Rothschild v. Dougher

• Decision Date: 25 June 1892
• Citation: 20 S.W. 142
• Court: Texas Supreme Court
• Parties: ROTHSCHILD <I>et al.</I> v. DOUGHER <I>et al.</I>

20 S.W. 142

ROTHSCHILD et al. v. DOUGHER et al.

Supreme Court of Texas.

June 25, 1892.

Appeal from district court, El Paso county; T. A. FALVEY, Judge.

Action by Annie M. Dougher and husband against W. M. Chandler, trustee, and others, to restrain the sale of property under a trust deed. Judgment for plaintiffs, and defendants appeal. Affirmed.

Davis, Beall & Kemp, for appellants.

GAINES, J.

This suit was brought by Annie M. Dougher, joined by her husband, against W. M. Chandler, trustee, Theo. Rothschild, substitute trustee, and Charles Jacobs & Co., beneficiaries in a certain deed of trust executed by the plaintiffs, to enjoin the sale under the power in the deed of certain real estate, the property of the wife. Chandler, the original trustee, having declined to make the sale, Rothschild was appointed by the beneficiaries as his substitute, and at the institution of the suit had advertised the property for sale. The deed in trust was accompanied by the privy acknowledgment of Mrs. Dougher, but it was taken before W. M. Chandler as notary public, who is the same person that is named as the original trustee in the instrument. Upon this ground the court below held the deed in trust void, and entered a decree perpetuating the injunction. There were other grounds upon which the validity of the proposed sale was attacked, but the conclusion at which we have arrived renders it unnecessary to consider them.

The precise question here presented has never been passed upon in this court, unless it was in the case of Brown v. Moore, 38 Tex. 648. In the deed of trust under consideration there is no express provision allowing the trustee any compensation for executing the trust. In the case referred to the report does not make it clear whether the instrument which was there held void contained such express provision or not. We would infer from the statement of the case that it did not. But the court, in the opinion, say: "The trustee was interested in the conveyance to the extent of his commissions, and was therefore incompetent as an officer to take an acknowledgment of the deed." Whether the court determined that a trustee was entitled to compensation in the absence of an express provision in the deed allowing it, or whether they understood the deed as containing such express stipulation, it is impossible to say. But in either event, if we should hold that without such stipulation a trustee is entitled to remuneration for his services in making the sale, the decision would be in point, and would be decisive of the question before us. But we are not prepared to so hold; and, leaving that point undecided, we will treat the question before us from the other standpoint. Conceding, for the sake of the argument, that the trustee would not have been entitled to compensation for his services in making the sale, the question is, did he, in that case, have the power to take the wife's acknowledgment to the deed of trust? We think the case of Sample v. Irwin, 45 Tex 567, approaches very nearly a decision of the question. In that case the notary who took the acknowledgment of the deed of trust had signed it as agent of the beneficiaries, and for that reason the acknowledgment was held void. The court, in the opinion, say: "If the fact of agency raises a presumption of pecuniary interest, the case of Brown v. Moore is in point. But, whether such be the presumption or not, we think that one who identifies himself with the...