King v. Jones
| Decision Date | 26 January 1920 |
| Docket Number | 20933 |
| Court | Mississippi Supreme Court |
| Parties | KING v. JONES |
October 1919
APPEAL from the circuit court of Holmes county, HON. J. B. GUTHRIE Special Judge.
Action by James King against W. E. Jones. Judgment for defendant and plaintiff appeals.
The facts are fully stated in the opinion of the court.
Judgment affirmed.
Wise & Bridgeforth, for appellants.
Was the substitution of G. C. Reid, as trustee in the deed of trust above referred to, valid and in accordance with law, so that he could convey to the grantee at the sale under the deed of trust a good title to the property involved? If this question is answered in the affirmative then the decision of the lower court must be affirmed; if in the negative, then it must be reversed. The contention of the appellant that the substitution of Mr. Reid, as substituted trustee in this deed of trust, is invalid and ineffectual; that the sale made by Mr. Reid, as substituted trustee is illegal and void and that no title passed to the grantee at the sale, therefore, the decision of this one question depends upon the interpretation given to section 2773 of the Code of 1906 (Hemingway's Code, section 2277). which section first appeared in a slightly different form in our laws as chapter 96 of the Laws of 1896, For the sake of convenience, we wish to copy the whole section into this brief, and request the indulgence of the court in so doing:
By the unquestioned interpretation of this statute, the substitution of a trustee, where not "of record," illegal and ineffectual; and sales made by a so-called substituted trustee, whose substitution is not "of record" are null and void and do not convey the interest of the grantors. White v. Jenkins, 79 Miss. 57, 28 So. 570; Hyde v. Hoffman (Miss.), 31 So. 415; Shipp v. New South Building & Loan Assn.; 81 Miss. 17, 36 So. 285; Folk v. Dale, 93 Miss. 663, 47 So. 386; Provine v. Thornton, 92 Miss. 395, 46 So. 950. We wish to establish this unequivocal and undebatable interpretation of this statute, as the major premise in our argument, and have burdened the court with the citation of the five best cases sustaining it; and in all subsequent portions of the brief, we will take the proposition as demonstrated without the citation of further authorities. No unrecorded substitution being valid, and all sales made by a substituted trustee, whose substitution does not appear of record, being void, it only remains for the appellant to show that the appointment of the substituted trustee did not appear of record in the office of the chancery clerk of Holmes county, in order to answer in the negative the sole question involved in this case, and thus to make plain that a reversal of the lower court is the proper judgment of the supreme court.
After carefully reading the statute, it will be seen that the first complete sentence in the section lays down a rule of law: ("Sales of land made under deeds of trust by substituted trustees shall not convey the interest of the grantor or grantors therein but shall be absolutely null and void, both at law and in equity, unless the substitution shall appear of record in the office of the chancery clerk of the county where the land is situated . . .) and the regular method of complying with the requirements of that rule of law: (". . . and unless it shall so appear by being actually spread at large upon record before the first advertisement or notice of sale shall have been posted or published; the filing or lodging with the clerk not being sufficient.") The second, or last complete sentence in the section merely provides an additional method of complying with the requirements of the rule of law laid down in the first part of the first sentence: "Such substitution, however, may so appear by a separate instrument recorded as above set out in all respects, or a copy of such substitution may be recorded as above set out.") and operates so as to give the beneficiary in the trust deed the option of choosing between two methods of doing a thing the doing of which thing the statute makes obligatory.
The method of recording a substitution provided in the second sentence of the section as shown above makes the act of recording the substitution equivalent to the recording of a separate instrument, as a deed, for instance (". . . a separate instrument recorded as above set out in all respects" . . .), and requiring the acknowledgment of the grantor or maker, the beneficiary of the trust deed in this particular instance. (See section 2793 of the Code of 1906, Hemingway's Code, section 2294),--all which is quite a formal and solemn procedure; but the use to us of this "second method" in this particular case is not direct, but only to furnish us the basis of an argument by analogy, for the substitution made in this case but not recorded, was only by notation without pretense of a separate instrument. As far as this phase of the case is concerned, the situation is much the same as in the case of Provine v. Thornton, 92 Miss. 395, 45 So. 950, where (quoting 46 So. 951)," . . . There was certainly no substitution by a separated instrument, recorded as other recordable instruments, because the paper of substitution was not acknowledged, so as to be recordable, and it was not pretended to be recorded as a separate instrument." Under this second sentence will also be found a clause offering the alternative recording as a separate instrument, at the maker's pleasure, not the original paper carrying the substitution, but a copy of the same: ("or a copy of such substitution may be recorded as above set out,"--that is, when the copy of the separate instrument is acknowledged it may then be recorded.) As we understand this second sentence, it provides a formal means of recording a substitution of a trustee, as all other separate instruments are recorded.
We now turn to the normal method of recording a substitution of a trustee, as provided in the first sentence of the section, so that the acts of the trustee may have force and efficiency; applying the legal method to the careless action of the beneficiary of the trust deed in the instant case, the purpose of the beneficiary, Mr. Perry was to so proceed that the substitution should appear of record in the office of the chancery clerk. It is important to keep this in mind that the requirement of a statute is, putting the matter generally again, that the substitution shall appear of record, else the substituted trustee's acts are invalid. Before turning directly to the statutory acts necessary to make the substitution appear of record, would it not be well to see what the legal meaning of the appearing of record is: See where the legal goal of all acts we must perform in making the substitution appear of record is situated. In other words would it not be well to see just what appearing of record is? Then we would have a clear guide to lead us in ascertaining the particular points in the statutory way leading to the goal.
First what is a "record?" A record is "a written memorial made by a public officer authorized by law to perform that function, and intended to serve as evidence of something written, said or done." Bouvier's Law Directory (14 Ed.): "To constitute a valid record it (i e., the filing of an instrument) must be made by an officer having the authority to do so, and if made by a person having no authority whatever it is void." 34 Cyc., 589-590: "Recording means the copying of the instrument to be recorded into the public records in a book kept for that purpose, by or under the superintendence of the officer therefor." 23 Ruling Case Law, 1822, par. 38. "The admission to record" consists not only in bringing the deed or writing to the clerk, or lodging it with him to be recorded, but in the indorsement by the clerk upon the deed or writing, when delivered to him, of an order directing it to be recorded. Such admission of the deed or writing to record has the same effect as if the writing were actually spread in extenso upon the deed book." Minor, Real Property, page 1565, section 1393: "The term recorded as used herein signified a written account, memorial, or memorandum of some act, speech, transaction, or instrument made by a public officer authorized to perform that function,...
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