Fischer v. Simon

66 S.W. 447, 95 Tex. 234, 1902 Tex. LEXIS 151

• Court: Texas Supreme Court
• Decided: February 10, 1902
• Docket: No. 1065.
• Status: Published

Opinions

Under an act passed in 1889, now article 2369, Sayles' Statutes, it was provided that "all sales of real estate made in this State under powers conferred by any deed of trust or other contract lien shall be made in the county in which such real estate is situated," and that "notice shall be given as now required in judicial sales." That law has not been changed or amended. At the time the law in question was enacted, the law as to judicial sales did not require the service of a notice of sale on the defendant in execution, and no such requirement existed until 1895, when the present law was enacted. The law as to sales under trust deeds was not changed to conform to the requirements of the amendment of 1895, and the requirements of the law as to judicial sales as it existed in 1889 must be looked to in ascertaining the notice that should be given of a sale under a trust deed. Had the language of the Act of 1889 been "notice shall be given as required in judicial sales," the statute as to judicial sales in effect at the time of sale under the trust deed would prescribe the method of giving notice, but the language confines the notice to such as is "now required," that is, at the time of the enactment of the law. It can not be maintained that there was a re-enactment of this law by the adoption of the Revised Civil Statutes in 1895, for in the act adopting them it is provided "that the provisions of the Revised Statutes so far as they are substantially the same as the statutes of this State in force at the time when the Revised Statutes shall go into effect, or the common law in force in this State at said time, shall be construed as continuations thereof, and not as new enactments of the same."