Wilson v. Armstrong

• Court: Texas Court of Appeals
• Writing for the Court: Walker
• Citation: Wilson v. Armstrong, 236 S.W. 755 (Tex. App. 1921)
• Decision Date: 04 November 1921
• Docket Number: (No. 709.)
• Parties: WILSON v. ARMSTRONG.

Page 755

236 S.W. 755

WILSON v. ARMSTRONG.

(No. 709.)

Court of Civil Appeals of Texas. Beaumont.

November 4, 1921.

Rehearing Denied January 4, 1922.

Appeal from District Court, Hardin County; J. L. Maury, Judge.

Suit between F. S. Wilson and George W. Armstrong. From a judgment in favor of the latter, the former appeals. Reversed and remanded for new trial.

C. W. Nugent, of Galveston, and A. M. Hill, of Kountze, for appellant.

Orgain & Carroll, of Beaumont, for appellee.

WALKER, J.

This was a suit in trespass to try title. F. H. Carpenter was the common source of title to the land in controversy. Appellee claimed under a deed executed to him by the sheriff of Hardin county of date August 1, 1913—

"by virtue of a certain execution issued out of the district court of Hardin county, Tex., in favor of First National Bank of Sour Lake v. F. H. Carpenter, on a certain judgment rendered on the 20th day of April, 1905, and directed and delivered to me, as sheriff of Hardin county, commanding me, of the goods and chattels, lands, and tenements of the said F. H. Carpenter to make certain moneys in said writ specified."

Appellant claimed under a deed executed and delivered on the 12th day of February, 1907, by J. R. Davenport, substitute trustee, made under the provisions of the deed of trust, containing the following power of sale:

"Now if said note is paid at its maturity, together with all interest and charges of whatsoever kind and character thereon, then this deed of trust shall become null and void and be of no further force and effect, and shall be released at the cost and expense of the said F. H. Carpenter and J. M. Carpenter, but if default should be made in the payment of said note at its maturity, it shall then by the duty of the said C. M. Votaw, or his successor in this trust, or substitute trustee, at the request of the owner and holder of said note, to sell the above-described land for cash at the court-house door of Hardin county, Tex., on the first Tuesday in any month between the hours of 10 o'clock a. m. and 4 o'clock p. m., after having first given notice of the time, place, and terms of said sale by posting written or printed notices thereof at three public places in Hardin county, Tex., one of which shall be at the door of the courthouse of said county, for at least 20 days prior to the day of sale, and by delivering or mailing to the said F. H. Carpenter a written or printed notice of said sale at least 20 days prior to said sale, and to apply the proceeds of said sale, first, to the costs of making said sale, including a commission of 5 per cent. to said trustee, and to apply the balance to the payment of said note, interest, and attorneys' fees, and, if any balance then remain, the same shall be paid to the said F. H. Carpenter.

"Should the said C. M. Votaw, for any reason, become incapable and unwilling or refuse to perform the duties of this trust, the said F. S. Wilson, or the legal owner and holder of said note, shall have the power to appoint a substitute or substitutes, who shall have all the powers herein conferred on the said Votaw, said appointment to be made in writing, and written notice thereof to be given by mailing same or by personal delivery thereof to the said F. H. Carpenter, and the power of substitution and appointment by the said Wilson, or other holder of said note, to continue so long as may be necessary for the proper execution of his trust."

This deed of trust was executed by F. H. Carpenter and wife to C. W. Votaw, as trustee, on the 22d day of November, 1904, to secure appellant in the payment of a note in the sum of $4,000, executed and delivered to him by F. H. Carpenter and J. M. Carpenter.

On conclusion of the testimony, both parties filed motions for instructed verdicts. Appellant's motion was denied and appellee's granted. On the verdict thus returned, judgment was entered for appellee for the land in controversy. Appellant has duly perfected his appeal from such judgment, assigning errors.

At the threshold of this case, we are met with the objections and exceptions of appellee to appellant's assignments of error and his propositions thereunder. Without discussing the objections in detail, they seem to us to be well taken, as, among other defaults in his briefing, appellant has improperly grouped his assignments of error and propositions, has made defective statements under his propositions, has not made proper references to the record, and has not numbered his assignments according to the rules. Some of these objections might be considered as mere technicalities, but most of them go to the very root of good briefing, and we do not feel authorized to ignore such objections when urged by the injured party. Appellant's counsel, on oral argument, asked permission to withdraw his briefs, so that he could meet the objections thus raised, basing his motion on the fact that he has been sick almost continuously since the trial of the case, and has not been able to give his attention to his legal business, saying that he was confined to his bed when the brief was written, and was not able to examine it after the stenographer had it done, and that he had not had time to examine appellee's brief until a few moments before submitting the case on oral argument. Appellee's brief and objections were filed on the 29th of August last, and appellant's counsel conceded that he received a copy of same in due time. Appellee contests appellant's right to have this case rebriefed.

Without discussing the merits of this motion, we deny the same, as under Harlington Land & Water Co. v. Houston Motorcar Co. (Com. App.) 209 S. W. 145, and Southwestern Settlement & Development Co. v. Village Mills Co., 230 S. W. 869, it is our duty to review the facts of this case on the assignment of fundamental error, made by appellant on oral argument, that the court had refused to submit to the jury an issue of fact raised by the evidence and disclosed by appellant's brief.

Under this assignment of fundamental error, and only for the purpose of this opinion, we adopt as a correct analysis of the facts of this case, as reflected by the briefs of the parties, appellee's following proposition:

"The undisputed evidence in this case shows that the appellee has the legal title to the land in this suit, from and under the agreed common source of title, by deeds duly executed and registered, unless the appellant acquired the legal title to the land in dispute under the purported substitute trustee's sale of date February 5, 1907."

We can best discuss this assignment of fundamental error by following appellee's propositions attacking the validity of the sale made by the substitute trustee, as follows:

First Proposition: "The undisputed evidence adduced upon the trial of the cause showing that F. S. Wilson did not appoint F. R. Davenport as substitute trustee in the place of C. M. Votaw, but that the appointment was made by a person other than F. S. Wilson, the purported sale by J. R. Davenport, as substitute trustee, of the land in this suit to F. S. Wilson was wholly void."

Of course, if appellee has correctly construed the facts, this proposition is sound, for a sale by a substitute trustee, not appointed by one authorized so to do under the terms of the deed of trust, is void, and does not divest the title out of the maker of the deed of trust. Boone v. Miller, 86 Tex. 74, 23 S. W. 574. And as such a deed is void, as distinguishable from mere voidable (Bracken v. Bounds, 96 Tex. 200, 71 S. W. 547; Bomar v. West, 87 Tex. 299, 28 S. W. 519; Boone v. Miller, 86 Tex. 74, 23 S. W. 574; Bowman v. Oakley, 212 S. W. 549), appellee was not barred, under the four years' statute of limitation, duly pleaded by appellant, from attacking this deed (Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815).

But we do not agree with appellee in the construction of these facts. There was offered in evidence an instrument in writing, purporting to have been duly executed and acknowledged by appellant, appointing J. R. Davenport substitute trustee. In its terms, this instrument was in compliance with the conditions of the deed of trust. Appellant, the notary public before whom this instrument was executed, Judge C. W. Nugent, and F. H. Carpenter, all swore to the execution of this instrument. If it be conceded that these witnesses were so interested in this case as to carry to the jury the truthfulness of their testimony, at least, such testimony was sufficient to raise the issue of the due execution of such appointment. If this be conceded, then appellee urges the further proposition:

"The undisputed evidence in this case showing that the substitute trustee, J. R. Davenport, was appointed by F. H. Carpenter, and that the judgment drawn purporting to be a designation of J. R. Davenport as substitute trustee, if signed by F. S. Wilson, was signed by him simply because he was requested by F. H. Carpenter and C. W. Nugent to sign the same, after J. R. Davenport had been appointed substitute trustee by F. H. Carpenter, the appointment of Davenport was never made as was contemplated by the deed of trust, and the act of Wilson, if in fact he signed the same, did not constitute an appointment as contemplated by the terms of the deed of trust, and the same made by Davenport thereunder as substitute trustee was wholly void," citing Michael v. Crawford et al., 108 Tex. 354, 193 S. W. 1070.

That case does not sustain his proposition. It held that, where an attorney in fact for a beneficiary, acting under the authority given him by his appointment as such attorney, designated a substitute trustee, and after sale by the substitute trustee the beneficiary, by an instrument in writing, ratified such appointment, such sale was void. All that case holds is well stated in the fifth syllabus, as follows:

"The right to appoint a substitute trustee under a power of sale is in the nature of a personal trust, not to be delegated,...