Gray v. Sullivan

• Citation: 162 Miss. 610,139 So. 855
• Decision Date: 07 March 1932
• Docket Number: 29507
• Court: Mississippi Supreme Court
• Parties: GRAY et al. v. SULLIVAN et al

139 So. 855

162 Miss. 610

GRAY et al. v. SULLIVAN et al

No. 29507

Supreme Court of Mississippi

March 7, 1932

Division A

1 MORTGAGES. Resale under deed of trust at three p. m. held invalid notwithstanding sale was advertised for about noon and resale if successful bidder defaulted was announced before bidders dispersed (Code 1930, section 3040).

Sale was invalid because, even if the sale advertised for about noon could have been started at any time before four o'clock in the afternoon under Code 1930, section 3040 providing, in substance, that sales under execution shall not start earlier than eleven a. m., nor continue later than four p. m., where the purchaser fails to make good his bid, the property cannot be offered for resale without a new advertisement unless the resale is made before the bidders at the first sale have dispersed.

2. MORTGAGES.

Announcement of resale, if successful bidder defaulted, would not authorize resale even if unconditional notice would authorize it (Code 1930, section 3040).

3. HUSBAND AND WIFE.

That husband, co-owner with wife, acquiesced In postponing trustee's sale rendering resale invalid, did not preclude nonconsenting wife from redeeming land.

HON. J. L. WILLIAMS, Chancellor.

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

Suit by Simpson Gray and another against Fanny Sullivan and others. From a dismissal of their bill, plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

Canizaro & Canizaro and G. L. Larr, Jr., all of Vicksburg, for appellants.

The essentials of a notice of sale under a trust deed are statements of the time, place and terms of sale and such a description of the property to be sold as, if read by persons familiar with the neighborhood, will advise them what is to be sold and the terms upon which it can be bought. The purpose of notice is not only to notify the grantors in the deed of trust, but the public that the property may bring a fair price.

Yellowly v. Beardsley, 76 Miss. 613.

Where the successful bidder fails or is unable to comply with his bid, the property may be put up for sale a second time. This may be done immediately, if the purchaser's refusal or inability is clearly manifested, and the necessity of advertising a second time or giving new notices may be avoided if the resale is made on the spot and before the bidders disperse, although otherwise there must be a new publication and evidence of the trustee's or mortgagee's continuing authority to make the sale.

41 C. J., p. 986, sec. 1439.

If the purchaser at an auction sale under a power contained in a mortgage is unable or refuses to comply with his bid before the bidders disperse, the property may be sold without a fresh advertisement. It has, however, been held that where the trustee in a deed of trust with a power of sale gives notice for a certain number of days, advertises the property, and puts it up for sale at public auction, and the property is struck off to a bidder, the trustee cannot upon the same day resell the property because the purchaser refuses to complete his contract, unless there has been a new publication of notice. Certainly, a resale upon the refusal of the first bidder to comply with his bid is not valid, if made after the bidders dispersed without a new notice of sale.

19 R. C. L., p. 621, sec. 438; Barnard v. Duncan, 38 Mo. 170, 90 Am. Dec. 416; Love v. Harris, 72 S.E. 150, 152; McPherson v. Davis, 95 Miss. 215, 48 So. 625; Valentine v. Dunagin Whitaker Co., 102 Miss. 563.

A conditional notice of resale was not sufficient.

Yellowly v. Beardsley, 76 Miss. 613; 19 R. C. L., p. 599, sec. 414.

If it can be said that Simpson Gray is estopped from complaining of the conditional postponement of the sale for the reason that it was by his consent and for his benefit, most assuredly the reason for the estoppel on the part of Simpson Gray is not applicable so as to estop Hattie Gray, as the postponement was not by her consent nor for her benefit.

The mere fact that the appellants are tenants in common of the property in this suit does not bind Hattie Gray or estop her in any way because of the act, conduct or estoppel of her cotenant, Simpson Gray.

7 R. C. L., p. 874, sec. 68.

If land owned by cotenants is mortgaged and the mortgage is foreclosed, a demand for possession by the purchaser under the foreclosure sale, a refusal of which will destroy the right of redemption, must be made on each of the cotenants. A demand upon one is not a demand upon the other in this connection, imposing any duty of surrendering possession, although such cotenants are husband and wife.

7 R. C. L., p. 874, sec. 68; Harden v. Collins, 138 Ala. 399, 35 So. 356, 100 A. S. R. 42.

An estoppel operating against one tenant in common in relation to the common property may be defeated by an assertion of the rights of his non-estopped cotenants.

38 Cyc., pp. 106-107; 7 R. C. L., p. 874, sec. 68; Harden v. Collins, 138 Ala. 399, 35 So. 356, 100, A. S. R. 42; 41 C. J. 1007.

A husband has not, by virtue of the marital relation, any authority to act as the agent of his wife or to make any agreement on her behalf binding her rights without her consent.

13 R. C. L., p. 1168, sec. 194; 13 R. C. L. 1171, sec. 198; Crawford & Wife v. Redus, 54 Miss. 700; Partee v. Stewart, 50 Miss. 717; Threadwell v. Herndon, 41 Miss. 38.

The husband has no power to ratify, without the consent of the wife, a void sale of her land.

Thomas B. Kempe v. Pintard, 32 Miss. 324.

Brunini & Hirsch, of Vicksburg, for appellees.

If the maker of the deed of trust bids at the sale an amount in excess of the highest bid made by the bidders present and continues even at a resale to make such bid, and being unable to make his bid good, such a mortgagor could continue to defeat sales by a trustee by continuing to make his unreliable bid.

Davis v. Hess, 103 Mo. 31, 15 S.W. 324.

The trustee under the deed of trust had a right to sell the property at any time between 11:00 A. M. and 4:00 P. M.

Section 3040, Code 1930.

Since the trustee did not exhaust his powers at the first sale at 12:00 o'clock, noon, no necessity for a re-advertising was required since the trustee sold the property within the hours required by law, on the same day named in the notice of publication, and within the hours prescribed.

Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property of contract, or of remedy.

2 Pomeroy Equity Jurisprudence, sec. 804, page 1421; 21. C. J. 1113.

It is true that in cases where the husband is precluded from purchasing by some matter in pais, which makes it fraudulent in him to do so, the law will impute knowledge of the facts to the wife, and estop her also, so as to prevent an evasion of a moral duty on his part by the easy device of a purchase by the wife. This is upon the ground that the law will presume the wife to have knowledge of the facts through the husband, since, owing to the marital relation, it is impossible to make proof of such knowledge.

Cameron v. Lewis, 56 Miss. 601; Robinson v. Lewis, 68 Miss. 69; Hamblet v. Harrison, 80 Miss. 118; Beaman v. Beaman, 90 Miss. 762; Wade v. Barlow, 99 Miss. 33.

OPINION

Smith, C. J.

The appellants...