Ward v. Forrester

• Court: Texas Court of Appeals
• Writing for the Court: Fisher
• Citation: Ward v. Forrester, 87 S.W. 751 (Tex. App. 1905)
• Decision Date: 19 April 1905
• Petition History: writ dism'd
• Parties: WARD v. FORRESTER et al.<SMALL><SUP>*</SUP></SMALL>

87 S.W. 751

WARD v. FORRESTER et al.^*

Court of Civil Appeals of Texas.

April 19, 1905.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action by Robert Forrester and others against George W. Ward. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Hale, Allen & Dohoney, for appellant. S. W. Harman, for appellees.

FISHER, C. J.

The following statement is taken from appellant's brief: "Appellees brought this suit on September 16, 1901, in the form of trespass to try title, but in reality to establish the E. B. line of the E. A. Lipp survey, in Red River county, Tex., which said line is one of the W. B. lines of the Juan Amandaris survey. Appellant, in his second amended original answer, pleaded general denial and not guilty, and specially that he is the owner of the E. A. Lipp survey; that the description of said survey in the patent to E. A. Lipp is incorrect in the call for beginning corner, it calling to begin on the L. W. Burke E. B. line; that said survey was actually surveyed and located upon the ground long prior to the location and survey of the Amandaris survey, and the southwest or beginning corner located 199 varas east of the point called for in the patent; and that appellant is claiming as his boundaries the lines and corners so established; also pleading the statutes of limitation for three and five years, and improvements in good faith. At a former trial, judgment was rendered for plaintiffs, and on appeal was reversed and remanded. Ward v. Forrester, 80 S. W. 127. On a trial by the court without a jury on June 21, 1904, judgment was again rendered for plaintiffs. Defendant excepted and gave notice of appeal, filed assignments of error and appeal bond on June 16, 1904, and brings the case to this court for revision." The trial court filed conclusions of fact and law, which are in the record, and which are referred to and made a part of this opinion, but which we deem it unnecessary to copy. The findings of fact and conclusions of law are adopted by this court.

The first assignment of error complains of the action of the trial court in admitting in evidence a copy taken from the records of Dallas county of the resignation of J. T. Dargan as trustee under a deed of trust to the Security & Mortgage Company. The objection to the introduction of this instrument is that it is a copy not entitled to registration in Dallas county, for the reason that it does not appear that any of the lands covered by the deed of trust are situated in Dallas county; also because Dargan, as trustee, had no right to resign or refuse to act until he had been requested by the beneficiary in the trust deed. It appears from the recitals of this instrument, which is supposed to have been signed by Dargan, that it was not convenient for him further to act as trustee, and that he declined and refused to further act. This was dated May 1, 1895. Dargan was the trustee appointed by the deed of trust which was executed to secure a note to become due December, 1895. After the note became due, the holder of the note and the deed of trust appointed one Dinwiddie as substitute trustee, and sale was made by Dinwiddie, and under the deed executed by him the appellees hold the land in controversy. The deed of trust provides that in case of the death, or absence from Dallas county, Tex., or the refusal or inability from any cause whatever of the said Dargan, trustee, to act "as such trustee hereunder, then in either of such events the said Security Mortgage & Trust Company, or its legal representatives, or the legal holder of said note, shall have power to appoint a trustee," etc. It appears from the undisputed evidence of the witness Bregg that in 1893, at the time of the resignation of the said Dargan as trustee, he had removed from the state of Texas, and became a resident of the state of Georgia; and there is nothing whatever in the record tending to show that he had ever returned to the state of Texas or was in Dallas county at any time thereafter. If he was not a resident of Dallas county, Tex., or was absent from Dallas county, Tex., from 1893 up to the time that the appointment of the substitute trustee was made, the condition existed that authorized the appointment of such substitute, although Dargan had not formally resigned or refused to act; and, if we were prepared to hold that the objections of the appellant to the introduction in evidence of the copy of the instrument evidencing Dargan's resignation were well taken, the validity of the appointment could rest upon the fact that the residence of Dargan is shown to be Georgia. The place of residence, once established, would presume to...