Thomason v. Pacific Mut. Life Ins. Co.

• Decision Date: 05 July 1934
• Docket Number: No. 3033.,3033.
• Citation: 74 S.W.2d 162
• Parties: THOMASON et al. v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.
• Court: Texas Court of Appeals

Page 162

74 S.W.2d 162

THOMASON et al. v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.

No. 3033.

Court of Civil Appeals of Texas. El Paso.

July 5, 1934.

Rehearing Denied July 30, 1934.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by the Pacific Mutual Life Insurance Company of California against George W. Thomason and others. From a judgment in favor of the plaintiff, defendants appeal.

Corrected and affirmed.

W. R. Fly, of Dallas, for appellants.

Marshall Thomas and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.

HIGGINS, Justice.

The Pacific Mutual Life Insurance Company of California brought this suit against Geo. W. Thomason and wife, Betty Thomason, to recover a lot in the city of University Park in Dallas county, and for damages.

Upon trial without a jury the plaintiff recovered the property and rents in the sum of $275, from which the defendants appeal.

On March 2, 1927, G. L. Crofford, Sr., purchased for $2,000 the lot in controversy from the University Park Development Company as a gift to his son, Geo. L. Crofford, Jr., for a home. In consummation of such gift Crofford, Sr., caused the seller to convey the lot to Crofford, Jr.

On March 7, 1927, Crofford, Jr., and wife in due form granted to J. B. Watson a contractor's and materialman's lien upon the lot to secure the payment of a note for $7,500 given to pay for the erection of a residence upon the lot.

By deed dated June 9, 1927, Crofford, Jr., and wife conveyed the lot to Geo. I. Cochran and Lee A. Phillips, in trust to secure the payment of a $7,500 note of Crofford, Jr., and wife, in favor of the plaintiff.

This transaction was a refinancing of the note and lien in favor of Watson; the said Watson note having been transferred to the plaintiff. The deed of trust contained the usual provisions subrogating the plaintiff to the Watson contractor's and materialman's lien.

By deed dated April 27, 1929, Crofford, Jr., and wife conveyed the lot to Geo. W. Thomason for the consideration of $6,000. The deed recites the conveyance was subject to the note mentioned. Default was made in the payment of the note. Cochran and Phillips refused to act further as trustees and declined to sell the lot, whereupon the Insurance Company, in writing, appointed Marshall Thomas as substitute trustee and requested him to sell under the power of sale conferred by the deed of trust. After notice the trustee on December 6, 1932, sold the lot at public sale; the Insurance Company being the purchaser and to whom the trustee executed a deed.

The suit was filed December 9, 1932. On the same date writ of sequestration issued. On December 17, 1932, the property was replevied by Geo. W. Thomason. The replevy bond was executed by Geo. W. Thomason, as principal, with Y. L., J. A. and B. H. Thomason, as the sureties named in the face of the bond. Thomason Oil Company, a firm composed of G. W. and Y. L. Thomason, also signed the bond as surety.

Opinion.

The appellants' theory is that because Crofford, Sr., paid the consideration for the conveyance of the lot to Crofford, Jr., by the Development Company a resulting trust in favor of Crofford, Sr., was created and that this superior equitable title passed to Geo. W. Thomason because in purchasing the lot Thomason dealt with and paid Crofford, Sr., who represented that he was the owner and that Crofford, Jr., held the title in trust for Crofford, Sr. As we understand appellants' theory, it is that Thomason thus became an innocent purchaser for value of the superior equitable title of Crofford, Sr.

And in this connection appellants further contend that under the statute of frauds parol evidence was inadmissible to rebut the presumption of a resulting trust in favor of Crofford, Sr., arising out of the payment by the latter of the consideration for the lot.

Both of the Croffords testified the property was bought by Crofford, Sr., as a gift to Crofford, Jr., upon which the latter was to establish a home. Under such circumstances no resulting trust was created and parol evidence was admissible to so show. 3 Pomeroy's Eq. Jur. (3d Ed.) § 1040; Atwell v. Watkins, 13 Tex. Civ. App. 668, 36 S. W. 103.

The testimony of the Croffords that the conveyance was intended as a gift to Crofford Jr., was undisputed, and the court properly found that the legal and equitable title to the property vested in Crofford, Jr.

Crofford, Sr., having no character of title, it follows that all theories must fail which are predicated upon the assumption of a resulting trust in favor of Crofford, Sr.

The deed of trust authorized the sale of the land for cash in hand or on credit and application of the proceeds, first, to the payment of the expenses of executing the trust, and, second, to the payment of said note.

At the trustee's sale the land was sold to the plaintiff upon its bid of $3,000. This sum was not actually paid in cash, but was applied as a credit upon the note.

The point is made that the failure to require payment of the bid in cash invalidates the trustee's sale.

The credit upon the note was equivalent to receiving cash. 41 C. J. p. 977, § 1427.

It would have been an idle ceremony for the trustee to have required the plaintiff to actually pay its bid in cash which would be immediately returned by the trustee to plaintiff. Blum v. Rogers, 71 Tex. 668, 9 S. W. 595; Needham v. Cooney (Tex. Civ. App.) 173 S. W. 979.

The instrument appointing the substitute trustee was executed by the plaintiff acting through Rich J. Mier, vice president, and attested by an assistant secretary, and the corporate seal affixed.

Under such circumstances it is presumed the appointment was the duly authorized act of the corporation. Browne v. Investors' Syndicate (Tex. Civ. App.) 60 S.W.(2d) 1047; Compton v. Republic B. & L. Ass'n (Tex. Civ. App.) 67 S.W.(2d) 1095; Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Texas Auto Co. v. Arbetter (Tex. Civ. App.) 1 S.W.(2d) 334; Brooks v. Zorn (Tex. Civ. App.) 24 S.W. (2d) 742.

The deed of trust provides: "It is hereby agreed by the parties hereto that, in any deed or deeds given by the trustees, or either of them, or any substitute trustee, hereunder, any and all statements of fact or other recitals therein made as to the non-payment of the money secured, or as to notice of the time, place and terms of sale of the property to be sold being duly published, as to any other preliminary act or thing having been done by said Trustees, or either of them, or substitute trustee, or as to the existence of the facts authorizing the appointment of a substitute trustee, and of his due appointment, shall be taken by any and all courts of law and equity as prima facie evidence that said statements do state facts, and without further question shall be accepted as such."

The trustee's deed recites advertisement of the sale "by posting three written notices of said proposed sale in three public places in Dallas County, Texas, one of which notices was posted at the court house door in said City and County of Dallas, and all of said notices having been posted for three successive weeks next before the date of said sale."

The court found that written notices of sale were "posted at three public places in Dallas County, Texas, one of which notices was posted at the Court House door, one posted at the fire station of the Town of Highland Park, and another posted at the fire station of the Town of University Park, all three places being public places in the County of Dallas, Texas."

The substitute trustee, Thomas, testified one notice was posted at the courthouse door, one at the fire station in Highland Park, and one at the fire station in University Park.

In Phipps v. Fuqua (Tex. Civ. App.) 32 S. W.(2d) 660, it was held that the posting of two of the required notices of a trustee's sale at two public places within the city limits of the city of Hereford was not in compliance with article 3810, Rev. St., and a sale made by virtue of such posting was void. A like ruling was made by the same court in Holmes v. Klein (Tex. Civ. App.) 59 S.W.(2d) 171.

It is urged the posting in the present case was insufficient under the holdings in the cases mentioned.

To so hold we would have to assume that the...