Opinion
No. 3936.
January 15, 1931.
Appeal from District Court, Lamar County Newman Phillips, Judge.
Action by Mrs. Martha E. Nettleton and another against C. E. Holcomb. Judgment for plaintiffs, and defendant appeals.
Affirmed.
The suit was one of trespass to try title, brought by appellees, Martha E. Nettleton and Roy Nettleton, against appellant, C. E. Holcomb, in which judgment was rendered in favor of appellees for the land they sued for, to wit, 48 acres of the Moses Williams survey in Lamar county and 15 acres of the Wiley Witherspoon survey in the same county.
At the trial it was agreed that appellant had the title to the land March 13, 1918, when he conveyed it to appellee Martha E. Nettleton in consideration of $900 then paid by her out of her separate estate and the execution and delivery by her and her husband, James A. Nettleton, who died in 1925, of described promissory notes payable to appellant's order. To prove that he had reacquired the title, appellant offered and the court admitted as evidence instruments in writing, made at dates subsequent to said March 13, 1918, as follows: (1) Transfers of the notes and lien created to secure them from appellant to T. M. Scott; from T. M. Scott to the American Freehold Mortgage Company, of London, Limited; from said freehold mortgage company to the Prudential Insurance Company of America; and from said insurance company to D. H. Scott Son. (2) Deed of trust conveying the land from appellee Martha E. Nettleton and her said husband to T. M. Scott to secure the payment of a note made by the Nettletons as a renewal of the three notes made by them to appellant. It was provided in this deed in trust that, if the trustee named therein should fail or refuse to act, the beneficiary, D. H. Scott Son, "legal representative, or any other holder or owner of said note or notes," should "have full power to appoint a substitute trustee, in writing," and that such substitute trustee so appointed should "have and succeed to all the powers, rights, duties and estates" granted to the trustee named. (3) Transfer of the notes from D. H. Scott Son to the Scottish American Mortgage Company, Limited. (4) Power of attorney from said Scottish American Mortgage Company, Limited, to Andrew Clark Robertson and Alfred Newton Gossett. (5) Deed from said Scottish American Company, Limited, acting by its attorney in fact, Alfred Newton Gossett, to appellant. For the same purpose appellant offered as evidence, and the court on appellee's objection thereto excluded: (1) An instrument in writing whereby the Scottish American Mortgage Company, as the owner and holder of the notes, acting by its attorney in fact, Andrew Clark Robertson, under authority it claimed to have been conferred by the deed of trust to T. M. Scott, undertook to appoint W. J. Vacca as a substitute trustee to act in the place and stead of said T. M. Scott, who refused to act; and (2) a deed from said W. J. Vacca as such substitute trustee, conveying the land to said Scottish American Mortgage Company, the purchaser at a sale he (Vacca) made thereof by virtue of said trust deed. The objection urged to the admission of the one first mentioned of the two instruments as evidence was that power to act by its attorney in fact in appointing a substitute trustee was not conferred upon the mortgage company; and the objection urged to the admission of the other one of the two instruments was that it was void because made by a substitute trustee "not duly appointed and not authorized by law" to make it.
Long Wortham and Tom L. Beauchamp, all of Paris, for appellant.
W. F. Moore, of Paris, for appellees.
It appears from the statement above that the title to the land was in appellee Mrs. Martha E. Nettleton, as determined by the trial court, unless it passed to the Scottish American Mortgage Company by force of the deed to it from W. J. Vacca, acting as a substitute trustee in the place and stead of T. M. Scott. The disposition to be made of the appeal in the view we take of the record therefore depends upon the answer made to the question as to whether the trust deed to Scott authorized the Scottish American Mortgage Company, as the holder of the notes, to act by its attorney in fact in appointing a substitute trustee.
It was held by the Supreme Court in Michael v. Crawford, 108 Tex. 352, 193 S.W. 1070, that "authority [quoting from the syllabus] to make a substitution of trustees without other formality than an appointment in writing requires the appointment to be made by the holder of the note, and not his agent."
A difference between the case referred to and this one lies in the fact that in that one the substitute trustee was appointed by the attorney in fact of a natural person, who was owner and holder of the note, while in the instant case the substitute trustee was appointed by the attorney in fact of a corporation. Because of that difference, appellant insists the holding of the Supreme Court in the case referred to should not be treated as authority for overruling his contention that the Scottish American Mortgage Company acted within power conferred by the trust deed when it undertook by its agent to appoint a substitute trustee.
That the difference is not a material one was in effect determined by Supreme Court of Mississippi in Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285; Watson v. Perkins, 88 Miss. 64, 40 So. 643, and Scottish American Mortgage Co. v. Butler, 99 Miss. 56, 54 So. 666, 668, Ann.Cas. 1913C, 1236, construing provisions in deeds of trust like these in the trust deed in the instant case, and holding that a corporation acting by an attorney in fact could not appoint a substitute trustee. In the case last cited, the Scottish American Mortgage Company, plaintiff in the trial court and appellant on the appeal, acting by its attorney in fact, had appointed one Stinson as a substitute trustee. In overruling a contention similar to the one urged here, the court, on the authority of the ruling in Allen v. Alliance Trust Co., supra, said (quoting): "The substitution of Stinson, by the attorney in fact for appellant [a corporation], was void, and the sale by such substituted trustee was likewise void, and appellant therefore got no title by virtue of its purchase at such sale and conveyance by the substituted trustee." The reasons for the holdings in the cases cited are stated in the opinions disposing of the appeals, and need not be repeated here. This court, of course, is bound by the holding in Michael v. Crawford, and sees no satisfactory reason for dissenting from the holdings of the court in the Mississippi cases cited.
Appellant insists the evidence made an issue for the jury as to whether appellees were estopped from claiming title to the land as against him, and therefore that it was error to instruct the jury to return a verdict in their favor. We have read and considered the evidence referred to, and agree with the trial court it did not make such an issue.
There is, we think, no error in the judgment. Therefore it is affirmed.