Williams v. Armistead

• Decision Date: 25 November 1905
• Citation: 90 S.W. 925
• Parties: WILLIAMS et al. v. ARMISTEAD et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 925

90 S.W. 925

WILLIAMS et al. v. ARMISTEAD et al.^*

Court of Civil Appeals of Texas.

November 25, 1905.

Appeal from District Court, Marion County; P. A. Turner, Judge.

Suit by W. T. Williams and others against W. T. Armistead, trustee, and others. From a decree for defendants, certain plaintiffs appeal. Reversed.

Rehearing denied December 16, 1905.

Geo. T. Todd, Chas. S. Todd, and F. H. Prendergast, for appellants. John W. Wray, for appellees.

RAINEY, C. J.

This is an injunction suit brought by W. T. Williams, as executor, Emma Wareham, and Helen D. Smith against W. T. Armistead, trustee, and E. W. Taylor, to enjoin them from foreclosing a trust deed by selling the land specified in said trust deed. A general demurrer was sustained to plaintiffs' petition, and, plaintiffs declining to amend, the suit was dismissed, except as to the claim of Emma Wareham, whose claim to 60 acres of the land in Marion county was confessed, and judgment to the extent of 60 acres was rendered in her favor, from which there is no appeal. Williams and Smith appeal.

The facts stated in the petition are that on May 27, 1887, J. T. Smith conveyed to W. T. Armistead, in trust with power of sale, certain lands to secure the payment of a note, with interest, etc., executed by said Smith to E. W. Taylor, and that on June 1, 1903, the said W. T. Armistead, as trustee, advertised under said deed of trust said land to be sold on July 7, 1903, to prevent which the injunction herein was sued out. The petition further sets out: That said J. T. Smith on February 1, 1889, by warranty deeds, sold and conveyed said land, part to W. J. Williams and part to Mistress Grey, which last part is now owned by Mrs. Wareham. That on April 2, 1889, by an unlawfully substituted trustee, said land was advertised and sold and bought in by one Connery for an amount sufficient to pay off and cancel said indebtedness, which amount was paid to and accepted by said Taylor in satisfaction thereof, whereby said mortgage lien was extinguished. On March 4, 1894, more than four years after the maturity of said note, said W. J. Williams died, leaving a will appointing W. T. Williams as independent executor of his estate, who qualified as such, which administration is still open and pending, and that by reason of which the powers of W. T. Armistead to sell under said trust deed were extinguished. On September 3, 1897, J. T. Smith died, leaving Helen D. Smith as his only heir. That a suit was brought by W. T. Williams, as executor, against the parties claiming an interest in said land, to recover said land, in which it was decreed that the sale of the land by the substituted trustee under said deed of trust was a nullity, and title to said land was decreed to be in W. T. Williams, as executor. Statute of limitation was plead to the note, and the three, five, and ten year statutes of limitation as to the land was also plead. The foregoing states the substance of the petition with sufficient certainty to disclose the points made upon which a recovery is based and which were set forth in the petition with sufficient and proper averments. By the allegations of the petition it is shown that after the execution of the trust deed Smith conveyed the land to W. J. Williams, who subsequently died. When Williams took the land, it remained incumbered, and was subject to the payment of said debt secured by the trust deed. While Williams during his lifetime held the equity of redemption in said land, it was subject to the provisions of the deed of trust, which provisions could have been...