Stewart v. State (60 Tex. Crim. 92, 1910)

McCORD, Judge.

Appellant was convicted in the court below for the fraudulent disposition of mortgaged property and his punishment assessed at confinement in the penitentiary for two years; hence this appeal.

The bill of indictment alleged that the appellant on or about the 2nd day of August,- 1909, executed and delivered to O. E. Faubion a valid lien in writing upon certain personal and movealble property in substance as follows, to wit; then sets out the mortgage in the usual form, stating that in consideration of the sum of $250 paid by 0. E. Faubion, the defendant sold and conveyed unto Faubion, trustee or assigns one bay mule about nine years of age and one black mule ten years old; that he warranted the title to said property to said Faubion. That the conveyance was intended as a mortgage and that he was indebted to the said Faubion in the sum of $250 as evidenced by a certain promissory note bearing even date and payable to the order of O. E. Faubion the first day of ¡November, and if the note should be paid at maturity then the obligation should be null and void. The said Faubion as trustee was authorized and empowered in case of failure of payment at maturity to take possession of said property and sell the same for cash at Weir, Texas, after giving notice, etc., and the proceeds to be applied to the payment of the note, interest and cost and the remainder, if any, to be turned over to the said defendant and that the holder of the indebtedness might become the purchaser at said sale, being the highest bidder. This mortgage is in the usual form and the bill of indictment goes ahead and alleges that the defendant unlawfully and fraudulently sold said property and disposed of the same with intent to defraud the said O. E. Faubion and the legal owner and holder of said mortgage, and that the mortgage was still valid and subsisting at the time of the sale. Objection is made to the bill of indictment because it fails to allege -for whom Faubion was trustee, it being stated that where a pleading described a party as being a trustee for another, or acting in that kind of fiduciary capacity, the pleader must disclose the beneficiary and for whom he was acting as trustee or agent. In a proper case, it may be stated, that the above is a correct proposition, but in this case it does not state that the indebtedness was held by Faubion as trustee for anyone but simply the mortgage nominates him as the trustee to seize the property and dispose of it in case of a failure to pay and that the title was put in him as trustee for the owner or holder of the note. In other words, he was but the sale agent. It is customary in all mortgages and deeds of trust to name a trustee to whom the property is conveyed and who shall dispose of it. Frequently this trustee named in the mortgage is the holder of the debt. Sometimes another party is substituted, but the debt being transferable and assignable the property must be placed somewhere and in some one’s hands and the authority to sell placed somewhere, and this party is generally nominated the trustee or the agent to receive and sell the property and distribute the proceeds in accordance with the nomination in the deed of trust or mortgage. The mortgage on its face discloses the character of trusteeship mentioned and it was not necessary for the pleader to go ahead and allege that Faubion held the debt and that Faubion was trustee for the holder of the debt. We are of opinion that the bill of indictment is not subject to the objection raised in the case.

In the trial of the case J. I. Lister testified that he was in the banking business at Weir, Texas; that he, witness, drew up the note and mortgage in the case and that the note was for $350 and that the note was made payable to O. E. Faubion or order and due November 1, 1909, and also that the defendant executed both the mortgage and the note and he attested them as witness. Both of the instruments were introduced in evidence. The witness further stated that this note had never been paid and the mortgage never satisfied; that he had made search for the property and that it could not be found; that he saw the mules at the time the instrument was executed and they were in the possession of the defendant. This witness further stated that he had a horse and that he turned it over to Stewart to sell with the understanding that the defendant was to have all over $350 that he might get for the horse. The defendant afterwards traded the horse for a pair of mules; that he brought the mules and showed them to him, witness, and told him those were the mules for which he had traded the horse and that he already had a trade by which he expected to sell the mules — in fact had already sold them. After some little time, defendant not having sold the property, nor made any report on it, witness went to see the defendant about the matter and Faubion being dissatisfied also about the mtater, requested him to see the defendant and get the matter in some kind of shape and take security for it. The defendant at the time he traded the horses for the mules told the witness that he had a man who would take the mules