Young v. Van Benthuysen , 30 Tex. 762 ( 1868 )

Morrill, C. J.

On the 11th Yovember, 1858, J. R. Young executed his promissory note of that date for $1,200, payable to L. M. Hitchcock in twelve months after date. On the same day Young and his wife, Sarah Young, executed a deed of trust, conveying to Franklin Hitchcock certain lots of land in the city of Galveston, which was their homestead, authorizing and empowering the trustee, if the note should not be paid at maturity, to advertise the lots for sale for twenty days in some newspaper in the county of Galveston, and sell the same to pay the note, and convey to the purchaser the title therefor. The deed was legally authenticated for record and recorded. .

In the summer of 1861 J. E. Young died. On the 14th May, 1866, Sarah Young instituted suit for herself, and as guardian of the minor children of herself and J. E. Young, deceased, against defendants to recover the land, and during the pendency of the suit, and before trial in the district court, she died, and the suit is prosecuted for the benefit of the children and heirs of J. E. Young and Sarah Young, deceased.

Mrs. M. Van Benthuysen, one of the defendants, pleaded a title from the trustee to L. M. Hitchcock, dated December 1, 1859, a deed from L. M. Hitchcock to herself, dated January 12,1860, as well as the deed in trust before mentioned; pleaded improvements made in good faith and the limitation act of five years.

t On the trial there were fourteen questions propounded to the jury, who were requested to find a special verdict, and the jury responded to the questions as follows:

1. The jury find from the evidence that Mrs. Sarah Young executed the deed of trust, and acknowledged the same privily and apart from her husband, having the same explained to her, and without any fraud on the part of L. M. Hitchcock.

2. We do not believe that the trustee, Frank Hitchcock, advertised the property twenty days after the maturity of the note, but he sold the same to the highest bidder, without fraud, and conveyed the same to the highest purchaser, L. M. Hitchcock.

3 and 4. Mrs. Sarah Young was present at the public sale of the property, and did not object to or forbid the same.

5. The sum for which the property sold was applied to the payment of the note.

6. Margai*et Van Benthuysen had notice of an irregularity in the sale by the trustee of trust "sale.

7. Mrs. Sarah Young accompanied Margaret Van Benthuysen to L. M. Hitchcock, and requested him to sell said property to Mrs. Van Benthuysen.

8. Mrs. Van Benthuysen did not buy the property in good faith, but paid the purchase-money for the same. (In the interrogatory the judge stated “good faith, as here used, means a purchase under such circumstances as would lead an ordinarily prudent person to believe he was purchasing a good title.”)

9. The rent of said property since the 14th May, 1866, was worth $50 per month.

10. The value of the improvements placed upon the property from the 1st January, 1860, till the 14th May, 1866, is $2,800.

11 and 12. From the 12th January, 1860, to the 14th May, 1866, the rent of the property was worth $20 per month; and from 14th May, 1866, $50 per month.

13. The value of the property on the 1st January, 1860, was $2,000.

14. The present value of the property is $10,000.

The statute (Paschal’s Dig., Art. 1469) provides, “ in civil suits the jury may find and return a special verdict in writing, in issues made up under the direction of the court, declaring the facts proved to them; any verdict so found shall be conclusive between the parties as to the facts found.”

In Ledyard v. Brown, 27 Tex., 406, the court said: “It is the settled practice, where the verdict is found upon special issues alone, that the court canilot look beyond it to any fact apparent in the record in aid of the judgment.”

Upon the above special verdict the judge entered judgment generally in favor of the defendants.

Neither party made any exceptions to the special issues as found; the defendant has assigned no errors either of the jury or judge, and the only errors assigned by the plaintiff* are, that the judge erred in not giving judgment for the plaintiff on the special issues submitted.

The two pivotal points in the case are, first, did the father and mother of plaintiffs, by themselves or their agent, sell the land in question? second, if the first question is negatived, did the defendant purchase the same in good faith, such as will entitle her to pay for the improvements?

The jury have found, in response to the second question, that the trustee did not advertise the property for twenty days after the maturity of the note. We do not perceive the necessity of submitting this question to a jury.

The note was dated 11th November, 1858, and due and payable in twelve months after date. The payee had no legal right to demand payment till the 11th November, 1859, and the debtors had until the last minute of that day to. pay the note. The note was not due in twelve months before the 11th, or twelve months from any particular hour of .the 11th, but twelve months after that day. (Story on Prom. Notes, secs. 211, 213; Edwards on Bills, 515; O’Connor v. Towns, 1 Tex., 107.)

The default of payment, therefore, could not have occurred till the first minute of the 12th November, 1859, and as the trustee sold on the 1st December of the same year, he sold the property before, or rather, he did not sell the property after the lapse of twenty days from and after the default of payment. The twenty days must be regarded . as one indivisible period of time.

It does not appear from the record whether this note was entitled to grace, and we have considered it in the most favorable view for the defendant. And, as the whole ease turns upon the issue here presented, we have reviewed the special verdict found by the jury, and concur in their finding.

When the makers of the deed of trust executed it, they Specified therein the conditions prerequisite for the sale of the property, and the trustee’s duty was to comply with the terms by virtue of which he was authorized to act. He had no more authority to abate one day of the time from the default of payment to the day of sale than he had to disregard all the time, or any other requirement therein set forth. He was not the general, but the special agent of the principals, and as such had no authority to act in any other way or manner than agreeably to the instructions which gave him his authority. Hot having acted in the manner, and in the only manner, he was authorized to act, in capacity of agent, his acts did not bind his principals, and his pretended sale did not bind them; and, so far as their rights and interests are concerned, the sale is null and void.

The second question refers to the good faith of defendant. This question the jury decided in response to the sixth question, that “Margaret Van Benthuysen had notice of an irregularity in the sale by the trustee of trust sale,” and also by the response to the eighth question, in answer to which they say, “Mrs. Van Benthuysen did not buy the property in good faith,” &c.

The statute (Paschal’s Dig., Art. 5300) provides, that “ in any action of trespass to try title it shall be lawful for the defendant, at any time before the trial of said suit, to suggest to the court that he and those persons whose estate he has in the lands and tenements sued for have had adverse possession of the same, in good faith, for at least one year next before the commencement of the suit; and that he and those persons whose estate he has have made permanent and valuable improvements on the lands sued for during the time he or they have had such possession of the same; and the jury trying the suit, if they shall find for the plaintiff, shall at the same time inquire if the suggestion so. made he true or false; if false, they shall return a verdict, as in ordinary cases, for the damages sustained ***.”’

The jury decided adversely to the plea of defendant, and that she was not a possessor in good faith. The consequence is, that the defendant can recover no payment for improvements.

The counsel of defendant, in his very able argument, has placed great reliance on the seventh issue proposed to the jury, in which they say: “ Mrs. Sarah Young accompanied Margaret Yan Benthuysen to L. M. Hitchcock, and requested him to sell said property to Mrs. Yan Benthuysen,” and insists that the plaintiffs are estopped by the actions and sayings so found.

To give the most claimed by defendant, this advice or request could not operate more favorably for defendant, or more adversely to plaintiffs, than if Mrs. Young had then and there executed a deed for the lots to defendant. But a deed made by a married woman for land, even if the land had been her own, would not have passed the title unless it were acknowledged before a proper officer, according to the statute in such cases made and provided-, a deed by a married woman of the community real property, without the concurrence of her husband, is entirely worthless. But the constitution and laws have so hedged in a homestead from sale, that courts are required to scrutinize very closely to see that all the constitutional and statutory requirements have been fully complied with, before they will pronounce a sale of the same to be valid.

We cannot reconcile the issues found by the jury, and the statement.of facts upon which those issues were founded, with the position assumed, that the defendant was influenced by what Mrs. Young did or said to make the purchase. The jury found that the lots were worth, at the time, $2,000. When we consider that this was the only-home and the only property of this family, and that this family had, about one month previous to that time, been, by force, turned out of this their home, and had since that time depended upon the charity of their neighbors for their daily support, we cannot but suppose that some motive besides what has been disclosed, except in an indirect way, was influencing this doubly unhappy woman to make the request which would have the effect of forever preventing her to recover this home. Why this request was made we are left to conjecture; but it is rather singular that Mr. • Hitchcock would sell property that cost him $1,200 for one-fourth of that sum, and more especially when it was worth $2,000.

We have examined the statement of facts upon which the jury based their special verdict, and believe the verdict to be sustained by these facts. We further consider that the judge erred in the judgment entered on the same. It is therefore ordered that said judgment be reversed, and this court proceeding to render such judgment as the district court ought to have rendered, it is considered that the plaintiffs, William F. B,. Young and George L. Young, have and recover of and from the defendants, Garret Van Benthuysen and Margaret Van Benthuysen, lots Yos. 1, 2, 3, and 4, in block Yo. 434, in the city of Galveston, and county of Galveston, with all the appurtenances thereto belonging; and it is further considered, that said plaintiffs have and recover of said defendants the sum of $1,521 33, as found by the "jury, for rent of said lots from the 12th day of January, 1860, to the 14th May, 1866, and the further sum of $50 per month for rent of the same from the 14th May, 1866, to the time the same shall be delivered up to the plaintiffs, together with all costs in the district court and this court herein expended; and that this decision be certified to the district court, to be carried into execution.

Decreed accordingly.