Michael v. Crawford

• Decision Date: 11 April 1917
• Docket Number: (No. 2493.)
• Citation: 193 S.W. 1070
• Parties: MICHAEL v. CRAWFORD et al.
• Court: Texas Supreme Court

193 S.W. 1070

MICHAEL v. CRAWFORD et al.

(No. 2493.)

Supreme Court of Texas.

April 11, 1917.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Charles L. Michael against Geo. W. Crawford and another. Judgment of the Court of Civil Appeals (150 S. W. 465) affirming a judgment for defendants, and plaintiff brings error. Reversed and remanded.

Guynes & Colgin and Chas. L. Michael, all of Houston, for plaintiff in error. W. J. Howard, of Houston, for defendants in error.

PHILLIPS, C. J.

The case involves the validity of an appointment of a substitute trustee for the execution of the power of sale conferred in a deed of trust upon real estate and the sale thereof under the power by such trustee.

The deed of trust was given by C. W. Hahl to secure a purchase money note for land in favor of the administrator of the estate of Susan Spofford. It provided that in case of the death of the trustees named in the instrument or their refusal or failure to act, a successor might be appointed by the beneficiary, or the holder of the note, without other formality than an appointment and designation in writing. J. A. Rose became the holder of the note. Of the two trustees named in the deed of trust, one died, and the other declined to execute the power of sale after default in the payment of the note. A substitute trustee was then appointed by J. T. Glaze, who acted in the matter as attorney in fact for Rose under a general power of attorney granting him authority to buy and sell real estate and vendors' lien notes, execute and release liens and to make leases, etc. The land was advertised and sold by the substitute trustee so appointed. Some months after the sale, Rose attempted to ratify Glaze's appointment of the trustee by a recorded instrument in writing in which he recited that the appointment was made with his consent and approval.

The power of sale in a deed of trust is an important power. It is a method provided for the transferring of one man's property to another. The maker of the instrument has the right to impose upon its exercise such conditions as he deems necessary, and such limitations as he does impose must be strictly followed. It is a power which admits of no substitution and of no equivalent. Crosby v. Huston, 1 Tex. 203; Boone v. Miller, 86 Tex. 74, 23 S. W. 574; Perry on Trusts (3d Ed.) § 602p.

It was declared by Lord Mansfield:

"That the intent of the parties who gave the power ought to govern every construction. He to whom it is given has a right to enjoy the full exercise of it. They over whose estate it is given have a right to say it shall not be exceeded. The conditions shall not be evaded; it shall be strictly pursued in form and substance; and all acts done under a special authority not agreeable thereto nor warranted thereby must be void." 1 Burrow's Reports, 120.

In Perry on Trusts, supra, it is said:

"It must be constantly borne in mind that the power of sale given in the deed or mortgage must be strictly followed in all its details. The power of transferring the property of one man to another must be followed strictly, literally, and precisely. Such a power admits of no substitution and of no equivalent, even in unimportant detail. If the power contains the details, the parties have made them important; and no change can be made even if the mortgagor would be benefited thereby, nor if a statute provides a different manner. If the power is not executed as it is given in all particulars, it is not executed at all, and the mortgagor still has his equity of redemption."

The power to appoint a substitute trustee for the execution of the power of sale is not inherent in the cestui que trust. It is only through the express authority of the instrument that the power can be exerted. Jones on Mortgages, § 1774; Clark v. Wilson, 53 Miss. 119. It can be exercised only by those persons to whom it is expressly given, declares a recognized authority upon the subject. Hill on Trustees, p. 183*.

The question was ruled upon by the...