Miller v. Knowles
| Decision Date | 26 February 1898 |
| Citation | 44 S.W. 927 |
| Parties | MILLER v. KNOWLES. |
| Court | Texas Court of Appeals |
Trespass to try title by C. O. Knowles against M. V. Miller. There were verdict and judgment in favor of plaintiff, and defendant prosecutes error. Affirmed.
Jas. R. Robinson, for plaintiff in error.
This was a suit of trespass to try title, brought by C. O. Knowles against M. V. Miller, January 30, 1896, to recover lots 18 and 19, in block 2, Wolcott's addition to the city of Ft. Worth, and rents at the rate of $10 per month. The defense was the general denial and not guilty. The case was tried by a jury, whose verdict was in favor of the plaintiff, Knowles, for the lots in controversy, under peremptory instruction of the court, and for $99 rents, found upon consideration of the evidence.
The record discloses that both parties deraigned title from F. M. Marple as a common source. Marple had given two mortgages on the property. The first, and superior, was given to Herbert E. Ball, as trustee, August 15, 1890, to secure O. S. Bowman in a negotiable note for $650, payable to the said Bowman, due September 1, 1895, bearing interest at the rate of 12 per cent. per annum from date. This mortgage conferred upon Ball power of sale, in case of default in the payment of the sum due at maturity, and also provided that, in case Ball failed or refused to act, then "Bowman and his assigns" should have power to appoint in writing a substitute trustee, who should have the same powers as were therein conferred upon Ball. The mortgage also provided that any recitals contained in the conveyance made by the trustee should be prima facie evidence of the facts therein stated. Plaintiff introduced in evidence a deed to the lots, made by George K. Williams, as substitute trustee, to C. O. Knowles, dated October 7, 1895. This deed recited the appointment of said Williams as substitute trustee by C. O. Knowles; that the note had matured, and proper advertisements and notices had been given of the sale; that the sale had been duly made by said Williams, and that Knowles was the purchaser at said sale; and that said Knowles was the owner and holder of the note by assignment from Bowman at the time Williams was appointed substitute trustee. Plaintiff also put in evidence an instrument in writing, dated September 3, 1895, executed by C. O. Knowles, reciting that he was the owner and holder of the notes and coupons described in the mortgage, and that Herbert E. Ball had refused to act as trustee, and appointing George K. Williams trustee in the place of Ball. Ball joined in the instrument, as is stated therein, for the purpose of attesting his refusal to act as trustee under the aforesaid mortgage. Knowles also put in evidence the $650 note aforesaid, which was indorsed in blank by O. S. Bowman. On the issue of rents, the evidence of Miller's possession is very meager,—not sufficient, we think, to prove that Miller was in actual possession of the property at the date of filing this suit, and until the day of trial, but amply sufficient to prove that the rental value of the premises during that time was $6 per month, and amounted to $99.
The defendant, Miller, objected to the introduction of the instrument appointing George K. Williams as substitute trustee, and also to the introduction of the trustee's deed made by Williams to Knowles (1) upon the ground that the deed of trust or mortgage required that both "Bowman and his assigns" should join in the appointment of a substitute trustee, and that this appointment, having been made by Knowles, the assignee, only, was void, because Bowman did not join therein; and (2) because the deed made by Williams as trustee was also void, for want of authority to...
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