Turner v. Another

• Decision Date: 01 January 1854
• Citation: 11 Tex. 620
• Parties: TURNER v. SMITH AND ANOTHER.
• Court: Texas Supreme Court

11 Tex. 620

TURNER

v.SMITH AND ANOTHER.

Supreme Court of Texas.

1854.

See this case as to the statute of limitations in connection with trusts.

The statute of limitations of two years will run against the owner of personal property, who has established a trust upon it, in favor of the possession of the cestui que trust, where the latter sets up an open, public claim to the property adverse to the owner and to the continuance of the trust, from the time when such adverse claim is brought home to the knowledge of the owner. (Note 88.)

It seems that a power to sell and pay a debt may be executed (where the property is in possession of the trustee), after the debt is barred by the statute of limitations; but however that may be, the debtor cannot recover the property from the purchaser without restoring the price.

Where the cestui que trust, when sued for the property which was personal, by the owner who had raised the trust to sell and pay a debt, pleaded adverse possession for two years, and afterwards delivered the property to the trustee and caused it to be sold under the trust and became himself the purchaser, and pleaded also the title so acquired, it was said to admit of a question whether the cestui que trust, by subjecting the property to sale under the deed of trust, ought to be held to have relinquished his previously acquired title.

Where a debtor conveys property in trust to be sold to pay debts, he cannot maintain an action to recover the property from a purchaser at the sale (although that purchaser be the creditor), because of defects in the sale, without refunding the purchase money, or offering to refund it. (This was as far as the case required the opinion to go.--REP.)

Error from Brazoria. Suit instituted by plaintiff in error, 6th September, 1844, against Morgan L. Smith and John Adriance, for the recovery of a slave, Jim, and his hire, etc. Defendants pleaded a general demurrer, general denial, statute of limitations, and title in themselves by purchase at Sheriff sale as the property of John D. Moore, who had purchased from Edwin Waller, they, the said Waller, Moore and defendants, having held and possessed said slave continuously as their own since the 20th July, 1842; and also (by amendment), by purchase at a sale made by Leonard Groce, after suit brought, as trustee, under a power created by the plaintiff, to secure the payment of a debt to Edwin Waller.

The facts were as follows: plaintiff proved that he owned the boy in 1841, his value, and the value of his services annually.

Defendant proved Waller's possession of the boy, using him as his property, in July, 1842; that at the close of 1842, or early in 1843, Waller sold said boy to Moore, who continued to use and possess said boy as his own until about the close of 1843, or early in 1844, when he was sold under execution as the property of Moore, and purchased by the defendants; the witness did not recollect hearing Waller say, when he saw said boy in his possession, in 1842, any thing about his owning him.

Plaintiff then read in evidence a deed of trust, dated August 17th, 1841, from Turner to Groce, of five negroes, including the boy Jim, to secure the payment to Waller of six thousand dollars, with authority to sell “as soon after the 1st day of January, next, A. D. 1842, when informed by said Waller that the said Turner has failed and neglected to pay his aforesaid debt of six thousand dollars, or at least three thousand dollars thereof, to the said Waller, his heirs or assigns, by giving ten day's notice in any public newspaper in the Republic of Texas, and with the moneys arising from the sale of said five negroes, pay and discharge the aforesaid debt, or that part of said debt, due as follows, to wit: one thousand dollars due on the first day of October, 1841, and two thousand dollars due on the first day of January, 1842, and the surplus, if any remains after fulfilling the trust aforesaid, pay over and return to the said Turner.” The deed of trust recited that it was given to secure the payment of the purchase money of a tract of land sold by Waller to Turner, and that it was made in pursuance of an agreement to that effect in the articles of purchase. He then proved that a sale of the said boy Jim was made under said deed of trust, at Columbia, on the 6th of May, 1848; that said sale was advertised in the Morning Star, a newspaper published in Houston, Harris county, for upwards of ten days before said sale; that there was no newspaper in Brazoria county; that the sale was made by Groce, six or eight persons present; no one bid except Morgan L. Smith, who bid the boy off for the defendants, at $350; witness presumed Smith brought the boy to the sale; he made no objection to the sale; knew that Smith had been in possession of the boy some time previous to the sale; that Groce exhibited a writing from Waller requesting Groce to make said sale.

The defendants then read in evidence (the plaintiff excepting in general terms) the deed from Groce to them. It recited the deed of trust; that Waller had informed the trustee that a portion of the said sums of one thousand dollars and two thousand dollars, had not been paid; that he, the trustee, had been requested by Morgan L. Smith, the present owner of the balance due on said two amounts, to proceed and sell said negro boy Jim, in pursuance of said trust; that Smith & Adriance had paid the purchase money, $350, “for which Smith, the present owner of the said debt, has this day receipted to me,” etc. They then read the note of Turner for $1,000 due October 1st, 1841, indorsed September 19th, 1841, to bearer. On this note was indorsed a receipt, dated April 15th, 1842, for $532.87, in cotton and $467.13 “as on account sale of negroes which were named in the deed of trust.” They also proved that the other note was lost in 1844; that there was then due on it upwards of $1,000; that said note had been transferred to Smith previous to the month of April, 1848; that said sale on the 6th of May, 1848, was made, and the proceeds applied to the balance due on the said two notes. The defendants then proved a judgment against Moore for $50, assigned to Turner; a sale of the boy Jim, in satisfaction thereof, in January, 1844, for $300, to the defendants. This amount was paid by the Sheriff to the defendants on a mortgage which they held from Moore on the boy Jim; and there was a receipt, without date, by Turner to the Sheriff, through the hands of the defendants, for the amount of the judgment, under which the boy was sold. It was proved that Turner at the time he received the money, “knew that the boy Jim had been sold to raise the amount of said execution;” that he at first objected to giving the receipt for the amount of said execution, on the ground that it might affect his right to the boy, but he afterwards accepted the money and gave the receipt. Defendants then proved that Waller had possession of the boy Jim as early as March or April, 1842; that Waller, at that time, claimed to hold said boy Jim, and the other four slaves mentioned in the deed of trust to Groce by virtue of a sale made under said deed of trust; but witness did not recollect that Waller stated the particulars about said sale.

The plaintiff then proved by a witness, that he saw Waller come to the house of W. Hansborough, where he lived, with this negro and other negroes, in the night time, about day-light; and said he had taken them, about eleven o'clock at night, from the place of Mr. Brown, where they had been for some time previous; that he had previously considered the negroes to be Turner's; that Waller carried them from Hansborough's place to his, Waller's place, in the morning, openly and publicly.

The defendants then proved by a witness, that some time before July, 1842, Turner told him that Waller had this boy, and that he, Turner, intended to bring suit for said boy, because he did not think that the sale under his deed of trust to Groce, under which Waller claimed said boy, was legally or fairly made.

There was a bill of exceptions in general terms to the admission of the execution under which the boy Jim was sold to the defendants; also to the admission of the deed of trust from Moore to the defendants.

The following instructions were asked by the plaintiff and refused by the Court:

“4th. That if the jury believe, that at the time the sale was made at Columbia, the notes, to secure which the deed of trust (under which the sale was made) was given, were barred by the statute of limitations, then the trustee had no power to sell.

5th. That the deed of trust itself would cease to be the foundation of an action four years after the time at which an action could be brought upon it.

6th. That any act predicated upon said deed four years after the time at which a suit could have been brought upon it would be nugatory.

9th. That the possession of the negro by Groce, at the sale in Columbia, was the possession of the plaintiff, and would itself defeat the defendants' plea of the statute, so far as they claim under such sale.

12th. That the jury must believe that the defendants have made out a good claim under one or the other or all the titles he sets up.

13th. That the possession of Waller was the possession of Turner.

14th. That Waller, if he had any title, must hold under deed from the trustee after sale made in strict compliance with the deed of trust; and that no wrongful or clandestine taking of the negro would put Waller in possession adverse to Turner.

17th. That Smith admitted the title of the negro to be in Groce, the trustee, by delivering the negro to him to be sold to pay Turner's debts; and by accepting a deed from Groce, the trustee, he is estopped from showing the title to be in any one else than Groce as trustee for Turner.

18th. That Smith & Adriance could take no title under a sale made under the deed of trust after the institution of the suit.”

Verdict and judgment for def...