Moser v. Samples , 1 S.W.2d 935 ( 1927 )

Appellant insists the sale of the land by the substitute trustee was void, because he says the provision in the 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 the time the 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 the 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 the county in which the land was situated, or by posting, if a newspaper was not published in such county, and required, further, that written notice of the sale should be given the defendant or his attorney "either in person or by mail." It was undisputed in the evidence heard at the trial that the notice given by the substitute trustee was by publication in a newspaper published in Wood county, where the land was situated, and that no personal notice of the sale was ever given to appellants, or to either of them, or to any one for them or either of them.

On the statement made, it is clear we think that appellants' contention should be sustained unless the effect of article 6016 1/2, Vernon's Complete Texas Statutes (of a later date than article 3757 and also in force at the time the trust deed was made), was to repeal the provision in said article 3757, requiring personal notice of the sale of the land to be given to appellants or their attorney before the sale was made. Said article 6016 1/2 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 6016 1/2, there is no conflict between them, and therefore no reason for holding the former operated to repeal the provision in the latter requiring written personal notice to the defendant of a sale of real estate belonging to him under judicial process. It seems that the purpose of the Legislature in enacting article 6016 1/2 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 exponas" should be by publication in a newspaper, and a requirement that such newspaper should be of a kind specified. In that view of the matter we are bound to hold that the sale made by the substitute trustee was void because of his failure to give appellants written notices of the 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 the contention presented in the first assignment of error, that the court erred when he sustained exceptions to the part of appellants' answer setting up that the suit was prematurely brought, is without merit, and overrule it. Duenkel v. Bank (Tex.Civ.App.)222 S.W. 670.

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