Jones v. Salmon

• Decision Date: 03 April 1922
• Docket Number: 22176
• Citation: 91 So. 199,128 Miss. 508
• Court: Mississippi Supreme Court
• Parties: JONES v. SALMON et al

91 So. 199

128 Miss. 508

JONES v. SALMON et al

No. 22176

Supreme Court of Mississippi

April 3, 1922

1 MORTGAGES. Power to appoint substituted trustee is strictly construed.

A power given in a trust deed on land wherein a trustee is appointed with authority, on condition broken, of foreclosure by sale in pais, with the right in the cestui que trust to substitute another trustee upon the happening of certain conditions named in such trust deed, is to be strictly construed against the right of substitution by such cestui que trust, and the appointment of a new trustee under such power cannot be made unless the terms of the power clearly and distinctly authorize the appointment in the particular event therein named.

2 MORTGAGES. Beneficiary in trust deed may appoint new trustee where original trustee is dead.

Applying such rule of strict construction to a trust deed which names a trustee, and provides that upon condition broken, if said trustee so named "should fail or refuse to act as such when thereto requested," then the cestui que trust may appoint another trustee, and at the time of condition broken such trustee so named in the deed of trust is dead, such cestui que trust has a right to appoint another trustee because under the terms of said power the trustee named therein has failed, and the cestui que trust is not required to do the vain thing of requesting him to act as a condition precedent to the appointment of another trustee.

3. MORTGAGES. Advertising longer than statute requires does not render sale void.

Under section 2772, Code 1906 (section 2276, Hemingway's Code), providing that lands sold under mortgages and deeds of trust by trustees shall be advertised for three consecutive weeks preceding such sale, a sale advertised for four consecutive weeks or longer, preceding the sale, is not unauthorized, and therefore a sale so advertised is legal.

4. MORTGAGES. Amendment by trustee in deed of trust of advertisement and publishing longer than required by statute held not to render advertisement illegal.

Where the trustee in such trust deed advertises the land in two issues of a weekly newspaper, and then discovers that a sale thereunder cannot be legally made because such sale will not be advertised three consecutive weeks before its date, and thereupon has such advertisement changed and a deferred date fixed for the sale, and after such change such sale is advertised for more than four consecutive weeks next before it takes place, such advertisement and sale are not illegal, on the ground that such advertisement was calculated to confuse and mislead prospective bidders and others interested.

ETHRIDGE, J., and SMITH, C. J. dissenting.

HON. G. E. WILLIAMS, Chancellor.

APPEAL from chancery court of Tunica county, HON. G. E. WILLIAMS, Chancellor.

Suit by Israel Jones against T. E. Salmon and others. From decree of dismissal plaintiff appeals. Affirmed.

Affirmed.

Arthur C. Fant, for appellant.

There was no authority to appoint a substituted trustee under the terms of the deed of trust in the event the trustee named therein should die. The supreme court of Mississippi, in Sharpley v. Plant, 79 Miss. 190; Perry on Trusts, sec. 288; Learned v. Matthews, 40 Miss. 220; Brame & A. Dig. 820, 18 Am. & Eng. Enc. L. 837, and notes; Sharpley v. Plant, 79 Miss. 190; Clark v. Wilson, 53 Miss. 127; Hill on Trustees, 189; Guion v. Pickett, 42 Miss. 77; Clark v. Wilson, 53 Miss. 127; Guion v. Pickett, 42 Miss. 77; Guion v. Pickett, 42 Miss. 77; Perry on Trusts (6 Ed.), sec. 288.

The rule is stated in Cyc. to be as follows: "Since the power of appointment can only be exercised upon the happening of the contingency expressed in the grant the instrument granting the power should express plainly the case in which a new trustee may be appointed and should embrace every event that can render such appointment necessary, such as the neglect or refusal of the trustee to act, his death, absence from the country, wish to retire from office, or incapacity or unfitness to discharge his duties." 39 Cyc. pp. 273-274.

The case of Guion v. Pickett, 42 Miss. 77, has been cited with approval as follows: McNeil v. Lee, 79 Miss. 459; Clark v. Wilson, 53 Miss. 128; Ready v. Hamm, 46 Miss. 422, 39 Cyc., 274; Perry on Trusts, secs. 290 and 473; Loring's A Trustee's Handbook, p. 8. The sale was not advertised as required by the law of Mississippi and the deed of trust. The law of Mississippi provides 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. 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. 1 Hemingway's Ann. Miss. Code (1917 Ed.), sec. 2276.

The supreme court of Mississippi, in the case of Planters Mercantile Co. v. Braxton, has held as follows: "In disposing of the present appeal, or special inquiry is to ascertain the meaning of the phrase, for three consecutive weeks preceding such sale, as employed in the statute under review. We conclude unhesitatingly, that the language of the statute requires publication to be made for the three weeks next before the day of sale, or immediately preceding the day of sale. The purpose of this mandatory provision of law is obvious. It is designed to give notice of the approaching sale to the owner of, and other parties interested in, the lands to be sold, as also to give notice to prospective bidders. If a longer period of time than one week may elapse from the date of the last advertisement, and the day of sale, it logically follows that several weeks or several months might elapse and the day of sale might be fixed so far in the future that parties in interest might overlook the sale altogether and grave injustice be done. The purpose of the statute is to give wide-spread notice to the public generally, and to have this notice fresh in the minds of parties probably interested. This interpretation of the statute is justified by the literal meaning of the language employed, and tends, we think, to the public good. It enables the statute to accomplish the very purpose for which it is enacted. Planters Mercantile Co. v. Braxton, 120 Miss. 470.

See, also, the case of Maris v. Lindsay (Miss.), 87 So. 12.

Montgomery & Dulaney, for appellees.

We will argue separately the two propositions discussed by counsel for appellant in his brief.

I.

WAS J. D. MAGRUDER PROPERLY SUBSTITUTED AS TRUSTEE?

This whole question depends upon the interpretation of the language employed in the deed of trust, to-wit: "If from any cause R. K. Mims, the trustee above named, should fail or refuse to act as such when thereto requested, that then in that event, etc."

It is under this power that the substituted trustee is appointed, the trustee, R. K. Mims, having died before maturity of the debt; and the counsel argues in his brief for appellant that because the deed of trust does not say that the power of substitution shall be granted in the event of the death of R. K. Mims that therefore no such power existed, and the trust deed could only be foreclosed in a court of chancery. In other words, the death of that trustee took away the power of sale by a trustee at all.

No question is raised as to the validity of the original deed of trust, and counsel does not argue his allegation that this sale was for less than the value of the land, which of course, would not be material to the issue, and as said in Jacobs v. McClintock, by the supreme court of Texas, speaking through Justice BONNER: "As equity looks to the substance and not to the shadow, the defective execution of a valid power will be sustained in favor of creditors and purchasers for value, and others, not mere volunteers, when the intention of the parties clearly appears and has been substantially carried out, and when the defect complained of is a technical one, and which it may reasonably be presumed was not occasioned through fraud and did not result in legal injury to the parties interested." Citing: 1 Story's Eq. Jur., 94-97; Id., 170-174; Washb. on R. P., 335, sec. 8.

This case of Jacobs v. McClintock, is a strong case in our favor though in that case the provision was that if Grainger should be unwilling or unable to act in carrying out the trust, then for the appointment by him of a substitute trustee. And in the event Grainger should refuse to appoint a substitute trustee, then it should be lawful for the holder of the note due and unpaid to appoint said substitute trustee.

The testimony shows that prior to the sale under the trust deed, Grainger, the original trustee, died without having appointed a substitute, and the beneficiary appointed him. The supreme court of Texas say in that case, in answer to the objection to this appointment, that the trustee had not been requested, and had not indicated before his death that he was unwilling or unable to act.

In our opinion the stipulation in the deed of trust in regard to the appointment of a substitute trustee comes within that class known as directory powers, in which some degree of latitude is allowed, rather than that class known as strict powers, to be executed only under the circumstances prescribed in the instrument. Citing: Perry on Trusts, 490. Further quoting "The death of Grainger rendered him wholly unable to act as trustee or to appoint a...