Walters v. Webster

• Citation: 52 Colo. 549,123 P. 952
• Parties: WALTERS v. WEBSTER.
• Decision Date: 01 April 1912
• Court: Supreme Court of Colorado

123 P. 952

52 Colo. 549

WALTERS v. WEBSTER.

Supreme Court of Colorado

April 1, 1912

Rehearing Denied June 3, 1912.

Appeal from District Court, Kit Carson County; J. W. Sheafor, Judge.

Action by B. M. Webster against Albert Walters. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

George W. Taylor, for appellant.

Allen &amp Webster, of Denver, for appellee.

GABBERT, J.

Appellee plaintiff below, brought suit against appellant, as defendant, to quiet title to a tract of land in Kit Carson county. The defendant filed an answer denying that plaintiff was the owner of the property in controversy, and alleged that he, the defendant, was the owner of the premises in fee. To this answer a replication was filed. The judgment was in favor of plaintiff, and defendant has brought the case here for review on error.

Plaintiff deraigned title by foreclosure of a trust deed executed by the grantee in the patent issued by the government. Foreclosure proceedings and the trustee's deed were by a substituted trustee. The deed of trust provided that, in the event the trustee named was incapacitated from or refused to act, then the legal holder of the note secured by the deed of trust should have the option of substituting a trustee by writing, duly acknowledged, whose acts and doings should be as effectual and binding as if done by the original trustee. The trust deed also provided that the recitals in the deed executed by the trustee should be prima facie evidence of the facts thereby stated. Two objections were urged against the introduction of the trust deed: (1) That it did not appear the party assuming to act as substituted trustee had been appointed in accordance with the terms and conditions of the trust deed; and (2) that the indebtedness secured by the trustee's deed was barred by the statute of limitations at the time of the foreclosure of the deed of trust.

The first objection was well taken, and should have been sustained. The deed of trust expressly provides that a substituted trustee can only be appointed by the holder of the note by writing, duly acknowledged. There is no statement in the trustee's deed that the party who acted as substituted trustee was appointed in this manner. The powers of a trustee depend upon the terms of the instrument appointing him, or providing for his appointment. If the manner of his appointment is specified, it must be followed and no power is conferred upon him to act unless it is. Bent-Otero Imp. Co. v. Whitehead, 25 Colo. 354, 54 P. 1023 71 Am.St.Rep. 140; Polle v. Rouse, 73 Miss. 713, 19 So. 481; Bonner v. Lessley, 61 Miss. 392; 2 Perry on Trusts, § 602p.

In the absence of a recitation in the trustee's deed, executed by the substituted trustee, to the effect that he had been appointed in the manner the deed of trust provided, the trust deed was not prima facie evidence of title in plaintiff. In order to make it competent evidence of title, it was necessary for him to prove by evidence aliunde that the appointment was in accordance with the terms of the trust deed. He offered no evidence of this character. As his title depended entirely upon the trustee's deed, and it had been put in issue by the answer, it is clear that a judgment quieting title in him should not have been rendered, even though the defendant failed to establish title in himself. Clark v. Huff, 49 Colo. 197, 112 P. 542.

The second objection was properly overruled. Even if the indebtedness secured by the deed of trust was barred by the statute of limitations, so that an action in a court of law could not be maintained thereon, this would not prevent a foreclosure of the deed of trust containing a power of sale. In other words, the statute of limitations does not bar the exercise of the power of sale contained in a deed of trust given as...