Crump v. Tucker

• Decision Date: 30 January 1928
• Docket Number: 26839
• Citation: 149 Miss. 711,115 So. 397
• Court: Mississippi Supreme Court
• Parties: CRUMP et al. v. TUCKER. [*]

115 So. 397

149 Miss. 711

CRUMP et al. v. TUCKER. ^[*]

No. 26839

Supreme Court of Mississippi

January 30, 1928

Division A

1 NOTICE. Publisher's affidavit is evidence but not conclusive of due publication of notice (Hemingway's Code 1927, section 1712).

Under Hemingway's Code 1927, section 1712 (Code 1906, section 1980), providing that publication of a notice in a newspaper when required by law or order of court may be proved by publisher's affidavit, affidavit is only rebuttable evidence and not conclusive.

2. APPEAL AND ERROR. Chancellor's finding will not be reversed unless appearing manifestly wrong.

Unless chancellor's finding of facts appears manifestly wrong it will not be reversed on appeal.

3 MORTGAGES. Sale under deed of trust is void, more than a week elapsing between last publication and the day of sale (Hemingway's Code 1927, section 2431).

Under Hemingway's Code 1927, section 2431 (Code 1906, section 2772), requiring sale of land under deed of trust to be advertised for three consecutive weeks preceding the sale, sale is void where more than a week elapsed between the sale and the last publication preceding the sale.

HON. J. L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sharkey county. HON. J. L. WILLIAMS, Chancellor.

Suit by Mrs. E. A. Tucker against E. B. Crump and others. Decree for complainant, and defendants appeal. Affirmed.

Affirmed.

Clements & Wright, for appellants.

The most serious point in the case is whether or not the issue of the paper of December 28th was out before the sale. We know the rule of this court on reversing the case on the facts where decided by the chancellor, but in this case we respectfully submit that the finding of the learned chancellor is against the weight of the credible proof. We feel that the weight of the credible testimony shows that four publications were made before the day of sale, and that the chancellor was in error in holding the contrary; and that we are justified in asking this court to reverse this case on the facts. If this decision is allowed to stand on this evidence, the appellants have no recovery, for the debt secured was barred on December 31, 1923, which was two days after the proposed day of sale as advertised. The notice of sale was duly posted, and remained so under the proof; the notice had been regular in the paper, no question raised against it except that the fourth issue did not appear until the day of sale, and after the hour of sale. They attempt to impeach the proof of publication by the testimony of the man that made it, his wife, and co-owner of the paper, and one of the attorneys for appellee, who knows nothing except what was told him by these same people.

Brunini & Hirsch and John S. Joor, Jr., for appellee.

Appellants' position is, that the proof of publication, under section 1712, Hemingway's Code 1927, section 1640, Hemingway's Code 1917, is not subject to impeachment. They offer no law in support of their position, or authority, and for the very simple reason that they can find none. Both sides recognized that if the last publication as a matter of fact, was made six hours after the sale, on Saturday, December 29, 1923, the sale was void and that the only question before this court is: What was the fact? Appellees' answer is, this record shows, beyond controversy, that the paper was published about six hours after the hour of sale. "Planters Mercantile Co. v. Braxton," 120 Miss. 470, is conclusively against the contentions of appellants. There is no law which is better settled than that the trustee must strictly follow the powers conferred upon him. He must act within the limitation of the powers. Perry on Trust and Trustees, (6 Ed.), sec. 602, p. 1009; sec. 782, p. 1288; sec. 666, p. 1005; Enochs v. Miller, 60 Miss. 19; Allen v. Alliance Trust Co., 84 Miss. 319; McCoughan v. Young, 85 Miss. 277.

OPINION

MCGOWEN, J.

Mrs. E. A. Tucker, the appellee, exhibited her bill in the chancery court of Sharkey county against E. B. Crump et al., seeking an injunction to prevent the foreclosure of a trust deed, but no temporary injunction was granted, and after the filing of the bill, while same was pending, the trust deed was foreclosed and E. B. Crump, the appellant, became the purchaser of the property.

The trust deed in controversy appears to have been signed and acknowledged by Mrs. E. A. Tucker, the wife, and E. B. Tucker, the husband, on land owned by them, constituting less than one hundred sixty acres, and alleged to have been at all times their homestead.

The bill was filed in December, 1923. It alleged that the husband, E. B. Tucker, died in February, 1919. The bill specifically denied the execution of the trust deed by the complainant, Mrs. E. A. Tucker, and alleged that the trust deed had been subsequently paid. The bill was several times amended, and finally charged that the trustee's deed to Crump, and the subsequent deed of Crump to George, were void for the reason that no legal publication of the notice of sale had been made, because eight days elapsed between the date of the last publication of the newspaper, to-wit, December 21, 1923, and the date of sale, to-wit, December 29, 1923.

The court below held that the trustee's sale was void, and canceled the trust deed to Crump and Crump's deed to appellant George.

Three issues were presented in the court below, and are argued here, to-wit: (1) Did Mrs. Tucker sign the deed of trust? (2) Was there any indebtedness due under the deed of trust at the time of the sale? and (3) Was the notice of sale by advertisement in the newspaper valid?

It being clear to us that the chancellor based his decision on the last ground, holding the trustee's sale to be void, and consequently, that the deeds in pursuance of said sale were void, we shall pretermit a discussion of the first two questions.

On the issue of facts presented the chancellor found that publication had not been made according to statute, and that the sales were invalid and, in effect, held that there was no publication of the newspaper on December 28, 1923.

The appellants Crump et al., relied on proof of publication, sworn to by the editor and publisher, that the advertisement was inserted in the issues of the Deer Creek Pilot, dated December 7, December 14, December 21, and December 28, 1923.

The complainant, appellee here, Mrs. Tucker, introduced evidence tending to show that the paper was not in truth and in fact published on December 28, 1923, that said paper was not published until December 29, 1923, which was Saturday; that the sale occurred between the hours of eleven and twelve o'clock Saturday, December 29th; and that the issue of the paper dated December 28th, was not put in the post office until about six o'clock of the afternoon of December 29th.

Counsel for appellant concedes that if the chancellor was correct in the finding that eight days elapsed between the last publication, on December 21, 1923, and the day of sale, December 29, and that there was no publication of the paper on December 28, 1923, the decree below is correct. But he insists that the chancellor was in error in his findings of fact, for two reasons:

(1) He contends that section 1712,...