Bowman v. Roberts

G-eorge, J.,

delivered the opinion of the court.

Fisher gave a deed of trust on two mules, one described, as the deed was originally written and recorded, as “a light bay mule,” and the other as “ a Avhite-faced horse-mule.” By the terms of the deed, the debt secured by it was due on the first day of December, 1877 ; and it was also provided that, should the grantor “ fail to pay and satisfy said indebtedness at maturity, then it shall be the duty of the [trustee] at the request of the party of the third part, [the creditor] to take possession of the property conveyed,” aud, after giving ten days’ notice, sell the same, etc.

There is evidence tending to show, though the grantor denies it, that in January, 1879, Fisher sold a light gray mule to the defendant in error, and delivered possession of the same to him. After the sale and delivery, — viz., in the spring of 1879, — it was discovered that there was a misdescription of one of• the mules, and the grantor (Fisher) and the trustee went before the chancery clerk and caused the deed and the record to be altered by erasing ‘ ‘ bay ’ ’ and inserting ‘ ‘ gray ’ ’ in the description. Roberts denied that he had any knowledge of any deed in trust on the mule he bought.

This action of replevin was commenced in May, 1879, by R. C. Bowman, the substituted trustee, against B. S. Roberts, the purchaser, for the recovery of the gray mule. The verdict was for the defendant, and the plaintiff brings the case here on a special bill of exceptions, in which are the evidence in the case as set out, and the charges given and refused by the court. It is assigned for error that the following charge, asked by the plaintiff, was improperly refused: “ That if the jury believe from the evidence that Simon Fisher executed a deed in trust to J. N. Gilruth, embracing the mule in controversy and con veying the same to Mosely, in trust to secure certain indebted ness due said Gilruth, and therein mentioned, then the legal title to said property Avas thereby vested in said Mosely, and said Fisher divested of the same, until the satisfaction of the deed in trust; and if, before satisfaction of said trust, the said Fisher sold, traded, or disposed of said mule to Roberts, then such sale Avas void, and could not divest said Mosely of his legal title to said property.”

This charge was properly refused. Though correct as a legal proposition, it did not apply to the facts of the case. The mule was not embraced in the deed as it was written, and the deed was not corrected until after the sale made to Roberts, if in fact such a sale was made, about which there was a conflict in the evidence.

Until that correction was made, Roberts, having, as he testified, no notice that the mule was intended to be embraced in the deed, had a right to purchase, and as against him there was no conveyance of the legal title by the trust deed.

It is also assigned for error that the court, at the instance of the defendant, gave the following charge : —

“ If the deed of trust had embraced the mule in controversy, and there had been no alteration of it; and if, also, under the deed of trust the original trustee, Mosely, by its provisions, had the right of possession on the 1st of December, 1877,. still the action of replevin could not have been maintained by said original trustee after the expiration of one year from the 1st of December, 1877 ; and an action which could not be maintained by the original trustee could not be maintained by a new trustee appointed as his successor.”

This charge ought not to have been given, because (1) the evidence clearly shows that the mule was not embraced in the deed of trust; (2) the deed'on its face did not give the right to the trustee to take possession of the mule on the first day of December, upon the mere default in the payment. He had the right to take possession only at the request of the creditor. The powers of a trustee in a deed like this are to be strictly construed, so far as they relate to the sale of the mortgaged property. This is the settled rule on the subject. He had no duty under the deed which required that he should have possession of the property, except to sell it. He was authorized to sell Only on the request of the creditor, and he had no right to-the possession except for a sale. It is therefore clear that the trustee had no cause of action to recover possession of the property until such request was made. (3) It was the duty of the court to construe the deed in trust, and not leave it to the jury.

We do not deem it necessary to decide whether, if Roberts had purchased after the alteration, he would be bound by the record as thus altered, since it plainly appears that whatever right he had acquired to the mule was acquired before the alteration was made.

Judgment reversed, and venire de novo awarded.