Fauntleroy v. Mardis

• Decision Date: 28 June 1920
• Docket Number: 20992
• Citation: 85 So. 96,123 Miss. 353
• Court: Mississippi Supreme Court
• Parties: FAUNTLEROY ET AL. v. MARDIS ET AL

85 So. 96

123 Miss. 353

FAUNTLEROY ET AL. v. MARDIS ET AL

No. 20992

Supreme Court of Mississippi

June 28, 1920

March 1920

1 MORTGAGES. Statute an to posting notices of foreclosure sale construed.

That part of section 2772, with amendments, Code of 1906 (section 2276, Hemingway's Code), which reads as follows "Sale of said lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated, for said time, and such notice and advertisement shall disclose the name of the mortgagor or mortgagors whose property is advertised for sale---requires the posting of a notice of the sale at the courthouse door of the county where the land is situated, in both instances, viz. when the sale is advertised for three consecutive weeks in a newspaper published in the county, and also when the sale is advertised in a newspaper having a general circulation therein.

2 MORTGAGES. Foreclosure sale not "advertised" by posting, invalid. That part of this section which reads as follows: "No sale of lands under a deed of trust or mortgage shall be valid unless such sales shall have been advertised as herein provided for, regardless of any contract to the contrary"---makes invalid a sale where a notice was not posted as required at the courthouse door. The posting of the notice at the courthouse door constitutes a part of the advertisement.

3 MORTGAGES. Receipt reciting trustee's sale and surrender 'of possession of mortgagor held not to estop mortgagor to assert, title.

When the mortgagor continues in possession of lands for a year and a half after the foreclosure sale at which the lands were purchased by the mortgagee, and subsequently surrenders possession to the mortgagee upon payment of a valuable consideration to her, but still asserts title to the lands in question, no estoppel arises by virtue of signing a receipt reciting the trustee's sale and the surrender of possession by her.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Jefferson county, HON. R. W. CUTRER, Chancellor.

Suit by W. E. Fauntleroy and others against Chas. Mardis and others. From a decree dismissing the bill, plaintiffs appeal. Reversed and remanded.

Decree reversed, and cause remanded.

L. L. Posey, Truly & Truly and G. G. Lyell, for appellants.

It will not escape the attention of this court that this is not an appeal from the decision of a chancellor upon a controverted issue of fact. Therefore there is no presumption of correctness attached to the finding herein. The chancellor only passed on two issues of fact and in each of them sustained the contention of the complainants. One that there was an agreement, (whatever its exact details may have been) existing between Mrs. Fauntleroy and Mr. Junkin as to the rights of the parties in the property after the trustee's sale, the other, that there was no notice of the trustee's sale posted at the courthouse door. These were the only two issues of fact passed on by the chancellor. The chancellor held that notwithstanding these facts the case was controlled by a single principle of law, the statute of frauds, and decided adversely to the complainants, apparently overlooking or ignoring the fact that this is a suit, not to enforce a contract, but to set aside a trustee's sale.

Being a suit to set aside a trustee's sale, the rights and duties of the respective parties are, in our opinion, well settled under the jurisprudence of our State. "Ordinarily the presumption is to be indulged that the trustee did everything necessary for a valid exercise of the power of sale." Tyler v. Herring, 67. Miss. 172; Smith v. Kirkland, 89 Miss. 647; Wilzinski v. Watson, 69 So. 1009; McSwain v. Young, 72 So. 129. But this presumption simply makes it a prima-facie case which may be overthrown by affirmative proof. Tyler v. Herring, supra; McSwain v. Young, supra. If it be shown that the necessary requirements be not complied with the sale will be overthrown, and if the proof leaves the question in doubt it is for the jury to decide. Tyler v. Herring, supra. The presumption obtains even if the trustee's deed is silent as to his compliance with the conditions of the instrument. McGaughn v. Young, 37 So. 41. But the presumption is overthrown where a sale is made in disregard of the plain provisions of the instrument, and this fact be shown affirmatively by the record." McGaughn v. Young, supra; McMahan v. Building & Loan Association, 23 So. 431.

In the absence of evidence that the sale was advertised for four weeks next before the day of sale, the judgment of the court below should have been for appellant." McMahan v. Building & Loan Association, supra. The affirmative proof necessary to overthrow the prima-facie presumption may be supplied either by the direct testimony of witnesses or by the affirmative statements of the trustee's deed itself.

With these statements of the law we pass to a brief consideration of the different grounds upon which the trustee's sale in this case is sought to be overthrown.

First: It is the contention of the complainants the trustee's deed itself supplies the proof that the requirements of the statute as to the newspaper advertisement was not complied with. Planter's Mercantile Company v. Braxton, 82 So. 323.

Second: The trustee's deed is further assailed because of the failure to post a copy of the advertisement at the courthouse door for the time required by section 2772, Code 1906, section 2276, Hemingway's Code.

An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations except as to the ten-year statute of adverse possession. (Laws 1896, ch. 103; Laws 1908, ch. 180, in effect March 20, 1908.) The proof shows that no notice of the sale was posted at the courthouse door for the length of time set forth in the statute. There is no dispute on this point. The statute (section 2772, Code 1906), was evidently enacted in the interest of debtors and for the security of land titles acquired under foreclosure. It was a common practice before the enactment of the statute to execute deeds of trust providing for ten days' notice of sale, and on such short notice to foreclose trust deeds on valuable tracts of land and the homes of humble debtors. The statute was designed, among other things, to give due publicity to sales under deeds of trust by requiring a reasonable notice of sale, the posting of one notice at the courthouse door of the county where the land is situate, and publication in a newspaper of that county--wise provisions calculated not only to give due notice to the owner of the lands, but also to prospective bidders. Wilzinski v. Watson, 69 So. 1009, 110 Miss. 86; see, also, Freeman's note to Tyler v. Herring, 19 A. S. R. 388. The Wilzinski case was argued before both divisions of this Honorable court and received the individual judgment of each member of the bench. There was a forcible dissent as to one part of the opinion of the majority but the entire bench were in harmony upon the points covered by the above excerpt.

This identical question was again before this court in Lynchburg Shoe Company v. Castleman,, 76 So. 878, 116 Miss. 188; Planters' Mercantile Company v. Braxton, 82 So. 323.

It is essential to the validity of a trustee's sale, where the deed of trust under which the sale is made does not otherwise provide, that notice of the sale be posted at the front door of the courthouse of the county wherein the land lies. Shea v. Ballard, 56 S.E. 472. But judicial interpretation aside, and examination of the statute itself, would show the plain intendment of the law.

The legislature in 1896, having remedied many of the evils which then existed as pointed out by this court in Wilzinski v. Watson, there developed another evil in that parties holding trust deeds would substitute trustees of different names and then advertise the property by the general description of which might well escape the notice of any not familiar with land numbers or conveyancing. In order to make more certain that notice was brought to the unfortunate debtor that his property was being offered for sale, the legislature, in 1908, amended section 2772 as it then was by inserting--"such notice shall disclose the name of the mortgagor or mortgagors whose property is advertised for sale." McPherson v. David, 48 So. 627.

The foregoing is a plain, fair and dispassionate statement of the case which was, by a court of conscience withdrawn from the consideration of a jury which he had already granted, in defiance of all conflict of fact, and which was decided adversely to the complainants upon a question of law which was not involved nor applicable. We challenge that ruling at the bar of this court of justice.

Ratliff & Kennedy, for appellee.

The assailing of the trustee's deed, because of the alleged failure to post a copy of the advertisement at the courthouse door for the time required by section 2772 of the Code of 1906, is without any merit whatever. Before proceeding to the argument of this immediate point, we desire to call the attention of the court to the fact that the chancellor did not hold as a matter of fact, that a notice of the trustee's sale was not posted in due time at the courthouse door, but at page 229 of the record, we will find that the chancellor said that it is shown that no notice of the trustees was posted on the courthouse bulletin board for three weeks. The chancellor also took the position that posting in any manner was wholly unnecessary, but regardless of whether it was necessary or unnecessary, it is immaterial...