Howard v. Fulton

• Decision Date: 13 January 1891
• Citation: 14 S.W. 1061
• Parties: HOWARD v. FULTON.
• Court: Texas Supreme Court

14 S.W. 1061

HOWARD v. FULTON.

Supreme Court of Texas.

January 13, 1891.

Appeal from district court, Travis county.

Walton, Hill & Walton, and West & McGown, for appellant. Robertson & Williams, for appellee.

GAINES, J.

This was an action of trespass to try title brought by appellant to recover of appellee 68 sections of land in Oldham and Deaf Smith counties. The appellant, being the owner of the lands on the 27th day of November, 1886, executed to one Thompson, as trustee, a mortgage, with a power of sale, for the purpose of securing a promissory note payable to one Francis, on the 24th day of November, 1887. The note not having been paid at maturity, the trustee, after advertising the sale, sold and conveyed it to one Mary Wilke, who conveyed it to one J. W. Rickey, who, in turn, conveyed it to the appellee. The contention of the plaintiff in the court below was that the conveyance by the trustee was invalid by reason of his failure to give notice in the manner provided by the deed of trust, and such is his contention here. The stipulation in the instrument conferring the power to sell is as follows: "But in case of the failure or default in the payment of said note according to its tenor and effect at maturity of same, or in case of failure to pay all taxes upon said land when same shall be due and payable, then and in that event said note shall at once become payable and due, and this deed shall remain in full force and effect, and the said Thad. A. Thomas, party of the second part, is by these presents fully authorized and empowered, and it is made his special duty, at the request of said D. R. Francis, party of the third part, or the holder of said note, at any time after the maturity of the same, to sell the above-described tracts of land, or any part thereof, separately or in a body, to the highest bidder at public vendue, for cash, at the court-house door in the city of Austin, county of Travis, state of Texas, first giving thirty days' public notice of the time, terms, and place of sale, and of the property to be sold, by notice posted at the place of sale, and by advertising the same in some newspaper published in the city of Austin, Texas, for at least thirty days prior to the day of sale, such publication to be made four times in succession in said paper," etc.

The agreed statement upon which the case was submitted in this court shows that the trustee gave notice of the time, terms, and place of sale, and of the property to be sold as follows: By posting two printed copies of such notice on the boards in the corridor of the court-house in the city of Austin, county of Travis, and state of Texas, said printed notice being about 10 inches in length, and 2 inches in breadth, the sale being made at the west front door of said court-house, where all public sales in the county of Travis are usually made, and the boards on which the notices were posted were in the corridor of the building, about 40 feet from the front door, and in open view from the door and just at the side of the stairway leading to the court-rooms in the second story. The boards on which those notices were placed were provided by the county of Travis for the posting of notices of sheriffs' sales, tax-sales, all notices in probate matters, and all public...