Johnson v. Federal Land Bank of New Orleans
| Decision Date | 04 May 1936 |
| Docket Number | 32052 |
| Court | Mississippi Supreme Court |
| Parties | JOHNSON et al. v. FEDERAL LAND BANK OF NEW ORLEANS et al |
Suggestion Of Error Overruled July 3, 1936.
APPEAL from chancery court of Yazoo county HON. M. B. MONTGOMERY Chancellor.
Suit by Lucy Johnson and others against the Federal Land Bank of New Orleans and others, wherein the bank filed a cross-bill. From an adverse decree, plaintiffs appeal. Reversed in part affirmed in part and remanded.
Affirmed in part; reversed in part and remanded.
Ruth Campbell and Campbell & Campbell, of Yazoo City, for appellants.
The foreclosure sale is a nullity, the trustee's deed void, and the Federal Land Bank of New Orleans is not the owner of the lands and not entitled to possession of same.
Section 2772, Code of 1906, chapter 180, Laws of 1908; section 2167, Code of 1930 (sec. 2276, Hemingway's Code); chapter 248, Laws of 1934.
It is apparent from the face of the deed that there was a fatal variance in the date of the sale as published in the notice in the newspaper with that of the date of the sale as posted in the notice at the courthouse. The trustee failed to comply with the terms of the trust deed and the statute since he did not give the notice required thereunder and the sale is therefore an absolute nullity and the deed void, and the Federal Land Bank derived no title to the lands by reason of its alleged purchase at said void sale and under the trustee's deed to it, and no right of possession to the lands.
The terms of the trust deed and of the statutes clearly require that one notice of the sale be posted at the courthouse of the county where the land is situated.
Fauntleroy v. Mardis, 85 So. 96, 123 Miss. 353; Jones v. Frank, 85 So. 310, 123 Miss. 280; Wilzyinski v. Watson, 69 So. 1010.
A notice as required under the statutes and the terms of the trust deed means a notice that correctly gives the time, terms and place of sale and any notice that fails to give the time of the sale is no notice at all, and a notice that sets forth an erroneous date is perhaps worse than no notice since it tends to mislead any prospective bidders and prevent their attendance at the sale.
41 C. J. 954; Tyler v. Herring, 67 Miss. 169, 19 Am. St. Rep. 288, 6 So. 840.
Our decisions are numerous that regardless of the recitations or lack of recitations and recitals by the trustee in his deed, evidence may be introduced to show how the advertisements were made and what acts in pals were really performed by the trustee in making his advertisement and sale, and where this evidence is produced, whether by the party contending the sale void or by the party contending the sale valid, the court looks to this evidence to determine as to whether the sale was properly made or not and the presumption no longer prevails.
Tyler v. Herring, 67 Miss. 169, 19 Am. St. Rep. 263, 6 So. 840; McSwain v. Young, 72 So. 129; Wilzyinski v. Watson, 69 So. 1009, 110 Miss. 86; Planters Co. v. Braxton, 120 Miss. 470; 41 C. J., pages 994 and 995, sec. 1449; Smith v. Kirkland, 89 Miss. 647, 42 So. 285.
It was not necessary in the case at bar for the defendants, appellants here, to offer any proof as to the invalidity of the sale since the trustee, by his actual exhibits attached to his deed, and the recitations in the deed and his oath and affidavit to the Exhibit "B" produced all the evidence that any court should need that the sale was a nullity and the deed void. The cross- complainants, appellees here. made this deed and its exhibits, as exhibits to their cross-bills, and further than that actually introduced into the record in this cause, by the chancery clerk, the record of this deed as it appeared in his office.
Jones v. Frank, 123 Miss. 280.
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, 85 Miss. 278.
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.
Jones v. Frank, 123 Miss. 280.
If the notices of sale are not made and published according to the power, the sale is absolutely void and not merely voidable, and no title passes to the purchaser.
Enochs v. Miller, 60 Miss. 19; Allen v. Alliance Trust Co., 84 Miss. 319; McGaughn v. Young, 85 Miss. 277; Planters Mercantile Co. v. Braxton, 120 Miss. 470.
Appellees contend that the objections to the validity of the foreclosure proceeding and the trustee's deed are raised for the first time by the appellants on the appeal of this cause, that the question as to the validity of such proceedings was never before the court below and for that reason ought not to be considered here, claiming that to do so would violate the theory of the case, and that this case is not one that comes within the exceptions to the general rule that the theory of the case is not to be disturbed on appeal. Appellee's contention regarding the violation of the theory of the case as tried in the court below is that the parties to this proceeding so conducted the cause that they waived their right to here complain of the defective foreclosure. An admission, even if made, which we most affirmatively say was not, that the trustee's sale and deed were valid would not render such a sale and deed valid where the statutory requirements were not complied with by the trustee as in the instant case. Our courts have expressly held that parties cannot even expressly contract for a shorter period of time or a lesser degree of notice than that required by the statute in the foreclosure of a trust deed. That to advertise for a shorter period of time or give a lesser degree of notice than that required by statute renders the entire proceedings void, regardless of the terms of the trust deed, the express contract of the parties. Can parties do that by waiver and admissions, which they cannot expressly do by written contract? We say not, that the objections here to the trustee's deed are not such as can be waived.
Wilczinski v. Watson, 110 Miss. 93, 69 So. 1009; Nash v. Phillips, 2 Miss. Dec. 628.
In the instant case the burden of proving the bank's right to title and possession of the lands was on the appellees and until they meet this burden it is not necessary and it was not necessary for the appellants to offer any proof of the invalidity of appellees' claims.
Clearly, in this case, the burden was upon the Federal Land Bank to show, in its suit to cancel clouds on its title and its "ejectment" suit against the Booker appellants, "the posting of a notice at the courthouse." We submit that it utterly failed to do so, and in addition proved by its own pleadings, exhibits and proof that the title and the right to the possession of said lands was vested in the Booker appellants.
Section 211, Griffith's Miss. Chancery Practice.
Appellees urge that the objection here raised to the foreclosure proceedings is one that could be obviated if opportunity to do so had been given. So far as the record shows, and that is what this court is confined to in a consideration of the rights of the parties, the instrument was void and foreclosure sale a nullity because the notice posted at the courthouse gave a different date than that advertised in the paper. Such an irregularity was not a compliance with the statute and rendered the entire proceedings void. The record shows nothing to even intimate that the fatal irregularity in the sale could have been corrected, and frankly, relying on the statements in the trustee's deed. the only evidence known to us and before this court, the irregularities are fatal and cannot be corrected by extrinsic evidence.
Griffith's Miss. Chancery Practice, page 790, sec. 678, and sec. 211; Gabbert v. Wallace, 66 Miss. 618, 5 So. 394.
When we consider that the entire decree in the lower court in the instant case is based on the void trustee's sale and deed, it is clear that a judgment of reversal should be entered here.
Pease & Dwyer Co. v. Somers Planting Co., 93 So. 673; Dulion v. Folkes, 120 So. 443; Griffith's Miss. Chancery Practice, pages 623-25, sec. 567.
Even under the contentions of appellees, the record evidence of the trustee's deed must be considered by the court, it was not objected to, in fact offered by appellees and Lucy Johnson appellant, and it is certainly apparent on its face without further comment to "have semblance of evidence for any purpose or in any manner whatsoever."
Walker v. Saunders, 1 Miss. Dec. 57; Cook v. Ligon, 54 Miss. 378.
If no objection is made to evidence at the time it is introduced objections to it will not be considered on appeal and will be considered as waived and it will be considered for what it is worth.
Skinner v. Collier, 4 Howard 396; Morris v. Henderson, 37 Miss. 492; Wesling v. Noonan, 31 Miss. 599; Neely v. Planters Bank, 4 S. & M. 113; Chew v. Read, 11 S. & M. 182; Perkins v. Sturdivant, 4 So. 555; Parkhurst v. McGraw, 24 Miss. 136; 1 R. C. L. 496.
We submit that evidence of the invalidity of the trustee's deed was properly before the court below and is now properly before this court under the proof and pleadings in this case and must be so considered by this court.
Wise & Bridgforth, of Yazoo City, for appellees.
The appellants and appellee so conducted the hearing and so introduced evidence and objected to the introduction thereof, as to make it clear that all parties to the litigation continued to proceed at the trial on the theory of a valid foreclosure of appellee's deed of trust.
The respective duties of the litigants were as imperative at the hearing as in the...
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