53 Tex. 37 | Tex. | 1880
It is well settled, that, as
Although appellants admit this as a general proposition, they contend that it should not be applied, as against the wife, to a deed of trust upon the homestead for future advances for an unlimited amount to be made to the husband, though she had joined in the mortgage.
If the wife voluntarily, under the solemnities provided by law for her protection, relinquishes her rights, there is no reason, on principle or sound public policy, why she should not, as any other person, be subjected to the consequences. The injury, if any, would be the result of her own voluntary act in the first instance.
Although the law extends its protecting shield over the just rights of a married woman, she should not, more than any one else, be permitted to induce third persons to extend to the husband credit on the faith of her own solemn deed, and then, after they have obtained the benefit of their joint act, repudiate it, to the injury of the third person. (Hartwell v. Jackson, 7 Tex., 581; Cravens v. Booth, 8 Tex., 248; Bein v. Heath, 6 How., (U. S.,) 238; 1 Story’s Eq., sec. 385; 1 Greenl. Ev., sec. 207.)
The deed of trust provided, that in the event of the death, inability, refusal, or failure of the original trustee, R. G. Street, to act as such, a substitute trustee could be appointed by the creditor, Glass, without other formality than an appointment and designation in writing.
The testimony showed that trustee Street, for reasons satisfactory to himself, failed, for some months after demand made upon him therefor, to execute the trust, and that when called upon to deliver up the trust deed, so that another appointment could be made, he not only gave it up, hut declared his determination not to have executed it unless Glass had paid him for
This, we think, constituted such failure, if not refusal, as authorized the appointment of a substitute trustee by Glass under the terms of the deed of trust.
There was the further issue raised by the testimony, that the failure of Street to execute the trust was also based upon the ground that Glass had not furnished him with an itemized account of the indebtedness due by Klein, and that as this was a reasonable prerequisite to the execution of his trust, there was consequently not such unconditional failure or refusal on the part of Street as authorized the appointment of a substitute trustee.
The charge of the court in general terms covered these issues as presented by the testimony. The court might very properly have gone further, and defined in the charge what, under the circumstances, would in law have been a failure upon the part of Street to act as trustee; and this doubtless was the intention of the second special charge asked by the defendants and refused by the court.
We do not think, however, that this charge as asked properly presented this point.
If not objectionable in so assuming as to have misled the jury as a fact proven in the case, that the failure of Street to execute the trust was based upon the failure of Glass to furnish the itemized account, it was objectionable in impliedly assuming that this was the sole ground of his failure, when the testimony showed another and a different one.
The defect, if any, in the general charge of the court, was one of omission merely, not, in our opinion, under the circumstances of this case, calculated materially to affect the rights of the defendants, and which was not properly cured by the special charge as asked, rather than an affirmative error.
Unless by the terms of the deed of trust the rate of interest had been restricted to eight per centum, then by agreement of the parties conventional interest as high as twelve per centum
That interest on open accounts should be charged at eight per centum, and this only from the 1st of January next after the accounts arc made, is the rule prescribed by the statute where there is no express or implied agreement of the parties to the contrary. (Paschal’s Dig., art. 3940; Pridgen v. Hill, 12 Tex., 374.)
It would seem from the testimony that interest in this case was properly allowed in accordance with the previous course of dealing between the parties.
Whether this be so or not, however, the court submitted to the jury the question, whether the sale was affected by the increased rate of interest, and the jury having virtually found that it was not, we are of opinion that the sale should not be set aside on this ground, if in any event a mistake in a calculation of interest would be sufficient for this purpose.
We do not think, under the testimony as presented by the record, that there was any such fraud, irregularity, or unfairness in the sale as would authorize us to set it aside for inadequacy of price.
Affirmed.
[Opinion delivered March 12, 1880.]
