Smith v. Kinney's Executors

Citations

• 33 Tex. 283

Syllabus

<p>1. If lands be vested in a trustee for payment of debts, and his power of sale be limited to a specified time, the lands will not become divested of the trust by the failure of the trustee to make sales within the time limited. On the contrary, though the trustee’s power to sell be extinguished by the lapse of the time, yet the trust will survive, and a court of equity will enforce it for the benefit of the parties entitled.</p> <p>2. If a trustee selected by a debtor misapplies trust funds with which he should have discharged the debtor’s liabilities, the creditors eannot be prejudiced thereby, unless they are chargeable in some way for the misappropriation by the trustee.</p> <p>3. A new cause of action is not set up by an amended petition which alleges ' the loss and substitutes a copy of the note which evidenced the indebtedness sued for in the original petition. The statute of limitations, therefore, can afford no defense against such an amended petition, unless it be also available against the original petition.</p>