law-deed | deed of trust |
DEED OF TRUST
The term “deed of trust” has been described and defined in
various ways. Black's Law Dictionary defines deed of trust as “[a] deed
conveying title to real property to a trustee as security until the
grantor repays a loan,” and it goes on to remark, “This type of deed
resembles a mortgage.” Black's Law Dictionary 445 (8th ed. 2004). One
Texas court has described a deed of trust as follows: In this
state we use a deed of trust in the nature of a mortgage in transfers of
real property. Thereby a lien is retained or given as security, with
simultaneous execution of a deed of trust to one who is to hold the
office of trustee for the purpose of foreclosure without necessity of
resort to litigation. The deed of trust transaction is a conveyance in
trust by way of security, subject to a condition of defeasance, or
redeemable at any time before the sale of the property. In other words
it is a conveyance in trust for the purpose of securing a debt, subject
to a condition of defeasance.
Lucky Homes, Inc. v. Tarrant Sav. Ass'n, 379 S.W.2d 386, 388 (Tex. Civ.
App.-Fort Worth 1964), rev'd on other grounds, 390 S.W.2d 473 (Tex.
1965). Texas courts have also described a deed of trust more simply as
“a mortgage with power to sell on default.” Johnson v. Snell, 504 S.W.2d
397, 399 (Tex. 1973); accord Starcrest Trust v. Berry, 926 S.W.2d 343,
351 (Tex. App.-Austin 1996, no writ). Other cases focus on the nature of
the conveyance effected by a deed of trust. See Fin. Freedom Senior
Funding Corp. v. Horrocks, 294 S.W.3d 749, 755-56 (Tex. App.-Houston
[14th Dist.] 2009, no pet.) (“[A] deed of trust creates only a lien on
property and does not constitute a conveyance of the property.”); Wicker
v. Tex. Bank of Garland, N.A., No. 05-94-01109-CV, 1995 WL 141152, at *3
(Tex. App.-Dallas Mar. 31, 1995, writ denied) (not designated for
publication) (“[A] deed of trust or mortgage in Texas does not convey
title to the property; it does, however, convey an interest in the
property.”).
Also see:
Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
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