Fuller v. O'Neal

• Decision Date: 16 December 1887
• Citation: 6 S.W. 181
• Parties: FULLER v. O'NEAL.
• Court: Texas Supreme Court

Page 181

6 S.W. 181

FULLER v. O'NEAL.

Supreme Court of Texas.

December 16, 1887.

Appeal from district court, Van Zandt county; FELIX J. McCORD, Judge.

Leake & Henry and Kilgore, Lively & Kilgore, for appellant. J. C. Kearby and Kearby & McChesney, for appellee.

WILLIE, C. J.

This was an action of trespass to try title, brought by Mrs. O'Neal, to recover of Fuller a lot of ground, and the improvements thereon, in the town of Wills Point. To this action defendant pleaded a demurrer and not guilty. The plaintiff proved title in herself, and the defendant attempted to deraign title from her and her husband through a deed of trust executed by them to W. A. Williams, to secure a debt due from them to defendant, and a sale under said deed, at which defendant became the purchaser. When the deed from the trustee to Fuller was offered in evidence, it was objected to on the ground that, by its own recitals, it showed that the trust sale was not made by the trustee named in the deed, but by another person purporting to act as the agent for the trustee, and for other reasons not necessary to mention. The objections were sustained by the court. A judgment having been rendered for Mrs. O'Neal, the defendant appealed, assigning no other error except the ruling of the court upon the admissibility of the deed.

This ruling involves the question as to whether a sale by an agent appointed by such a trustee passes a good title in the property sold to the purchaser, when there is nothing on the face of the trust deed that authorizes the trustee to appoint an agent to make the sale for him. There was no such authority contained in this deed, and the trustee was absent when the sale was made. The office of trustee is one of personal confidence, and cannot be delegated, unless authority so to do is expressly granted in the instrument from which he derives his powers. The course marked out for the trustee to pursue must be strictly followed by him; for the method of enforcing the collection through such deeds is a harsh one. The grantor of the power is entitled to have his directions obeyed; to have the proper notice of sale given; to have it to take place at the time and place, and by the person appointed by him. He gives these directions because he thinks that a sale made by the person selected, and under the circumstances stated, will be to his interest and make his property produce the largest amount of money. Of the prescribed conditions none is more important than that which requires that the trustee shall in person make the sale. He is chosen because of the confidence the grantor has in his integrity and discretion. The trustee in making the sale, and during the time the property is under the hammer, is expected to protect the interests of the grantor, to see that no fraud is practiced detrimental to his interests, and that no improper bid is accepted, and that the property is not knocked off without giving fair opportunity for it to bring its reasonable value. Perhaps the agent selected by the trustee to attend to this important matter is not one to whom the grantor himself would have intrusted it. He has reposed confidence in the party selected by him, and that confidence cannot be transferred without his consent. The trustee can no more absent himself while the sale is going on than he can make it at a time or a place or for a character of consideration different from that authorized in the deed. These views are so well supported by authority that it is unnecessary to further elaborate them. Perry, Trusts, §§ 402, 499, 602n, 602x, 779, 780; Graham v. King, 50 Mo. 22; ...