Jacobs v. McClintock
| Decision Date | 01 January 1880 |
| Docket Number | Case No. 671. |
| Citation | 53 Tex. 72 |
| Parties | SARAH JACOBS v. MILDRED AND J. H. MCCLINTOCK ET AL. |
| Court | Texas Supreme Court |
APPEAL from Harris. Tried below before the Hon. James Masterson.
Suit in trespass to try title, brought by Sarah Jacobs, appellant, against J. H. McClintock and Mildred McClintock, to recover lot six and half of lot seven, in block one hundred and twenty-six, on the south side of Buffalo Bayou, in the city of Houston. The original petition was filed July 28, 1875. October 19, 1875, defendants answered by general demurrer, plea of not guilty; that they were innocent purchasers of the property; plead limitation, and suggested valuable improvements made in good faith. They also alleged that they claimed the property under warranty deed from Henry Brashear and wife, and that Brashear claimed under warranty deed from Robert Brewster; they brought in Henry Brashear and wife and Robert Brewster as warrantors, and asked for judgment against them on their warranties, in the event the plaintiff recovered.
November 16, 1875, plaintiff filed an amended petition, alleging that on January 4, 1862, the property was conveyed to her by Robert Brewster and C. J. Grainger; that she was then a feme covert, and the conveyance was made to her for her exclusive property; that on August 24, 1866, a deed of trust on the property in controversy and the balance of lot seven was executed by plaintiff and her husband to C. J. Grainger, to secure Robert Brewster in a note of Abram Jacobs (plaintiff's husband), for $1,000 gold, due ninety days from its date; that the note was an usurious contract, and void; that plaintiff paid $250 gold on the note up to January 14, 1867, and in April, 1867, or thereabouts, she and her husband, intending to be temporarily absent from Houston, delivered the premises to Brewster, who received the rents of the same up to August 23, 1869, when Brewster caused the premises to be sold by John Brashear, as pretended substitute trustee, and at the trustee's sale Brewster became the purchaser, and from that time held the premises and collected the rents, until he sold to Henry Brashear, on March 26, 1870; that during the time Brewster held the premises, the rents were received and appropriated on the note. Plaintiff further alleged that the trustee's sale was void; that John Brashear was never constituted as substitute trustee, and had no power to act as such, and that Brewster never had any interest in the property except by way of mortgage thereon; and that all Brewster's acts about the property were fraudulent and void.
Henry Brashear and wife, in their original answer, alleged that they had conveyed good title to the property in controversy to Mildred McClintock.
Brewster answered, alleging that he had conveyed to Brashear good title to the property.
In amended answers filed, the defendants, J. H. and Mildred McClintock, and the warrantors, Brashear and wife, denied all the allegations in plaintiff's pleadings, and set up that they were innocent purchasers of the property in controversy, and possessors in good faith for more than one year before the institution of the suit, and suggested valuable improvements made in good faith. They also alleged the execution of the deed of trust by Abram and Sarah Jacobs, to C. J. Grainger, to secure Robert Brewster, regular and valid sale thereunder to Brewster, defendant's claim under Brewster, and that plaintiff and her husband assented to the trustee's sale, and ratified it, and were thereby estopped from asserting its invalidity.
The defendants and Henry and Maggie Brashear pleaded the three and five years' statute of limitation, and alleged purchase of the property by them, and payment of the purchase money in good faith, without notice of plaintiff's claim. Verdict for the defendants, and judgment.
The deed of trust from Jacobs and wife to Grainger, to secure Brewster, provided that in case of default on the part of the makers of the trust deed, or on the part of their assigns, in the payment of the note and interest secured by the deed, when the same should be due and payable, then the trustee, Grainger, was thereby empowered, and it should be his duty, as trustee, at any time after default made in the payment of the note, at the request of the legal holder, to advertise the property conveyed, for twenty days, for sale, to be sold on a day named in the advertisement, before the court house door in Harris county, to the highest and best bidder for cash, etc., and apply the proceeds of the sale, after deducting expenses of the sale, to the payment of the note and interest. In the event said Grainger should be unwilling or unable to act in carrying out the trust, then the deed provided for the appointment by him of a substitute trustee. In the event Grainger should refuse to appoint a substitute trustee, then it should be lawful for the holder of the note due and unpaid to appoint a substitute trustee, under his hand and seal, and that his acts should be as effectual and binding as though performed by the original trustee.
The appointment of the substitute trustee was objected to by plaintiff on the ground that there had been no refusal of Grainger to appoint a substitute, and therefore Brewster had no authority to appoint, and that the writing offered as the appointment of John Brashear was not under Brewster's seal.
Mrs. Grainger's testimony was that her husband C. J. Grainger died July 1, 1869.
The appointment of John Brashear as substitute trustee was in due form and under the hand and signature of Robert Brewster, but was not under his seal, and was executed on July 22, 1869.
Brewster's testimony showed that he held and owned the note secured by the deed of trust, and that it was due and unpaid at the time he appointed John Brashear substitute trustee.
It was admitted that the chain of title from the sovereignty of the soil down to plaintiff was regular.
W. P. & E. P. Hamblen for appellant.--The first point we raise is, that the court erred in admitting in evidence the appointment of John Brashear as substitute trustee.
The deed of trust from Jacobs to Grainger, use of Brewster, provides if Grainger “refused to appoint a substitute trustee, then it shall be lawful for the holder of the note due and unpaid to appoint said substitute trustee under his hand and seal.”
We objected to the admission of said appointment:
First. Because there was no provision in said deed of trust to appoint a substitute trustee except in case of Grainger's refusal. This is a voluntary trust. The conditions must be strictly complied with. Equity would have executed this trust, had its assistance been invoked, but will not lend its assistance, in this class of cases, in curing the defective execution of the power by a volunteer or interloper. Story's Equity, vol. 1, sec. 95. In this case Brashear was a volunteer. Brewster was not a purchaser for value; he credited his bid on the note. Equity will not assist either, farther than to foreclose that lien.
Secondly. Because the appointment of John Brashear as substitute trustee is not under seal, as required by the terms of the deed in trust. “If the power is to be executed under seal, and the seal is omitted, it is not a good execution of the power.” Dormer et al. v. Thurland et al., 2 Peere Williams, p. 509 “If there is any irregularity, * * * or as to the manner in which it is made, the purchaser of the trust property may find his title utterly worthless.” Perry on Trusts, sec. 288. And to the same effect see Hawkins & Kemp, 3 East, 410; Sugden on Powers, vol. 2, pp. 300 and 304; Washburn on R. P., vol. 2, p. 609, and cases cited.
In our view of the case, the only relief equity would have afforded the appellees, if any, would be to subrogate them to Brewster's lien, and foreclose the same on the land, and not to have decreed them the land.
For which errors, with others set forth in our assignment, we ask that the cause be reversed and remanded.
Baker & Botts, Crank & Webb and J. W. Jones for appellees.--The presumption is that Grainger, during his lifetime, was neither unable nor unwilling to act, otherwise he would have appointed a substitute. Nor is it likely that Grainger, while living, refused to appoint a substitute, otherwise Brewster, the holder of the note, would have done so. Suppose Grainger had lived, and on request had refused to appoint a substitute, can it be denied that, in such case, Brewster would have had that power? Then how much stronger is the case when Grainger is dead and cannot refuse? Is not his (Grainger's) death stronger than his refusal could have possibly been?
If a condition becomes impossible by the act of God, the condition is discharged. (2 Bacon's Abridg., title “Conditions,” subd. 2, heading of the Act of God, and the various decisions under that heading; see, also, Bouvier's Law Dic., title “Impossibility.”)
Had Grainger lived, he could only have refused on demand by Brewster to act, which refusal would authorize Brewster to appoint a substitute trustee. Now, if Grainger's refusal would have been authority to Brewster, a fortiori,...
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Jones v. Salmon
...allegation that this sale was for less than the value of the land, which of course, would not be material to the issue, and as said in Jacobs v. McClintock, by the supreme court of Texas, through Justice BONNER: "As equity looks to the substance and not to the shadow, the defective executio......