WILLIAMS, Associate Justice.
This was an action of trespass
to try title brought by plaintiff in error, as executor of the estate of James Thompson, deceased, to recover of defendants in error the land in controversy. Judgment was rendered for the defendants in the District Court and affirmed in the Court of Civil Appeals. The plaintiff claimed through a deed of trust executed by W. P. Ellison to E. Li Irvine, trustee, September 20, 1886, to secure a note given by Ellison to James Thompson, and a deed from E. W. Angelí, substitute trustee thereunder, to plaintiff, as executor of the will of the beneficiary, executed in pursuance of a sale of the property, made Wednesday, June 1, 1898. The sale was held void by the court below and the judgment for the defendants resulted.
The objections to thg trustee’s sale are two: (1) That it was made , on Wednesday instead of the first Monday in the month; (2) that no such note as that described in the deed of trust was in existence at the time of sale, and hence there was no power of sale in the trustee.
The first objection is based, firstly, upon the language of the deed of trust requiring the sale to be made within “lawful hours,” the con-' tention being that, as there was then in force. no statute fixing the hours for sales of real estate, except that requiring sales under execution to be made within certain hours on the first Tuesday in the month, the deed had reference to that provision and only authorized a sale within those hours on that day; and secondly, upon the statute subsequently passed requiring sales under trust deeds to be made as sales under execution, the proposition here being that as the deed fixed no definite • time at which the sale should take place, the Legislature had power to prescribe one even after its execution.
The deed authorized the sale to be made “at any time” after default, “within lawful hours,” no reference being made to the law regulating execution sales nor to any particular day. The notice to be given and the place where the sale is to take place are carefully stated in the deed, and, if it had been the purpose of the parties to require the
sale to be made on a particular day, they would probably have specified it. If the words “'lawful hours” could be held to refer to such time of the day as was prescribed by a statute, not referred to, for sales of a different kind, it would not follow that those hours in a particular day' were meant. The sole limitation upon the power to sell at any time is the requirement that it be done within lawful hours; and if this were held to mean the hours between 10 and 4 prescribed by statute, a further one fixing a certain day could not be added by construction. But we are not prepared to hold that the parties had reference to the statute at all. They were providing by contract for a sale in accordance with a power defined in the deed itself, and expressed no intention that the statute in existence, regulating sales under legal process, should in any way affect the exercise of the power. The language employed means no more than that the sale should be made at an hour when it would be lawful to make such a sale as that provided for. A trustee, in executing such a power, could not, consistently with principles of equity, cause a sacrifice of the property by selling at an unusual and unreasonable hour; and it was against such injuries as this the provision was probably directed.
Nor can it be held that the subsequent statute restricted the power of the trustee and required the sale to be made on the first Tuesday in the month. The effect of the statute upon deeds of trust executed before its enactment was considered in the case of the International Building and Loan Association v. Hardy, 86 Texas, 610. The deed there in question required a notice differing from that prescribed by the subsequently enacted statute; and the question was whether or not the statute so applied as to require the notice prescribed by it to be given. It would seem that both the statute and the deed could have been complied with, but it was held in effect that it was not in the power of the Legislature to take away the right of the parties created by the contract to have the property sold upon the terms and conditions and in the manner which they had agreed upon.
The gist of that decision is that the parties, by their contract, had acquired the right to have the property sold by complying with the provisions of the deed; that this constituted a part of the obligation of the contract which could not be impaired by subsequent legislation, and that the imposition of additional conditions upon the exercise of the right would be such an impairment. The principles there laid down control this case. By omitting to fix a day upon which the sale should be made and empowering the trustee to sell at any time, the parties gave him, as their common agent, a discretion to select a day when, in his judgment, the sale could be made to the best advantage of all concerned. Hess v. Dean, 66 Texas, 668. It was their right to have this done in accordance with their contract “at any time” after default. The statute, if held to take away the power to make it at any other time than on the first Tuesday in the month, would
not only add an additional condition, but would restrict the power defined in the deed and the consequent rights of the parties to it.
The second objection to the trustee’s sale is the one which was sustained by the Court of Civil Appeals. It grows out of a misdescription in the deed of trust of the note secured by it. The description of the note therein was that it was No. 16, of even date with the deed, for the principal sum of $700, made by W. P. Ellison, payable to the order of James Thompson, at the First National Bank, Davenport, Iowa, two years after date, with interest at 12 per cent per annum, payable semi-annually on the 20th days of March and September (according to the terms of four interest coupons thereto annexed), with agreement for maturity of the whole at the option of the holder, upon default in payment of any installment. It was shown that at date of sale Thompson’s estate owned no note answering all of the particulars given in the deed, but plaintiff produced a note which corresponded with the deed in every respect, except that it bore date July 19, 1886, instead of September 20, 1886, the date of the deed, and was payable two years from its date instead of two years from the date of the deed, and the interest coupons were payable on the 19th days of January and July instead of the 20th days of September and March, as stated in the deed.
Plaintiff offered to show that this was the only note ever executed by Ellison to Thompson and was the one intended to be secured, and that the statement in the deed of the date and times of payment of the principal and coupons was due to a mistake of the draughtsman. This was excluded and the deed held insufficient to support the action of the trustee.
The view taken by the district judge and the Court of Civil Appeals was that, until the mistake had been corrected by proper proceeding in equity to reform, the trustee had no power to sell, and the note offered would not support plaintiff’s claim of title under the deed of trust. It may be that this would be true had there been in the deed of trust such a total misdescription of the note intended to be secured that it would afford no means of identifying that actually in existence.
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WILLIAMS, Associate Justice.
This was an action of trespass
to try title brought by plaintiff in error, as executor of the estate of James Thompson, deceased, to recover of defendants in error the land in controversy. Judgment was rendered for the defendants in the District Court and affirmed in the Court of Civil Appeals. The plaintiff claimed through a deed of trust executed by W. P. Ellison to E. Li Irvine, trustee, September 20, 1886, to secure a note given by Ellison to James Thompson, and a deed from E. W. Angelí, substitute trustee thereunder, to plaintiff, as executor of the will of the beneficiary, executed in pursuance of a sale of the property, made Wednesday, June 1, 1898. The sale was held void by the court below and the judgment for the defendants resulted.
The objections to thg trustee’s sale are two: (1) That it was made , on Wednesday instead of the first Monday in the month; (2) that no such note as that described in the deed of trust was in existence at the time of sale, and hence there was no power of sale in the trustee.
The first objection is based, firstly, upon the language of the deed of trust requiring the sale to be made within “lawful hours,” the con-' tention being that, as there was then in force. no statute fixing the hours for sales of real estate, except that requiring sales under execution to be made within certain hours on the first Tuesday in the month, the deed had reference to that provision and only authorized a sale within those hours on that day; and secondly, upon the statute subsequently passed requiring sales under trust deeds to be made as sales under execution, the proposition here being that as the deed fixed no definite • time at which the sale should take place, the Legislature had power to prescribe one even after its execution.
The deed authorized the sale to be made “at any time” after default, “within lawful hours,” no reference being made to the law regulating execution sales nor to any particular day. The notice to be given and the place where the sale is to take place are carefully stated in the deed, and, if it had been the purpose of the parties to require the
sale to be made on a particular day, they would probably have specified it. If the words “'lawful hours” could be held to refer to such time of the day as was prescribed by a statute, not referred to, for sales of a different kind, it would not follow that those hours in a particular day' were meant. The sole limitation upon the power to sell at any time is the requirement that it be done within lawful hours; and if this were held to mean the hours between 10 and 4 prescribed by statute, a further one fixing a certain day could not be added by construction. But we are not prepared to hold that the parties had reference to the statute at all. They were providing by contract for a sale in accordance with a power defined in the deed itself, and expressed no intention that the statute in existence, regulating sales under legal process, should in any way affect the exercise of the power. The language employed means no more than that the sale should be made at an hour when it would be lawful to make such a sale as that provided for. A trustee, in executing such a power, could not, consistently with principles of equity, cause a sacrifice of the property by selling at an unusual and unreasonable hour; and it was against such injuries as this the provision was probably directed.
Nor can it be held that the subsequent statute restricted the power of the trustee and required the sale to be made on the first Tuesday in the month. The effect of the statute upon deeds of trust executed before its enactment was considered in the case of the International Building and Loan Association v. Hardy, 86 Texas, 610. The deed there in question required a notice differing from that prescribed by the subsequently enacted statute; and the question was whether or not the statute so applied as to require the notice prescribed by it to be given. It would seem that both the statute and the deed could have been complied with, but it was held in effect that it was not in the power of the Legislature to take away the right of the parties created by the contract to have the property sold upon the terms and conditions and in the manner which they had agreed upon.
The gist of that decision is that the parties, by their contract, had acquired the right to have the property sold by complying with the provisions of the deed; that this constituted a part of the obligation of the contract which could not be impaired by subsequent legislation, and that the imposition of additional conditions upon the exercise of the right would be such an impairment. The principles there laid down control this case. By omitting to fix a day upon which the sale should be made and empowering the trustee to sell at any time, the parties gave him, as their common agent, a discretion to select a day when, in his judgment, the sale could be made to the best advantage of all concerned. Hess v. Dean, 66 Texas, 668. It was their right to have this done in accordance with their contract “at any time” after default. The statute, if held to take away the power to make it at any other time than on the first Tuesday in the month, would
not only add an additional condition, but would restrict the power defined in the deed and the consequent rights of the parties to it.
The second objection to the trustee’s sale is the one which was sustained by the Court of Civil Appeals. It grows out of a misdescription in the deed of trust of the note secured by it. The description of the note therein was that it was No. 16, of even date with the deed, for the principal sum of $700, made by W. P. Ellison, payable to the order of James Thompson, at the First National Bank, Davenport, Iowa, two years after date, with interest at 12 per cent per annum, payable semi-annually on the 20th days of March and September (according to the terms of four interest coupons thereto annexed), with agreement for maturity of the whole at the option of the holder, upon default in payment of any installment. It was shown that at date of sale Thompson’s estate owned no note answering all of the particulars given in the deed, but plaintiff produced a note which corresponded with the deed in every respect, except that it bore date July 19, 1886, instead of September 20, 1886, the date of the deed, and was payable two years from its date instead of two years from the date of the deed, and the interest coupons were payable on the 19th days of January and July instead of the 20th days of September and March, as stated in the deed.
Plaintiff offered to show that this was the only note ever executed by Ellison to Thompson and was the one intended to be secured, and that the statement in the deed of the date and times of payment of the principal and coupons was due to a mistake of the draughtsman. This was excluded and the deed held insufficient to support the action of the trustee.
The view taken by the district judge and the Court of Civil Appeals was that, until the mistake had been corrected by proper proceeding in equity to reform, the trustee had no power to sell, and the note offered would not support plaintiff’s claim of title under the deed of trust. It may be that this would be true had there been in the deed of trust such a total misdescription of the note intended to be secured that it would afford no means of identifying that actually in existence. The cases relied on to support the judgment are Follett v. Heath, 15 Wis., 601; Jewett v. Preston, 27 Me., 405; Bramhall v. Flood, 41 Conn., 68.
In the ease first cited, the mortgage was given to secure a note for $530, dated November 16, 1858, payable one year after date. The note relied on to support it was for $660, dated March 15, 1859, and payable thirty days after date. It was held that it could not be shown, in an action involving title to the mortgaged property, that the note produced was the one intended to be secured, for the reason that the evidence was in writing and gave no description of the note relied on and could not be varied by parol.
In the second case, the mortgage recited two notes, one for $500 and one for $700, of given dates. The only evidence of the existence
of any notes held by the mortgagee was of three notes, one for $800, one for $1000, with a credit indorsed of $500, and one for $700, none of which corresponded in date with those mentioned in the mortgage. The court decided against the mortgagee on the ground that the mortgage had never been delivered, and then referred to the state of the ■evidence as a further difficulty in the way of enforcing it. It does not appear that any attempt was made to show that either of the notes actually held by the mortgagee was intended to be secured by the mortgage, and it must be conceded that there would have been difficulty in making the mortgage apply to any two of the three notes. This case did not, therefore, involve the question now before us, and besides, the question there before the court was not definitely decided.
Barrows v. Turner, 50 Maine, 127, was a case in which a note, subsequent in date to the mortgage, was produced differing in all particulars from those given in the mortgage, and it was held that such note would not support the mortgage without proof that it was given in renewal of that described.
Bramhall v. Flood, 41 Connecticut, 68, has no application here. The mortgage in that case was held void as against creditors of the mortgagor, under a rule existing in that State and said to be exceptional, by which such instruments, in order to affect creditors, are required to describe the debt secured with accuracy and certainty. The ■effect of the mortgage as between the parties was not considered, nor -do the facts bear such resemblance to those of this case as to make the -decision of any value in determining the question before us.
It may be conceded that the Wisconsin case and the second case from Maine were correctly decided. The notes produced differed from those described in the mortgage in all of the particulars given in the latter instruments to identify the debt secured. There were, therefore, in the mortgages no circumstances specified by which the notes produced could be identified as the ones secured, after rejecting the particulars in which the mortgage differed from the notes held by the mortgagee. This distinction is sharply drawn in the subsequent case ■of Paine v. Benton, 32 Wisconsin, 495, where the mortgage described a note by many particulars, among which were the statements that it was executed “on or about” the 8th day of August, 1867, and payable ■on or before one year from date. The note produced bore date August 6, 1867, and was payable on or" before the 1st day •of September, 1868, about twenty-five days more than a year from its date. In all other respects, it corresponded with the note described in the mortgage. Chief Justice Dixon said: “The rule in Follett v. Heath is not to be extended beyond the facts in the case then before the court. The facts there were that the mortgage gave a totally false description of the note intended to be secured or which was so claimed.” After arguing that what were claimed, in the case before him, to be misdescriptions were really not such, he proceeds: “Nor is it indispensable that all the facts stated or particulars of description given
should precisely correspond with the instrument for the security of' which the mortgage is executed. The maxim, ‘falsa demonstratio non nocet/ applies; and if to a description already adequate and sufficient, to point out with convenient certainty the note intended to be secured,, there be added that which is inapt and erroneous, the latter will" not. vitiate the former.” With reference to the admissibility of parol evidence to identify the debt, the same opinion says: “The case of Follett v. Heath only holds that such proof is inadmissible in an action at-law, when the note produced is totally variant from that described in the mortgage. It is well settled, where the note agrees in some respects with that described in the mortgage, though it differs in others,, that it may be proved by parol to be the note intended to be described in the mortgage.” That this is the true rule, when the mortgage correctly gives sufficient particulars to enable the court by the application of them, to identify the instrument produced, after rejecting the-false particulars, is recognized without conflict in a great number of' authorities in which almost every variety of mistake in description is. found. Sweetser v. Lowell, 33 Me., 446; Bourne v. Littlefield,
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Me., 302; Williams v. Hilton, 35 Me., 554; Partridge v. Swazey, 46 Me., 414; Johns v. Church, 12 Pick., 557; Hall v. Tufts, 18 Pick., 455; Pierce v. Parker, 4 Metc., 80; Jackson v. Bowen, 7 Cow., 13; Boody v. Davis, 20 N. H., 140; McKinster v. Babcock, 26 N. Y., 378; Hurd v. Robinson, 11 Ohio St., 232.
The principle is clearly applicable here. Many circumstances are; given in the mortgage by which the note secured may be known. The.number itself removes all doubt as to its identity when it is ascertained. that there was but one note; and all the other numerous particulars-agree with the note produced except the date and times of payment,, the errors in which flowed naturally from the erroneous recital that, the note was of even date with the mortgage. These errors are to be; rejected and the note identified by the remainder of the description,, there being enough for the purpose; and parol evidence is admissible, if indeed it be necessary, for the purpose of identification.
It is urged that, while the rule may be as stated in proceedings in. court to foreclose a mortgage, it can not be applied in a case like the-present in which the plaintiff in trespass to try title relies on a sale,, under the mortgage containing the misdescription, made by a trustee-out of court; that, while a court, upon proof of the facts, might enforce-the mortgage, the trustee would have no power to enforce it without-a previous reformation. The authorities, in effect, answer this contention. Many of them were actions at law of trover or replevin in which the mortgagee had taken possession of the property upon breach of the condition of the mortgage and set it up in support of his title and the question thus came up without any effort to procure either a. reformation or a foreclosure in court. If the mortgagee, under a mortgage containing an erroneous description of the debt, may thus-assert his right without reformation, it is difficult to see why a trustee,.
acting as the agent chosen by both parties, may not enforce it in the-manner prescribed in it. His power comes from the deed of trust,, properly construed with the aid of facts legally admissible in explanation of it. When the deed, considered with these facts, is found to' secure a particular note, by the same process the power to sell is established, because it is given to enforce the payment of such note. The power to sell existing and being duly followed, the sale could not be void. If such uncertainty as to the existence of a debt secured by such a deed should arise as to create doubts in the minds of intending purchasers and embarrass the sale and threatén a sacrifice of the property, relief might be found in equity against such a consequence, where the mortgagor could not otherwise protect himself.' Such complications would not necessarily arise, but could ordinarily be easily avoided; and hence the danger of their occurrence could furnish no reason for holding a sale absolutely void. Ho one but the debtor or those succeeding to his rights would have cause to complain of any such injurious result that might flow from a sale; and therefore they alone should be heard to complain by application to stay or set it aside; whereas if the sale were held void, the consequence would be that trespassers and other third parties could defeat it in any proceeding in which it might come up.
Our conclusion is that the court erred in excluding the evidence offered. It is contended in argument that by lapse of time after default in payment and before the sale, the claim had become stale and the power to sell had ceased, and we are urged to so hold. The question has not been tried in the court below and is not properly up for decision now.
Reversed and
remanded.