Rosborough v. Picton , 12 Tex. Civ. App. 113 ( 1896 )

We deem it proper to say that the sixteenth special exception, which directly questions the sufficiency of the averments as to the deficiency of land in the two Hynes grants, should have been sustained. There is a clear attempt to allege such deficiency and from the allegations an inference of its existence may be drawn. That 1200 acres embraced within the boundaries are covered by water is specifically averred, but, consistently with that fact, such boundaries (which are set out in the petition), may include the proper quantity of fast land. That they do not, is left to inference rather than directly and positively averred.

As remarked in the original opinion, the judgment cannot be affirmed on this ground, for the reasons there given. If the facts alleged were true, there was no necessity to tender the expenses of the trustee incurred in the effort to sell. While the holders of the notes had the right to cause a sale to be made for the balance admitted to be due, they did not have the right to sell for more than was due. Had the sale not been prevented by injunction, it is true that the legal title would have passed to a purchaser. The trustee had the power to sell, and hence could, by an actual sale, pass title, so long as any part of the debt remained unpaid, as was held in Groesbeck v. Crow, 85 Tex. 200 [85 Tex. 200]. But it is none the less true that his act in attempting to sell for more than was due, would be wrongful as against the debtor, and the latter would not be bound to reward him for it, or to reimburse him for his expenses.

Motion overruled.