Polk v. Dale

Calhoon, J., delivered the opinion of the court. This litigation arises out of a bill in equity filed by the beneficiaries in a trust deed to confirm their title to certain land, and the prayer is for such confirmation, or, if mistaken in the relief prayed for, then for a lien to be declared in their favor on the land for the amount of the debt. On the proceedings the chancellor declared void two sales made by the substituted trustee, but he did declare the lien and ordered, in default of payment, that the land be sold. From this decree there was an appeal by the defendants to the original bill. The first sale by the substituted trustee was manifestly void, because of the failure to record the substitution, under repeated rulings of this court. This sale being void, the substituted trastee made another sale, in which he pursued exactly the stipulations in the trust deed as to the time, terms, and mode of ad [669] vertising. He did not, however, make the sale at the place specified in the trust deed, which place, in that instrument, is specified as S. S. Dale’s store, because the lands were in one county and S. S. Dale’s store in another county. It must be observed that this deed was executed pending the operation of chapter 103, p. 109, of the acts of 1896, which provides that sales under trusts should be made -in the county in which the land is located. Because of this statute, the substituted trustee had the advertisement of sale according to the trust deed, but to be made at the courthouse of the county in which the lands were. - It is contended, under this state of facts that the trust deed was not silent as to the place of sale, and that therefore all the provisions must be regarded as expunged, and that the sale could only be made pursuant to Code of 1892, § 2484, which provides that: “If a deed of trust or mortgage, with a power of sale, be silent as to the place and terms of sale and mode of advertisement, the sale may be made, after condition broken, for cash, upon such notice and at such tibie and place as is required for sheriff’s sale of like property.” As to this, we differ from the learned chancellor. Inasmuch as the trust deed designates a place at which it was impossible to make a sale because of chapter 103, p. 109, of the acts of 1896, we think that the sale may be advertised to be made and made at the place designated by section 2484 of the Annotated Code of 1892, which was done. We think that the rights of the beneficiaries could not be affected as to the valid provisions because of the invalid one as to the place of sale. This is distinctly held in Kerr v. Galloway 94 Tex. 64 S. W. 858. That case holds that, where there is a conflict between the statutory place and the place designated by the mortgage or trust deed, the land must be sold as designated by the statute, and that such conflict between the statute and the trust deed does not render the power wholly inoperative, and that the law is to be read into the contract and controls it. ■ [670] We are clearly of the opinion that by tbe first void sale tbe trustee did not exhaust his power, and that tbe vitality of tbe contract in tbe trust deed was in no wise affected, and tbe trustee bad full power to readvertise and sell again, as if tbe sale had not occurred. 28 Am. & Eng. Ency. of Law (2d ed.) 811, and note 10 thereunder. This being our conclusion, appellants got more than they were entitled to under tbe final decree, and have no ground for complaint, and tbe appellant, not having appealed, is bound by it. Therefore the case is affirmed.