Moser v. Samples

1 S.W.2d 935

• Court: Court of Appeals of Texas
• Decided: December 31, 1927
• Docket: No. 3491.
• Status: Published

Opinion

WILLSON, C. J.

(after stating tbe facts as above). Appellant insists tbe sale of tbe land by tbe substitute trustee was void, because be says tbe provision in tbe trust deed that notice of a sale thereunder should be given as was then required by Texas statutes in making sales of real estate under such deeds was not complied with.

The applicable statute in force at tbe time tbe trust deed was made was article 3759, Vernon’s Complete Texas Statutes, which required notice of a sale of land under a trust deed to be by posting, or “as required by statute in case of judicial sale,” or as provided for in tbe trust deed or contract. A statute in force (to wit, article 3757, Vernon’s Complete Texas Statutes) required notice of a judicial sale to be given by publication in a newspaper published in tbe county in which tbe land was situated, or by posting, if a newspaper was not published in such county, and required, further, that written notice of tbe sale should be given tbe defendant or bis attorney “either in person or by mail.” It was undisputed in tbe evidence beard at tbe trial that tbe notice given by tbe substitute trustee was by publication in a newspaper published in Wood county, where tbe land, was situated, and that no personal notice of tbe sale was ever given to appellants, or to either of them, or to any one for them or either of them.

On tbe statement made, it is clear we think that appellants’ contention should be sustained unless tbe effect of article 6016½, Vernon’s Complete Texas Statutes (of a later date than article 3757 and also in force at tbe time tbe trust deed was mrfde), was to repeal the provision in said article 3757, requiring personal notice of tbe sale of tbe land to be given to appellants or their attorney before tbe sale was made. Said article 6016½ was as follows: '•

“That whenever by law notice is required to be given of any act or proceeding, whether public or private, or relating to a judicial, executive, or legislative matter, which notice is now authorized by law or by contract, to be made by posting notices in one or more public places, such notices shall hereafter be given by publication thereof, in a newspaper of general circulation, which has been continuously and regularly published for a period of not less than one year, in the county in which said act or proceeding is to occur; provided, that nothing in this act shall be construed to require the publication of any general election notice, public road notices nor probate notices when the appraised value of the estate in which same is issued is less than $1,000; and provided further, that the provisions of this act shall not apply to sales made under a written contract wherein it is provided that notice of sale thereunder may be posted.”

As we read said article 3757 and article 6016½, there is no conflict between them, and therefore no reason for bolding tbe former operated to repeal tbe provision in tbe latter requiring written personal notice to tbe defendant of a sale of real estate belonging to him under judicial process. It seems that tbe purpose of the Legislature in enacting article 6016½ was not to change anything in article 3757, but merely to supplement same by a requirement that notices other than those of sales of real estate “under execution, order of sale, or venditioni ex-ponas” should be by publication in a newspaper, and a requirement that such newspaper should be of a kind specified. In that view of tbe matter we are bound to bold that tbe sale made by tbe substitute trustee was void because of bis failure to give appellants written notices of tbe sale he made before he made it. Boone v. Miller, 86 Tex. 74, 23 S. W. 574; Smith v. Allbright (Tex. Civ. App.) 261 S. W. 461.

We think tbe contention presented in the first assignment of error, that tbe court erred when he sustained exceptions to the part of appellants’ answer setting up that tbe suit was prematurely brought, is without merit, and overrule it. Duenkel v. Bank (Tex. Civ. App.) 222 S. W. 670.

Tbe judgment will be reversed, and tbe cause will be remanded to tbe court below for a trial on issues presented by' pleadings of tbe parties as to appellee’s right to a judgment on tbe notes be sued on and ■ a foreclosure of liens be claimed to secure same, and as to appellants’ right to recover damages set up in their cross-action against appellee.