Kelso v. Robinson

• Decision Date: 22 April 1935
• Docket Number: 31644
• Citation: 161 So. 135,172 Miss. 828
• Court: Mississippi Supreme Court
• Parties: KELSO et al. v. ROBINSON

161 So. 135

172 Miss. 828

KELSO et al. v. ROBINSON

No. 31644

Supreme Court of Mississippi

April 22, 1935

Division B

Suggestion Of Error Overruled June 10, 1935.

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

Bill by Augustus Robinson, Jr., against F. B. Kelso, trustee, and the Metropolitan Life Insurance Company, in which the Insurance Company answered, making its answer a cross-bill. From a decree sustaining the bill, defendants appeal. Reversed, and bill dismissed.

Reversed and bill dismissed.

H. C. Mounger, of Greenwood, for appellants.

If there were any defect in the notice, the complainant by his conduct and consent waived it. He had been advised the sale would take place, had consented to it, had given the Metropolitan Life Insurance Company notice that he could not go on with his loan or work the place, and made arrangements to rent a part of it for the next year.

Dunton v. Sharpe, 70 Miss. 850, 12 So. 800; Smith v. Walsh, 63 Miss. 584, 590; Staton v. Bryant, 55 Miss. 261, 272.

It may be stated as a general rule that if a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act.

XI Am. & Eng. Ency. (2 Ed.), pages 428 and 430; 10 R. C. L., Estoppel, page 759; 28 Am. & Eng. Ency. of Law (2 Ed.), page 809; Georgia Pacific Ry. Co. v. Strickland, 80 Ga. 776, 12 Am. St. Rep. 282, 284; Kelly v. Skates, 117 Miss. 886, 78 So. 945; Chandler v. Peters, 44 S.W. 867; Cooley's Const. Lims. (7 Ed.) 250; Brown v. British American Mort. Co., 86, Miss. 388, 38 So. 312; Rawlings v. Anderson, 149 Miss. 632, 115 So. 714, 716.

The court was in error in setting aside the sale, giving any relief to the complainant, and in decreeing possession of the land to Robinson.

The complainant nowhere in his bill proposes to pay or makes a tender of any amount due the Metropolitan Life Insurance Company. He should have done this before he was entitled to any relief.

Pounds v. Clark, 70 Miss. 263; Cook v. Reynolds, 58 Miss. 243; Mortgage Co. v. Jefferson, 69 Miss. 770; Walten v. Austen, 49 Miss. 569; Chapter 247, Acts of 1934.

Sylvanus W. Polk, of Memphis, Tenn., for appellants.

It is not necessary to include the name of a subsequent grantee in the trustee's notice of sale unless the subsequent grantee clearly and unequivocally assumes the debt secured by the trust deed, and the holder thereof had notice of, ratified and accepted the assumption.

Wilkinson v. Federal Land Bank, 168 Miss. 646, 150 So. 218, 151 So. 761; Castleman v. Canal Bank & Trust Co., 156 So. 648; Gilliam v. McLemore, 141 Miss. 253, 106. So. 99; Hodges v. Southern Bldg. & Loan Assn., 166 Miss. 677, 148 So. 223.

The omission to insert a clause in a deed that a grantee assumes to pay an indebtedness secured by a trust deed on the property conveyed is strong evidence that the parties did not intend that he should be liable.

Hodges v. Southern Bldg. & Loan Assn., 166 Miss. 677, 148 So. 223; Tallotson v. Boyd, 6 N.Y.S. 516.

The assumption must be clear and unequivocal, and until the holder of the debt has notice of the assumption, approves, ratifies and accepts said assumption, there are no reciprocal rights and obligations between the subsequent grantee and mortgagee; and the subsequent grantee by agreement with his grantor can relieve himself of the obligations he has assumed without the consent of the mortgagee.

Gilliam v. McLemore, 141 Miss. 253, 106 So. 99; Hodges v. Southern Bldg. & Loan Assn., 166 Miss. 677, 148 So. 223.

Arthar Bruce, of Greenwood, for appellants.

The trustee's notice must include the name of the grantee only if he assumed the debt.

Wilkinson v. Federal Land Bank of New Orleans, 168 Miss. 646, 150 So. 218, 51 So. 761.

In Wilkinson case, Ward not only assumed the indebtedness, but he reassumed it and agreed to carry out all the conditions, etc. The assumption "was expressly and plainly set forth in the conveyance." Not only that, but both the grantor and grantee joined in a written application requesting that the grantee be admitted to membership and that Ward's stock be transferred to Paden, that Paden be recognized and accepted as the principal mortgagor, and the stock was transferred with the approval of appellee. Absolutely not one of these things happened in this case.

Castleman v. Canal Bank & Trust Co., 156 Miss. 648; Wilkinson v. Bank, 168 Miss. 646, 150 So. 218, 151 So. 761; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 82, 145 So. 726; National Surety Co. v. Miller, 155 Miss. 115, 131, 124 So. 251; 15 C. J. 941, sec. 332; 7 R. C. L. 1003, 1004; American Freehold Land & Mortgage Co. v. Jefferson, 69 Miss. 770, 781, 12 So. 464, 466, 30 Am. St. Rep. 587.

The court held the sale valid in the Castleman case, and we cannot see how the sale in the instant case differs from the Castleman case, and confidently believe that the opinion in the Castleman case is controlling in this case.

Tallotson v. Boyd, 6 N.Y.S. 516; Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 43 A.L.R. 79, 106; Hodges v. Southern Bldg. & Loan Assn., 166 Miss. 677, 148 So. 223.

We believe the notice of the substituted trustee's sale was properly made and posted in every way and complied with all the laws and decisions of this state with reference thereto. But, even if we admit that it was not proper in every respect, still Augustus Robinson, Jr., the only person who is complaining with regard thereto, knew of the sale, had notice of the sale, was present at the sale, and signed the original trustee's notice as one of the three witnesses to the sale, gave his consent to the sale, and thereby, waived any defect in the advertisement if, in fact, there were any defect therein.

Cooleys' Con. Lims. (7 Ed.) 250; Brown v. British American Mortgage Co., 86 Miss. 388, 38 So. 312; Rawlings v. Anderson, 149 Miss. 632, 115 So. 714, 716; Section 2431, Hemingway's Code of 1927; Section 2167, Code of 1930; Kelly v. Skates, 117 Miss. 886, 78 So. 945; Eagle Lbr. & Supply Co. v. DeWeese, 135 So. 490, 494; Dunton v. Sharpe, 70 Miss. 850, 12 So. 800; Guffey v. O'Reilly, 88 Mo. 418, 57 Am. Rep. 424; McDonnell v. De Soto Sav., etc., Assn., 175 Mo. 250, 75 S.W. 438, 97 A. S. R. 592, 609.

A tenant cannot dispute the fact that his landlord's title, under which he entered as lessee, was good when he entered.

Rhyne v. Guevara, 67 Miss. 139, 6 So. 736; Pino v. Dufour, 174 La. 227, 140 So. 31; McWhorter v. Stein, 39 So. 617; Peters v. Pilcher, 211. Ala. 548, 100 So. 902; Rogers v. Martin, 99 So. 551, 87 Fla. 204; Asher v. Rossi, Orleans No. 7636; 10 R. C. L., Estoppel, sec. 97, pages 782-783; Staton v. Bryant, 55 Miss. 261; Gentry v. Gamblin, 79 Miss. 437, 28 So. 809; Helm v. Yerger, 61 Miss. 44, 52.

It seems to be well established by a general rule, that if a man knowingly suffers another to expend money on land under an erroneous opinion of title, though he does it passively by looking on, without making known his claim, he shall not afterwards be permitted to exercise his legal right against that person.

11 Ency. of Law (2 Ed.) 431; Dickerson v. Colgrove, 100 U.S. 584, 25 L.Ed. 619, 621; Buckingham v. Smith, 10 Ohio 298; Bryan v. Ramirez, 8 Cal. 461, 68 Am. Dec. 340, 344; Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Kirk v. Hamilton, 12 Otto 68-79, 26 L.Ed. 79, 83; 10 R. C. L., Estoppel, sec. 76, page 579 and sec. 95, page 780; Hafter v. Strange, 65 Miss. 323, 3 So. 190, 7 A. S. R. 659; McDonnell v. DeSoto Sav., etc., Assn., 175 Mo. 250, 75 S.W. 438; 28 Ency. of Law (2 Ed.) 809; Georgia Pacific Ry. v. Strickland, 80 Ga. 776, 12 Am. St. Rep. 282, 284.

Before a borrower who has executed a deed to secure a debt can have affirmative equitable relief such as the setting aside of a sale by the creditor under exercise of a power contained in a security deed, and injunction against the creditor and persons claiming under him, to prevent interference with the debtor's possession of the property, such debtor must pay or tender the creditor the principal and interest due.

21 C. J. 172 et seq.; 10 R. C. L. 392, 141; Eaton's Equity, 67, 68; Liles v. Bank of Camden County, 151 Ga. 483, 107 S.E. 490; Brown v. Roughton, 155 Ga. 828, 118 S.E. 557; Farnell v. Brady, 159 Ga. 209, 125 S.E. 57; Biggers v. Home Bldg. & Loan Assn., 176 S.E. 38; Duncan v. Moore, 67 Miss. 136, 7 So. 221; Stewart v. Brooks, 62 Miss. 492; Newman v. Taylor, 69 Miss. 670, 13 So. 831; Walker-Durr Co. v. Mitchell, 97 Miss. 231, 52 So. 583; Alabama & V. Ry. v. Thomas, 86 Miss. 27, 38 So. 770.

A defendant, purchaser for value in good faith, can obtain relief for valuable, permanent, and not ornamental improvements in a suit at law and has no ground because thereof for a suit in equity.

Demourelle v. Piazza, 77 Miss. 434, 27 So. 623; Swalm v. Gill, 151 Miss. 630, 118 So. 446; Wilson v. Williams' Heirs, 52 Miss. 488; Gillum v. Case, 71 Miss. 848, 16 So. 236.

Allen & Allen and Moody & Johnson, all of Indianola, for appellee.

The foreclosure sale attempted to be made by F. B. Kelso, substituted trustee in this case, was absolutely void. The law looks with disfavor upon forfeitures and divestitures and will not recognize them under any circumstances until and unless he who has invoked their aid has complied strictly with the letter of the power and the law.

Section 2167, Code of 1930; Wilkinson v. Federal Land Bank of New Orleans, 151 So. 761, 763.

It may be shown, although not expressed in a deed that the grantee agreed as part of the consideration to pay...