Court of Civil Appeals of Texas.

May 6, 1903.

Appeal from District Court, Cass County; Jas. M. Talbot, Judge.

Action by W. T. Williams, executor, against John M. Bemis and others. From an adverse judgment, defendant Bemis appeals. Affirmed.

Figures & Pruitt and W. P. McLean, for appellant. Geo. T. Todd, for appellee.

FLY, J.

This is an action of trespass to try title, instituted by W. T. Williams, executor of the estate of W. J. Williams, against C. W. Connery and Helen Smith, to recover a certain tract of land in Cass county. Connery disclaimed any interest in the land, and was dismissed from the suit. By what is styled "Plaintiff's Additional Petition," appellant, John M. Bemis, was made a defendant in the case, and answered by general demurrer and plea of not guilty. Helen D. Smith filed an answer, in which she alleged that the 282 acres of land claimed by her out of the tract of land sued for are not included in the deeds under which the executor and appellant claim, but are specially excluded therefrom, and prayed that she be quieted in her title. In a supplemental petition the executor pleaded that a trust deed mentioned in an abstract of title filed by appellant was fraudulent and void as to creditors, and especially as to the testator. Exceptions to this pleading were filed by appellant, but what action was taken thereon does not authoritatively appear in the record, although in a trial amendment filed by the executor it is stated that certain special exceptions to the supplemental petition were sustained by the court. In the trial amendment filed by the executor, it was alleged that his testator was a bona fide purchaser of the land, for a valuable consideration, from John T. Smith, who executed the trust deed through which appellant claims, and that appellant bought with full notice of Smith's deed. The court instructed the jury to return a verdict in favor of Helen D. Smith for the land claimed by her, and in favor of the executor and against appellant for the remaining land. There is no contest as to the judgment in favor of Helen D. Smith.

John T. Smith was the common source and the executor proved a conveyance of the land by him to the testator. Appellant claimed the land through a deed of trust given by Smith to E. W. Taylor, but failed to show any sale of the land under the deed of trust by the original trustee or any legally appointed substitute trustee. John T. Smith is dead. As a muniment of his title, appellant introduced in evidence a deed of trust dated May 26, 1887, on the land in controversy, executed by J. T. Smith to W. T. Armistead, trustee, to secure E. W. Taylor in the payment of a note for $2,500. In the deed of trust it was provided "that in case of the failure or default in the payment of said promissory note at maturity the said W. T. Armistead is by these presents fully authorized and empowered to and it is made his special duty at the request of the said E. W. Taylor at any time made after the maturity of said promissory note to sell the above-described premises and tracts and lots of land," etc., and "that should the said W. T. Armistead, from any cause whatever, fail or refuse to act or become disqualified from acting as such trustee, then the said E. W. Taylor shall have full power to appoint a substitute in writing who shall have the same powers as are hereby delegated to the said W. T. Armistead." The court excluded a deed made by R. R. Taylor, substitute trustee, after hearing evidence to the effect that the original trustee had not been requested to sell the land, and had at all times been ready and willing to execute the trust. This action of the court is complained of by appellant.

It is the unbroken rule that a power of sale given in a deed or mortgage must be strictly followed in all its details. The authority to alienate and convey the property of another is an extraordinary and most important grant of power—so much so that courts governed by the common law for a long time viewed such grants with suspicion, and, although they increased in numbers until they are in universal use in England and America, the strictness required in their execution has never been relaxed; and, even in minor and seemingly unimportant details contained in such grants of power, no change will be tolerated, but a strict and literal compliance therewith is demanded. The trust must be executed in the mode and upon the exact terms and conditions prescribed in the deed of trust. If the property is to be sold in a certain place at a certain time, or in a certain manner, as at private sale or public auction, with the consent or at the request of certain persons, these details must be literally followed and carried out, because the owner of the property has so provided. The details may appear frivolous and unimportant, but the maker of the deed saw proper to guard and protect his property by means of them, and for that reason they become important and essential. In this case the power of sale vested in the trustee remained dormant and inactive until called into action by the request of the beneficiary. Until that request was made, he had no power to act, and without that request there could not be a failure or refusal on his part to perform the powers given him by the deed of trust. Speaking on this subject in the case of Boone v. Miller, 86 Tex. 74, 23 S. W. 574, the Supreme Court said: "The power of sale in a deed of trust is an important power granted by the maker, and he has the right to place upon it such limitations and conditions as he may deem proper for his own protection. When the exercise of a power is made to depend upon the direction or request of a given person, then the direction or request of that person must be given in order to authorize the exercise of the power." Under the testimony in the record, W. T. Armistead was never requested to sell the land, and for that reason did not execute the power placed in his hands by the deed of trust.

The case of Bracken v. Bounds (Tex. Sup.) 71 S. W. 547, is...