Jones v. Frank

• Decision Date: 12 July 1920
• Docket Number: 21194
• Citation: 85 So. 310,123 Miss. 280
• Court: Mississippi Supreme Court
• Parties: JONES ET AL. v. FRANK ET AL

85 So. 310

123 Miss. 280

JONES ET AL. v. FRANK ET AL

No. 21194

Supreme Court of Mississippi

July 12, 1920

March 1920

EVIDENCE. Recitals in trustee's deed; burden on purchaser at foreclosure must show in ejectment posting of notice of sale.'

Where a deed of trust is foreclosed and the trustee's deed recited with particularity the authority vested in the trustee, the default in the payment of the indebtedness, the instruction to sell, and that the sale was made after a newspaper advertisement for the required time but fails to recite that a notice was posted at the courthouse door as required by section 2772, Code of 1906 the presumption that all essential conditions were complied with in making the sale, especially as to the required advertisement, is rebutted by these recitals of the deed of trust, and the burden of proof is upon the plaintiff to show that a notice of the sale for the required time was posted at the courthouse door.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, HON. W. A. ALCORN, JR. Judge.

Ejectment by Levi N. Frank against Medora Jones, and others. Judgment for plaintiff on a directed verdict, and certain defendants, including the named defendant, appeal. Reversed and remanded.

Reversed and remanded.

Shands, Jackson & Causey, for appellants.

We submit that the fundamental error committed by the trial court upon the trial of this case was when it permitted the appellee, over the objection of appellants, to introduce as evidence the trustee's deed. We submit that the trustee's deed conveys no title whatever and was incompetent as evidence. We call the court's attention now to the provisions in the deed of trust, the contract of the parties, providing for foreclosure in the event of non-payment of the money secured therein.

The deed of trust provides that the land shall be sold "at public outcry to the highest bidder for cash at any public place in the town of Shelby, state of Mississippi, after first advertising according to section 2772 of the Mississippi Code of 1906, and the amendments thereto." How does the trustee say that he carries out the terms of this deed of trust? We see the only reference is to how the provisions of the deed of trust were carried in the following language in the trustee's deed, "after having first advertised three weeks prior thereto in the 'Cleveland Enterprise,' a newspaper published in and having a general circulation in Bolivar County, etc."

Section 2772 is a general embodiment of remedial legislation, reflecting the wisdom of our legislature enacted to remedy certain evils that existed in this state prior to the enactment of the above section as to foreclosures of deeds of trust. Reviewing briefly the history of our legislation with reference to the foreclosure of deeds of trust, we find under sections 2443, 2486 and 2484 of the Code of 1892, the only statutory methods of foreclosing deeds of trust on lands existing prior to the enactment of the various laws which make up section 2772 of the Code of 1906.

The above section 2443 of the Code of 1892, provides a rule for selling lands in parcels of one hundred and sixty acres, when the lands were described by Governmental subdivisions. Section 2443 fixed a rule that in the absence of contract, by parties, as to the place and terms of sale and mode of advertising, a sale may be made after condition is broken, for cash upon the notice and at such time and place as it required for sheriff's sales of like property. Sections 3484 and 3486, provided that sheriff's sales of land shall be made at the courthouse of the county.

These sections do not state what county, and the lands may be sold on the first Monday of every month, or on the first Monday, or Tuesday of the term of the circuit court of the county (no county is mentioned), and shall be advertised in a newspaper published in the county once in each week for three consecutive weeks.

No requirements appear that notice shall be posted at the county courthouse in the county where the land is situated, or where any of the grantors reside.

We next find the legislature remedying an evil, that had grown up in the state, by the enactment of chapter 103 of Laws 1896, which provided that the lands must be sold in the county in which the land is located or in the county of the residence of one of the grantors; or if the lands happen to be situated in two or more counties, the parties could contract for the sale of the whole tract in any of the counties in which any part of the land lies.

The next enactment by our legislature was section 2772 of the Code of 1906, and for purposes of ready reference we quote the entire section: "2772 (2443). How lands are sold under mortgages and deeds in trust (Laws 1896, ch. 103). All lands comprising a single tract, and wholly described by the subdivisions of the governmental surveys, sold under mortgages and deeds of trust hereafter executed, shall be sold in the manner provided by section 111 of the constitution for the sale of lands in pursuance of a decree of court or under execution. All lands sold at public outcry under deeds of trust hereafter executed, or other contracts hereafter made, shall be sold in the county in which the land is located or in the county of the residence of the grantor, or one of the grantors in the trust deed, provided that where the land is situated in two or more counties, the parties may contract for a sale of the whole in any of the counties in which any part of the land lies. Sale of said lands shall be advertised for three consecutive weeks preceding such sale in a newspaper published in the county, or if none such 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. No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. Any 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 years' statute of adverse possession."

We now see after a review of the history of our foreclosure statutes, for the first time our legislature has passed a mandatory statute providing, among other things, the following requirements with reference to notice, "and by posting one notice at the county courthouse of the county where the land is situated for said time. The statute further provides that: "No sale of lands under the deed of trust shall be valid unless such sale shall have been advertised as herein provided regardless of any contract to the contrary." Section 2772 is mandatory and a trustee who does not carry out the provisions of the statute does not convey any title.

Our court in Wilzyinski v. Watson, 69 So. 1010, very aptly gives the reasons for enacting section 2772 of the Code of 1906, in the following language: "The statute was evidently enacted in the interest of debtors and for the security of land title 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 of foreclosure trust deeds on valuable tracts of land and the homes of humble debtors. The statute designed, among other things, to give due publicity to sales under deeds of trust by a reasonable notice of sale, the posting of one notice at the courthouse door of the county where the land is situated, and publication in a newspaper of that county, wise provision calculated not only to give due notice to the owner of the land but also to prospective bidders." Planters Mercantile Company v. Braxton, et al., 82 So. 324.

The trustee is charged with the moral and legal duty to protect the interest of the beneficiary and the mortgagor. The supreme court of the United States in the case of Shilliber v. Robinson, 24 L.Ed. 967, says: "A foreclosure sale by a trustee, without the requisite notice is a mere nullity, disturbing no right and conferring none."

Our court in the case of Enochs v. Miller, 60 Miss. 19, held that a trustee must comply with the prescribed terms and conditions with reference to the mode, manner and terms of foreclosing under a deed of trust, and any disregard of them in any important respect will vitiate the sale. Shea v. Ballard, et al., 56 S.E. 472.

The court in the above case cited a former decision of the supreme court of West Virginia styled. "Atkinson v. Jefferson College," 46 S.E. 253. A mandatory provision in a statute is one which must be observed. This statute does not leave the performing of its provisions optional with the trustee. The statute says: "No sale shall be valid unless such sale shall have been advertised as herein provided. "We must conclude then that the statute is mandatory, and that any violation of its provision, with reference to the posting of notice, renders the sale void. Such a sale by a trustee "disturbs no right and confers none."

The court erred in admitting this trustee's deed as evidence of any title in McDonald, because the deed on its face shows that only notice was published in a newspaper. No notice is shown from the recitals in the deed to have been posted, at the county courthouse of Bolivar county.

In the case at bar, the trustee had two separate and distinct methods of advertising the property for sale; one by advertising in a newspaper for three weeks next preceding the day of sale; the other by posting a notice of sale at the courthouse in the county where the lands are situated.

His deed expressly says that he did advertise in the newspaper. His language in drafting his deed shows conclusively that he...