Tarrant Savings Association v. Lucky Homes, Inc.
| Decision Date | 14 April 1965 |
| Docket Number | No. A-10262,A-10262 |
| Citation | 390 S.W.2d 473 |
| Parties | TARRANT SAVINGS ASSOCIATION, a Corporation, Petitioner, v. LUCKY HOMES, INC., et al., Respondents. |
| Court | Texas Supreme Court |
Brown, Herman, Scott & Young and A. J. Bryan, Fort Worth, for petitioner.
McDonald, Sanders, Nichols Wynn & Ginsburg, Fort Worth, for respondents.
This is a suit by Tarrant Savings Association, petitioner, plaintiff in the trial court, seeking a deficiency judgment after a foreclosure under a deed of trust previously executed by Lucky Homes, Inc., et al., respondents, in favor of petitioner. Following the conclusion of the evidence the trial court withdrew the case from the jury except as to one issue on the market value of the property foreclosed on at the time of the foreclosure sale. The court entered judgment for petitioner for the deficiency in the sum of $1258.81. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for a new trial. 379 S.W.2d 386.
In the trial of this cause petitioner maintained its burden to establish its case by introducing its note from respondents in the amount of $2,500. Day v. Cooper, 175 S.W. 485, Tex.Civ.App., no writ hist.; Citizens' Garage Co. v. Wilson, 252 S.W. 186, Tex.Civ.App., no writ hist. See Lewin v. Houston, 8 Tex. 94, and Page v. Carson, 16 S.W. 1036 (Tex.Comm.App.). A credit of $1,200 was allowed as a result of the sale of certain property which had been mortgaged to secure petitioner in its note. Once petitioner's case had been made out the burden shifted to the respondents, defendants in the trial court, to show some reason for denying recovery to petitioner. Citizens' Garage Co. v. Wilson, supra; Brenard Mfg. Co. v. Barnett, 210 S.W. 990, Tex.Civ.App., no writ hist. See Newton v. Newton, 77, Tex. 508, 14 S.W. 157, and Reed v. Buck (Tex.Sup.Ct.), 370 S.W.2d 867. The question to be decided here concerns whether respondents have sustained this burden so as to raise a fact issue relating to some defense to petitioner's right of recovery on its suit for deficiency. We hold that respondents have failed in this respect.
Respondents attempt to defeat petitioner's case by showing the an improper credit has been allowed against their note. It is respondents' theory that the foreclosure sale whereby the mortgaged property was sold for $1,200 was invalid because proper legal notices were not posted as required by statute. The only proof put forward by respondents to maintain their burden on this defensive matter related to the fact that the substitute trustee had not posted by notices himself nor did he know whether in fact they had been posted. Petitioner had introduced in evidence the substitute trustee's deed of conveyance with its recitations that E. B. Conley, the substitute trustee, had posted proper notices as provided for in the deed of trust. Respondents urge that by proving that this recitation was erroneous the presumption that Conley properly posted the notices had been destroyed. They are correct in this contention, but they have simply not gone far enough. The destruction of the presumption does not raise a fact issue as to whether O. W. White, the original trustee, properly posted the notices. It was their burden to prove that notices were not posted, and all that they have done is prove that the substitute trustee did not post them, not that they were not posted. From the record it is apparent that the substitute trustee could not have posted proper notices since he was appointed only four days prior to the foreclosure sale.
At the time the notices should have been posted White was the only one authorized by the deed of trust to post them. Respondents make no attempt to show that White did not in fact post the notices. When an original trustee properly posts the notices required by law, there would be no necessity for re-posting, and the substitute trustee could have made a valid sale. Gamble v. Martin et al., 60 Tex.Civ.App. 517, 129 S.W. 386, no writ hist.
Under respondents' theory that a fact issue had been raised with respect to whether or not proper notices had been posted, the only question under this record which could have been submitted to the jury was whether or not White had failed to properly post notices. There is no evidence presented which would support an affirmative finding to such an issue. It is therefore our opinion that respondents have merely shown that the substitute trustee, Conley, has not posted the proper notices, not that said notices were not in fact posted. Respondents have thus failed to maintaidn Respondents have thus failed to maintain
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Elmore v. McCammon
...is immaterial as a matter of law. American Savings & Loan Ass'n v. Musick, 531 S.W.2d 581 (Tex.1976); Tarrant Savings Ass'n v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1964). The Court thus grants summary judgment in favor of Defendants Scott, Perry and Heights Savings Association on the issu......
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Sunjet, Inc. v. Ford Motor Credit Co.
...one sentence to the issue and relies for its holding on two cases which did not arise under the U.C.C., Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1965), and Fryer & Willis Drilling Company v. Oilwell, Division of United States Steel Corporation, 472 S.W.2d 857 (T......
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DTND Sierra Invs. LLC v. Bank of N.Y. Mellon Trust Co.
...(citing Lucky Homes, Inc. v. Tarrant Savings Ass'n, 379 S.W.2d 386, 388 (Tex.Civ.App.-Fort Worth 1964), rev'd on other grounds,390 S.W.2d 473 (Tex.1965)). Accordingly, Texas courts have viewed a deed of trust as a mortgage with the power to sell the property on default. See, e.g., Johnson v......
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CECIL STEPHENSON, JR v. DIANN LEBOEUF
...See Lucky Homes, Inc. v. Tarrant Sav. Ass'n, 379 S.W.2d 386, 388 (Tex. Civ. App.-Fort Worth, 1964), rev'd on other grounds, 390 S.W.2d 473 (Tex. 1965). The power of the trustee to sell the deed for the parties is derived solely from the trust instrument. See Bonilla v. Roberson, 918 S.W.2d ......