Davis v. O'Connell
| Decision Date | 21 December 1908 |
| Parties | JOSEPH E. DAVIS v. JAMES O'CONNELL |
| Court | Mississippi Supreme Court |
FROM the circuit court of Lamar county, HON. WILLIAM H. COOK Judge.
O'Connell appellee, was plaintiff in the court below; Davis, appellant was defendant there. The suit was an ejectment to recover lands purchased by the plaintiff at a sale under a deed of trust executed by defendant and his wife to the trustee in March, 1906, before the Code of 1906 became operative. The deed of trust provided that sale thereunder should be made after ten days' notice of the time and place of sale, and the terms of the deed in this respect were followed by the trustee. Defendant contended that the trustee's sale was invalid because not advertised according to the provisions of Code 1906, § 2772. The court below decided for plaintiff and defendant appealed to the supreme court.
J. R. Holcomb and F. M. Hunt, for appellant.
The first sentence of Code 1906, § 2772, was brought forward from Code 1892, § 2443, and the second sentence was brought forward from the laws of 1892, Chapter 103, and the remainder of the section first appeared in the Code of 1906. The provision of this section that "No sale of land under a deed of trust or mortgage shall be valid, unless such sale shall have been advertised as herein provided for is void" is very broad and has no reference to the time of the execution of the deed of trust or mortgage, but all sales under mortgages or deeds of trusts under power of sale must be advertised for three weeks. But, even if this provision did not apply to deeds of trust executed prior to the adoption of the sentences of the section in which the words "hereafter executed" are used, the word hereafter means after the first adoption of the part containing the word "hereafter," and the adoption of the sentence containing this word was in the year 1896, or ten years prior to the execution of the deed of trust in question. Gilkey v. Cooke, 60 Wis. 133; 4 Words & Phrases, 32781. No statute of general character brought forward in the present code is repealed. Section 13 of the Act of Adoption of the Mississippi Code of 1906. Consequently the second sentence of this section 2772, being merely Chapter 103 of the Laws of 1896 brought forward, and its adoption dates from 1896. There is no question of the constitutionality of the provision of this section in regard to advertising raised in this case, and if any was raised, the following authorities completely establish its constitutionality: 28 Am. & Eng. Enc. L., 798 and notes; 26 Am. & Eng. Enc. L., 935; 27 Cyc., 171, 173; 10 Century Digest, Sec. 480; Osborne v. Johnson, etc., Co., 99 Ala. 309, 13 So. 776; Woodbury v. Grimes, 1 Colo. 100; Templeton v. Horne, 82 Ill. 491; Chopin v. Billings, 91 Ill. 539; Webb v. Moore, 25 Ind. 4; James v. Andrews, 1 Liv. Law. Mag., 147; Evans v. Montgomery, 4 Watts & S., 218. The supreme court of Illinois in Templeton v. Horne, 82 Ill. 491, says: "A change in the manner of enforcing a lien which leaves efficient remedy is constitutional."
C. G. Mayson and McWillie & Thompson, for appellee.
A proper construction of the statute itself will require the affirmance of the judgment of the court below. How should the statute, Code 1906, § 2772, be construed? Its first sentence, speaking aside from the fact that the same language is contained in the like section of the previous code, clearly relates to mortgages and deeds of trust to be executed after the Code of 1906 became operative. The second sentence by its terms relates to deeds of trust to be executed after the section became operative. The third sentence beginning with the words "Sale of said lands shall be advertised for three weeks'" etc., evidently relates back to the preceding parts of the section and therefore relates to sales made under deeds of trust and mortgages executed after the section became operative. The sentence of the section next following beginning with the words "No sale of lands under a deed of trust shall be valid" etc., relates to the sales mentioned in the preceding parts of the section and the words "regardless of any contract to the contrary" were used in view of the fact that deeds in trust executed after the code should become operative might follow old forms or the parties might undertake by contract to disregard the statutory provision.
In the light of the foregoing observations it seems clear that the statute has no application and was never intended to be applied to deeds of trust executed before it became operative.
The deed of trust involved in this case was executed on March 10, 1906; by its terms it provided that the trustee therein named might make sale of the property "after giving notice for ten days of the time and place of said sale." This was a part of the contract between the parties and no subsequent legislation could impair its obligation. Let us see whether the authority cited by the court reaches this case. According to the writer of the Encyclopedia (28 Am. & Eng. Ency. of Law, 2d ed., 798, par. dd.) the law in force when a sale is made controls in the matter of publication if such be the legislative intent, and for this the cases of Atkinson v. Duffy, 16 Minn. 45, and James v. Stull, 9 Barb. (N. Y.), 482, are cited. The statement of the text writer was not made with the constitutional question in mind; he wrote with reference to general laws relating to the foreclosure of deeds of trust or mortgages with power of sale; this is quite apparent when the eases cited are examined. It is shown certainly by dear inference, in the case of Atkinson v. Duffy, 16 Minn. that by the laws of that state the sale of property under mortgages or deeds of trust when made by a trustee was regulated by a general statute. The mortgage there in question contained the usual statutory power of sale, that is to say, it provided for a sale under the general statutes to be made by the sheriff of the county upon the terms on which, by law, execution sales were required to be made. The law there in question required notice of sale to be published seven weeks and not six weeks as was provided under the previous statute in force when the mortgage was executed. A sale was made after the giving of the seven weeks' notice as provided in the new statute. The supreme court of Minnesota held that the sale was good, the mortgage in question, providing for a sale according to the statute, was made in view of an amendment of the statute, and as its terms failed to negative the idea of a new statute being applicable, it was held to have been made in subordination thereto. The case, however, went off on the idea that one week's additional notice of the sale could not be made the basis of complaint by the mortgagor.
The case of Lowell v. North, 4 Minn. 32, cited in Atkinson v. Duffy as authority for application of the statute does not touch the constitutional question involved at all.
The Minnesota court, however, in a later case, O'Brien v Krenz, 36 Minn. 136, declared an act of the legislature to be unconstitutional which undertook to forbid foreclosures under power of sale in mortgages...
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