(dissenting).
I respectfully dissent. It must be remembered this was not a trial on the merits before the court, but a summary judgment case. Both the trial court and this court are obligated to follow the rules, many of which are restated by Justice Joe Greenhill in Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup., 1965). In that opinion reference is first made to Rule 166-A which provides that movant is entitled to judgment if it is shown that there is no genuine issue as to any material fact.
“The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. [citing cases] In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. [citing cases] * * * All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true, [citing cases]”
In passing upon the motion for summary judgment filed by USAA, the trial court, as stated above, was obligated to accept as true the evidence contained in the affidavits filed by Steves in opposition to such motion for summary judgment. The affidavit of Tracy F. Smith stated in substance: That he is one of the trustees for the Trust and Comptroller of Steves Sash & Door Company, Inc., and in charge of the financial records. In 1966 and 1967, the Trust was unable to make the installment *939payments due on the purchase price of the 212 acre tract of land in question. Steves Sash & Door Company, Inc. made advancements to the Trust so it could make such payments. Such advancements totaled $18,-705.26 as of February 29, 1968. Additional payments were due within one year on such notes in the amount of $17,144.20, which the Trust was not financially able to make. Miller Montag, a CPA, wrote Smith a letter dated March 22, 1968, stating such real estate should be removed from the Trust. On that recommendation, the trustees conveyed the land to Steves, individually. The trustees had such land appraised by Roy Leslie, Jr., at $1,000.00 per acre and agreed to transfer the title to Steves for $212,367.00 on April 30, 1968. The deed was dated April 30, 1968, although it was not actually signed until later. Steves assumed the balance due on the land and executed a note for $126,988.-77, which he paid January 30, 1969, plus $5,714.48 in interest. Steves told Smith and Ike Kampmann, Jr. (the other trustee) about the proposed sale to USAA and they urged him to proceed and Steves executed the contract of sale to USAA. Before June 1, 1969 (the closing date) the trustees had a meeting and agreed to join as grantors in a deed to USAA and that if necessary the proceeds from the sale of said property would be paid into the registry of the court for a final determination by the court as to the allocation of the proceeds between Steves, individually, and the Trust.
An affidavit of Miller Montag, indicated the following, in substance: That he is a CPA and has personal knowledge of the financial condition of the Trust. A balance sheet of the Trust as of February 29, 1968 showed current assets of $6,320.37 and current liabilities of $40,072.73. In his opinion, the Trust was insolvent in that it was unable to pay current bills as they came due. The 212 acres of land involved is shown on the balance sheet at a value of $169,939.50, against which there was a balance due of $95,812.60, of which $17,144.-20 was due within one year. A statement of income for the period of March 1, 1967 to February 29, 1968 shows a net loss of $7,539.09. He advised the trustees to sell such land and invest in income producing assets. In his letter of March 22, 1968, he stated, “Some thought should be given to transferring the farm property owned by the Profit Sharing Trust out of the Profit Sharing Trust to either Marshall or the Steves Sash & Door Company, Inc.”
The affidavit of Steves contained substantially the following: That he is President of Steves Sash & Door Company, Inc., and he, his wife, and children owned all of the stock. March 1, 1960, he executed the instrument creating the Trust. February 13, 1964, the Trust purchased the 212 acre tract for $169,885.60, paying $15,448.41 in cash, assuming a note upon which there was a balance of $43,340.70, and executed a new note in the amount of $110,950.00. The combined total due on both notes each year was $17,144.20. Steves personally guaranteed the new note executed. The Trust did not have sufficient funds to make the payments and as of February 29, 1968, Steves Sash & Door Company, Inc. had made advances to the Trust so the notes would not be foreclosed. About March 22, 1968, Miller Montag advised him the Trust should sell the 212 acres. Roy Leslie, Jr. appraised the land at $1,000.00 per acre by letter of April 25, 1968. “Shortly thereafter,” the trustees decided to sell to Steves for $212,357.00, and their attorneys were requested to draw a deed and date it April 30, 1968. Steves had no plans or intentions to sell the land but intended to develop it himself. Some time after the close of the Hemisfair, but before the Olympics, Robert Ayers, a real estate agent, called and said he had someone interested in the land, but was told by Steves that it was not for sale. After Steves went to the Olympics in Mexico and returned home, Ayers called again and was told it could be bought for $2,500.00 per acre. Ayers and Steves drove over the property and Steves was told for the first time that USAA was Ayers’ client. Shortly thereafter, Ayers *940made an offer of $500,000.00, which Steves later accepted and the contract of sale was prepared and executed. Before the execution of such contract, Steves discussed the sale with the other two trustees, and they urged him to go ahead with the sale and the contract. Before June 1, 1969, the trustees had a meeting and it was agreed the trustees would join with Steves as grantors in a deed to USAA and if necessary the proceeds of the sale would be paid into the registry of the court for a final determination as to who would get the proceeds. After making this contract, Steves, personally, incurred an indebtedness and paid off his note to the Trust for this land.
The affidavit of John H. Wood, Jr. contained the following, in substance: That he is the attorney representing Steves. Prior to June 1, 1969, Steves and the other trustees in regular meeting agreed the purchase price in the contract with USAA was reasonable and fair, and that the trustees would join with Steves individually in executing a warranty deed to USAA. The trustees knew the escrow agent, Guaranty Abstract & Title Co., would pay the proceeds of the purchase price to them jointly and severally by check or draft, and that it would be necessary for the trustees and Steves to tender the proceeds of the sale into court to have adjudicated the respective rights of Steves and the Trust. The escrow agent had repeatedly advised Steves and the trustees that the proceeds would be paid to the trustees and that Steves could not get any part of the money without obtaining a court order.
December 5, 1969, the trial judge entered an order permitting Steves to file a supplemental petition in reply to defendant’s answer and defendant’s motion for summary judgment. This supplemental petition contained an affidavit signed by Steves in which he swore that he had personal knowledge of all the facts alleged and that the same were true and correct.
Among other allegations, Steves denied any breach of his fiduciary duty as a trustee. He stated that positive and irretrievable commitments on the part of Guaranty Abstract & Title Co., the escrow agent, to pay the money into the registry of the court, for the court to determine what sums of money, if any, were to be paid to him and the Trust; that the arrangements had been made before June 1, 1969; and that Guaranty Abstract & Title Co. had been instructed to file such interpleader at Steves’ expense. The trial court signed and entered an order granting defendant’s motion for summary judgment December 10, 1969.
I agree with the majority opinion that a trustee cannot profit from self-dealing with his trust, and Steves must not be permitted to do so. However, there are many equities which must be adjusted between Steves and this Trust. First, as shown by the affidavits above, Steves personally guaranteed the note executed by the Trust in purchasing this land. Then the Steves Sash & Door Company, Inc. (wholly owned by Steves and his family) made advances to the Trust so the 1966 and 1967 installments on the notes could be paid. The Trust became insolvent and the trustees sold the land to Steves and a cash payment was made, the note assumed by the Trust, and the note executed by the Trust in purchasing the land, were each paid in full. At this point, Steves has some $212,000.00 invested in this land. Steves executed a contract of sale with USAA under the terms of which he obligated himself to furnish an Owners Policy of Title Insurance and a good and marketable title to the land in question. If Steves acquired any title under the deed from the Trust, such title would be conveyed by the deed executed by him individually and tendered to USAA. If the Trust still had any title to this land after the deed to Steves, such title would be conveyed by the deed executed by the trustees and tendered to USAA. The Trust Indenture provided that the title to all of the assets of the Trust would be vested in the trustees. Such Trust Indenture specifically gave the trustees all of the rights, powers and au*941thority under the provisions of Section 25, of Article 7425b, V.A.C.S., which include the right to sell and dispose of real estate. Paragraph Hof such Trust Indenture reads as follows:
“H. Persons dealing with the Trustees are not required to see the application made by the Trustees of the funds or other property received by Trustees from such persons.”
In my opinion the deed from Steves individually and the trustees of the Trust, together with the Title Binder, complied with the terms of the contract. The pleadings and the affidavits show arrangements had been made to pay the purchase price into the registry of the court by the escrow agent, Guaranty Abstract & Title Co. Such court could adjust the equities between the parties and see to it that Steves did not profit from his self-dealing with his trust. I would reverse and remand this case for trial.