Hart v. Eason
| Decision Date | 11 March 1959 |
| Docket Number | No. A-7089,A-7089 |
| Citation | 321 S.W.2d 574,159 Tex. 375 |
| Parties | Lamar HART et ux., Petitioners, v. Winston G. EASON, Respondent. |
| Court | Texas Supreme Court |
Jack C. Eisenberg, Austin, W. G. Walley, Jr., and Jack R. King, Beaumont, for petitioners.
J. R. McDougald, Beaumont, for respondent.
This is an action in trespass to try title brought by petitioners, Lamar Hart and wife, against respondent, Winston G. Eason, the property involved being a house and lot in the city of Beaumont. The sole issue on the trial was whether a sale to respondent of petitioners' property at public auction on November 1, 1955, the first Tuesday in the month, under a power contained in a deed of trust executed by them and later assigned to respondent was invalid by reason of a failure to post a notice of such sale at the Jefferson County courthouse door. It was the claim of respondent that he personally posted such notice on October 6, 1955, at about 4:30 p. m. No claim was made that he posted it at any other time. Accordingly, the special issue submitted to the jury inquired whether or not respondent posted the notice on that date. Based upon the answer of the jury that the notice was not posted on that date, judgment was rendered in the trial court in favor of petitioners for the title to and possession of the property; and on a cross action by respondent the judgment upheld the validity of the deed of trust lien and ordered same foreclosed and the property sold under execution. The effect of the trial court's judgment was to set aside the sale by the trustee under the power contained in the deed of trust and order same sold under execution after due notice. The Court of Civil Appeals reversed that judgment and rendered judgment upholding the validity of the sale, holding that the trial court should have sustained respondent's motion for an instructed verdict or his motion for judgment non obstante veredicto. 316 S.W.2d 945.
The instrument which we have referred to as a deed of trust was not in the form of such instruments generally employed in this jurisdiction. It was designated 'First Mortgage,' and empowered the mortgagee or his assigns, upon default, to sell the property either personally or through an agent or attorney. It contained the following recital:
'And it is further agreed by the parties hereto that in any deed or deeds given by the said Morgagee, or its successors and assigns, their attorney or agent hereunder, any and all statements or other recitals therein made * * * as to the property to be sold having been duly advertised and notice given in accordance herewith * * * shall be taken by any and all courts of law and equity as prima facie evidence that the said statements or recitals state facts, and without furhter question said statements and recitals shall be accepted as proof of the matters and things recited and stated in said deed or deeds.'
The deed of sale signed by Paul T. Duff as attorney, agent and trustee of the mortgagee contained this recital:
'* * * and after having posted written notice at three public places in Jefferson County, Texas, one of which was at the Court House door of said County, for three consecutive weeks prior to the day of sale, * * *.'
(1, 2) The recital in the deed was admissible in evidence, and within itself gives rise to a presumption of the validity of the sale. However, it is not a conclusive presumption, but one which may be rebutted. Slaughter v. Qualls, 139 Tex. 340, 162 S.W. 2d 671; McFarlane v. Whitney, 134 Tex. 394, 134 S.W.2d 1047. This proposition is not questioned by respondent, but it is his position that there is no rebutting evidence in the record. Whether or not there is such evidence is the sole question for decision. The question of whether or not the answer of the jury was against the overwhelming weight of the evidence was not raised in the motion for new trial in the trial court, and, therefore, is not in the case.
The agent Duff, who conducted the sale, testified that he affixed his signature to three notices of such sale which he returned to respondent Eason, and that he had no knowledge of whether one of these...
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Terry v. Teachworth
...recitals in the trustee's deed gave rise to a presumption of the validity of the sale, but such presumption is rebuttable. Hart v. Eason, 159 Tex. 375, 321 S.W.2d 574; Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675. It was not appellees' burden to prove their case beyond a reasonabl......
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American Savings & Loan Ass'n of Houston v. Musick
...Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.Sup.1965); Burrow v. McMahan, 384 S .W.2d 124 (Tex.Sup.1964); Hart v. Eason, 159 Tex. 375, 321 S.W.2d 574 (1959); Slaughter v. Qualls, Supra; Terry v. Teachworth, 431 S.W .2d 918 (Tex.Civ.App.--Houston (14th Dist.) 1968, writ ref'd The d......
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Cline v. Cline, 13291
...which may be rebutted. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671; McFarlane v. Whitney, 134 Tex. 394, 134 S.W.2d 1047; Hart v. Eason, Tex., 321 S.W.2d 574. In the instant case the Court was well warranted, under the evidence, in finding that the only request, if it can be construed ......
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Houston First American Sav. v. Musick
...340, 162 S.W.2d 671, 676 (1942). The presumption of the validity of the sale is not conclusive and may be rebutted. Hart v. Eason, 159 Tex. 375, 321 S.W.2d 574, 575 (1959). Although Vann Musick admitted in her "cross-claim" that TWI purchased the note and deed of trust and thereby conceded ......