McCoy v. McRae

• Decision Date: 08 November 1948
• Docket Number: 36775.
• Citation: 37 So.2d 353,204 Miss. 309
• Court: Mississippi Supreme Court
• Parties: McCOY v. McRAE.

37 So.2d 353

204 Miss. 309

McCOY v. McRAE.

No. 36775.

Supreme Court of Mississippi

November 8, 1948

L. J. Broadway, of Meridian, for appellant.

W. F. Latham, of Quitman, for appellee.

McGEHEE, Justice.

This summary proceeding was instituted by the appellee, as plaintiff, Dr. B. J. McRae, against the appellant, as defendant, R. G. McCoy, before a Justice of the Peace, under Section 948, Code of 1942, to obtain possession of a certain residential house and lot in the Town of Quitman Mississippi, upon the theory that the relation of landlord and tenant existed between the parties in that the defendant continued in possession of the property as a tenant at will or at sufferance after the plaintiff had become the purchaser thereof at a foreclosure sale under a deed of trust executed by the defendant and his wife in favor of the plaintiff. Whether such relation existed so as to entitle the plaintiff to possession after notice given to the defendant to vacate the premises is the sole issue to be determined in such a possessory action.

A default judgment was rendered by the Justice of the Peace upon an invalid service of process against the defendant and he appealed to the Circuit Court with supersedeas, where a trial was had de novo and where the Circuit Court had jurisdiction of both the subject-matter and the parties although the Justice of the Peace had jurisdiction only of the subject-matter when the default judgment was rendered.

In the Circuit Court the case was heard before the trial judge without a jury and with the result that possession of the property was again awarded to the plaintiff, and we do not think that the position of the defendant is well taken on this appeal when he contends that the Circuit Court was without jurisdiction by reason of the fact that the service of process on the defendant in the Justice of the Peace Court was invalid.

In the Circuit Court the defendant filed a plea (1) to the effect that the note of the defendant and his wife as secured by the deed of trust in favor of the plaintiff and which was foreclosed, bore interest at a greater rate than 20% per annum, resulting in a forfeiture of both principal and interest so as to leave no valid indebtedness due and owing to the payee in the note at the time he foreclosed such deed of trust, and (2) that the foreclosure of the deed of trust was also void because it provided for the sale to be advertised for three weeks in the local newspaper and also by posting a copy of such notice on the bulletin board at the Court House for said time, and that the trustee's deed recited only that the property had been advertised by publishing the notice in the newspaper, and failed to disclose that a notice of the sale had been posted for three weeks on the bulletin board at the Court House.

The defendant did not plead that no relation of landlord and tenant had ever existed by reason of the fact that he did not enter into possession under any agreement with the landlord or that he had not agreed either expressly or impliedly to hold possession as a tenant at will or at sufferance during the short interval between the foreclosure and the commencement of this summary proceeding under any obligation to pay rent, but he raised this question by his proof and other testimony at the hearing before the trial judge and argues such contention here. By his pleas, he alleged the non-existence of the relation of landlord and tenant solely on the ground of usury and the alleged invalidity of the foreclosure sale.

Since the trustee recited in his conveyance to the plaintiff as purchaser at the foreclosure sale the manner in which he advertised the property for sale, the maxim of expressio unius est exclusio alterius applies. Jones v. Frank et al., 123 Miss. 280, 85 So. 310, 311. In that case the Court held that such a recital overcame the prima facie presumption that the trustee performed all of the acts in pais required of him, and that in order for the trustee's deed 'to have been admissible in testimony the burden of proof further rested upon the plaintiff to prove that a notice of the sale was posted at the court-house door * * *.' The defendant therefore objected to the introduction of such trustee's deed in the instant case.

In an effort to prove aliunde the recitals of the trustee's deed that the notice was actually posted on the bulletin at the Court House door for and during the time within which the sale was advertised in the newspaper, the plaintiff was asked the following question: 'Did you see this notice of this trustee sale published and posted on the bulletin board at the Court House?' And he answered, 'I did.' This was all the testimony offered by the plaintiff to meet the burden resting upon him to show that the notice had been posted for the time required by the terms of the deed of trust and by law, the trustee being present at the trial and not having testified. Therefore, under the holding in the case of Jones v. Frank, supra, the plaintiff cannot avail himself of the prima facie presumption that the notice was posted by the trustee from, at, or about the beginning of the publication in the newspaper, since such presumption was overcome by the recitals in the trustee's deed as to how the property was advertised for sale.

Therefore, the plaintiff's proof consisting of the introduction of the note, deed of trust, and the trustee's deed, together with the foregoing question and answer was insufficient to show that he was entitled to the possession of the property involved, since the makers of the note and deed of trust were entitled to remain in possession until there had been a valid foreclosure thereof.

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