Meisner v. Taylor

11 Citing cases

  1. Smith v. Allbright

    261 S.W. 461 (Tex. Civ. App. 1924)   Cited 13 times

    The maker of such instrument may impose upon the trustee such restrictions and requirements as he deems necessary, and the trust must be executed by him in strict accordance therewith or no title passes. Michael v. Crawford, 108 Tex. 352, 193 S.W. 1070; Bemis v. Williams 32 Tex. Civ. App. 393, 74 S.W. 332; Boyd v. Johnson (Tex.Civ.App.) 234 S.W. 235; Meisner v. Taylor, 56 Tex. Civ. App. 187, 120 S.W. 1014. The case of Chamberlain v. Trammel, 61 Tex. Civ. App. 655, 131 S.W. 229, in which an application for writ of error was dismissed on November 30, 1910, involved the identical point here raised.

  2. Adams et al. v. Zellner

    107 Tex. 653 (Tex. 1916)   Cited 22 times
    In Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143, the Supreme Court, speaking through Chief Justice Phillips, discussed a somewhat similar situation to the one here involved.

    Presumption can not be based upon presumption, and there being no evidence that the notices were ever received by the parties to whom they were mailed, it can not be further presumed that they actually posted the same in proper time and at public places. Fischer v. Simon, 95 Tex. 234; Childs v. Hill, 20 Texas Civ. App. 162[ 20 Tex. Civ. App. 162], 49 S.W. 652; Clark v. Burke, 39 S.W. 306; Lerch v. Hill, 2 Texas Civ. App. 421[ 2 Tex. Civ. App. 421], 21 S.W. 183; Boone v. Miller, 86 Tex. 74; Fuller v. O'Neill, 69 Tex. 349 [ 69 Tex. 349]; Meisner v. Taylor, 120 S.W. 1014; Railway Co. v. Porter, 73 Tex. 304; 1 Elliott on Evidence, sec. 89; Roe v. Davis, 106 Tex. 537; same case, 142 S.W. 950. Morrow Morrow, for defendant in error.

  3. Roe v. Davis

    106 Tex. 537 (Tex. 1915)   Cited 21 times

    Hart, Mahaffey Thomas, for plaintiff in error. — The sale of real estate by a trustee, under deed of trust, conveys no title, unless the notice of sale was given by said trustee as required by the deed of trust, or given as required by law, and this notice must be posted at three public places in the county, where the real estate is to be sold by trustee, in person, and the powers thus conferred are personal, and can not be delegated. Meisner v. Taylor, 120 S.W. 1014; Fischer v. Simon, 95 Tex. 239 [ 95 Tex. 239]; Marston v. Yaites, 66 S.W. 867; Clark v. Burke, 39 S.W. 306. If we grant that the burden of proof rested upon the defendant in the court below to prove that the sale was not properly advertised, then the Court of Civil Appeals erred in holding that when the defendant showed by the substitute trustee that he did not in person post the notices of said sale and did not personally know that they had been posted, he, defendant, did not thereby shift upon plaintiff the burden of proving that the notices had in fact been posted in the manner provided by the deed of trust.

  4. Doherty v. Bank

    No. 01-08-00682-CV (Tex. App. Mar. 11, 2010)   Cited 1 times   1 Legal Analyses

    As discussed above, that contention is without merit based upon the record before us. Nor, as we discussed above, was JPMorgan justified in deferring Doherty to an unknown successor trustee in the event it withdrew as trustee at a future date. See, e.g., Meisner v. Taylor, 120 S.W. 1014, 1016 (Tex. Civ. App.-1909) (trustee lacked power to delegate his duties to others and his failure to personally fulfill mandatory duty violated the explicit terms of trust). Based upon the record before us, we sustain Doherty's issue.

  5. Bain v. Smith

    97 S.W.2d 353 (Tex. Civ. App. 1936)   Cited 4 times

    The cross-assignment, raised at this time, in that way only, cannot be considered in this court, in the face of appellant's objection thereto, the error complained of not being fundamental. 3 Tex.Jur. pp. 873, 875, §§ 609, 611; Henderson v. Odessa Building Finance Co. (Tex.Com.App.) 27 S.W.2d 144; Hardwicke v. Ins. Co. (Tex. Civ. App.) 89 S.W.2d 500; Miller v. Fenner, Beane Ungerleider (Tex. Civ. App.) 89 S.W.2d 506; Whitis v. Penry (Tex. Civ. App.) 41 S.W.2d 736; Austin v. Bain (Tex. Civ. App.) 283 S.W. 638; Buster v. Warren, 35 Tex. Civ. App. 644, 80 S.W. 1063; Meisner v. Taylor, 56 Tex. Civ. App. 187, 120 S.W. 1014. In his second proposition appellant contends that the operation of the statute of limitations was not suspended by the injunction against the sale under foreclosure of appellee's lien, and after levy under execution, because, it is contended, appellee was guilty of laches in not earlier moving to dissolve the injunction.

  6. Natl. Bank of Commerce v. Moody

    90 S.W.2d 279 (Tex. Civ. App. 1936)   Cited 3 times

    Appellee Moody made no complaint of this finding against him. Galveston, H. S. A. Ry. Co. v. Reitz, 27 Tex. Civ. App. 411, 65 S.W. 1088; Bridgewater v. Hooks (Tex.Civ.App.) 159 S.W. 1004; Meisner v. Taylor, 56 Tex. Civ. App. 187, 120 S.W. 1014; First Nat. Bank v. Land Improvement Co., 60 Tex. Civ. App. 315, 128 S.W. 436. The record further shows that the case was not presented on the trial in the court below on the theory presented by appellee's proposition.

  7. Hardwicke v. Trinity Universal Ins. Co.

    89 S.W.2d 500 (Tex. Civ. App. 1935)   Cited 15 times

    Many of the decisions directly so hold, and many more clearly imply that such exception is necessary. Continental Ins. Co. v. Milliken, 64 Tex. 46; Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S.W. 889; Buster v. Warren, 35 Tex. Civ. App. 644, 80 S.W. 1063; Meisner v. Taylor, 56 Tex. Civ. App. 187, 120 S.W. 1014; Henderson v. Odessa Building Finance Co. (Tex.Com.App.) 27 S.W.2d 144; Whitis v. Penry (Tex.Civ.App.) 41 S.W.2d 736; Bridgewater v. Hooks (Tex.Civ.App.) 159 S.W. 1004; Commonwealth Ins. Co. v. Finegold (Tex.Civ.App.) 183 S.W. 833; Smith v. Ernest, 46 Tex. Civ. App. 247, 102 S.W. 129; Gibbs v. Eastham (Tex.Civ.App.) 143 S.W. 323; Levy v. Engle Bros. Co. (Tex.Civ.App.) 192 S.W. 548; Jamison v. Alvarado Compress Warehouse Co., 45 Tex. Civ. App. 263, 99 S.W. 1053; McKee v. Price, 3 Willson, Civ.Cas.Ct.App. § 335; Biggerstaff v. Murphy (Tex.Civ.App.) 21 S.W. 773; Id., 3 Tex. Civ. App. 363, 22 S.W. 768; Travelers' Ins. Co. v. Washington (Tex.Civ.App.) 5 S.W.2d 783; Compania Bancaria y de Inversiones v. Border Nat. Bank (Tex.Civ.App.) 265 S.W. 599; First Nat. Bank v. South Beaumont Land Improvement Co., 60 Tex. Civ. App. 315, 128 S.W. 436.

  8. Smith v. Allbright

    279 S.W. 852 (Tex. Civ. App. 1926)   Cited 11 times
    In Smith v. Allbright, 279 S.W. 852, reversed on other grounds, the Austin Court of Civil Appeals held that even though legal presumptions exist in favor of judicial sales "* * * it is well settled that no such presumption prevails as to trustee's sales under powers granted by deeds of trust; the reason for the rule being that the exercise of such powers is a harsh remedy, and that it can only be exercised by strictly complying with the terms and conditions imposed upon the power of sale by the maker of the trust instrument."

    While it is true that such legal presumption exists in favor of judicial sales, it is well settled that no such presumption prevails as to trustee's sales under powers granted by deeds of trust; the reason for the rule being that the exercise of such powers is a harsh remedy, and that it can only be exercised by strictly complying with the terms and conditions imposed upon the power of sale by the maker of the trust instrument. Miesner v. Taylor, 56 Tex. Civ. App. 187, 120 S.W. 1014; Michael v. Crawford, 108 Tex. 353, 193 S.W. 1070; Willie v. Hays (Tex.Civ.App.) 207 S.W. 427; Bowman v. Oakley (Tex.Civ.App.) 212 S.W. 549. In the case of Fischer v. Simon, 95 Tex. 234, 66 S.W. 882, it is held:

  9. Titterington v. Deutsch

    179 S.W. 279 (Tex. Civ. App. 1915)   Cited 1 times

    The cases cited expressly hold that it is not necessary, in cases of this character, that the trustee should personally post the notices, but that this may be delegated to an agent, and we can see no good reason for holding that, notwithstanding this is true, the "public places" at which such several notices be posted, other than the courthouse door of the county, should be named by the trustee or the sale will be held to be void. If the opinion in the case of Meisner v. Taylor, 56 Tex. Civ. App. 187, 120 S.W. 1014, embraces such a holding, the same was not necessary to a decision of that case, is not an authoritative expression upon the question, and has not been followed in subsequent cases of the appellate courts of this state. In our opinion the selection of the places by the trustee named in a deed of trust involves no such element of judgment or discretion as requires either the posting of the notices of sale by the trustee in person or the naming by him, in the event he commits the performance of that duty to another, of the places where such notices shall be posted.

  10. Roe v. Davis

    142 S.W. 950 (Tex. Civ. App. 1912)   Cited 16 times

    It is simply shown that the plaintiff introduced in evidence the deed from R. P. Dorough, substitute trustee, conveying the property in controversy, and that this was acknowledged and filed for record and thereafter duly recorded in the county court of Bowie county. Appellant refers to the case of Meisner v. Taylor, 120 S.W. 1014, as authority supporting the contention that the testimony in this case conclusively established the fact that the trustee had failed to comply with the terms of the instrument requiring the posting of notices of sale. In many respects the facts involved in that case are similar to those here under consideration.