Melchor v. Casey

• Decision Date: 27 May 1935
• Docket Number: 31724
• Citation: 173 Miss. 67,161 So. 692
• Court: Mississippi Supreme Court
• Parties: MELCHOR v. CASEY

161 So. 692

173 Miss. 67

MELCHOR v. CASEY

No. 31724

Supreme Court of Mississippi

May 27, 1935

Division A

1 EVIDENCE.

Where a deed has been executed by a trustee purporting to convey lands as trustee, presumption obtains that recitals of deed are true, that all essential conditions were complied with in making sale, and that trustee did those acts in pais which were conditions precedent to valid exercise of power of sale.

2 MORTGAGES.

Where trust deed provided that any deeds made by trustee acting thereunder should be prima facie evidence of truth of all recitals contained therein, burden was on one seeking to avoid sale under trust deed on ground of nonexistence of facts authorizing exercise of power of appointment to prove such lack of power.

3. MORTGAGES.

Proof of appointment of another trustee in a companion deed of trust involving same beneficiary, land, and trustee, which showed that trustee corporation was then in existence, held insufficient to show that trustee corporation had not been dissolved on or before appointment of substituted trustee in deed of trust on a date some three years later, so as to sustain burden upon owner of land seeking to avoid sale under trust deed to show that substitution of trustee was invalid.

4 MORTGAGES.

Trustee's deed held not void as to subsequent grantee because of failure to name such grantee in notice and advertisement of sale, where grantee did not assume mortgage debt and deed expressly excepted debt from warranty of the instrument (Code 1930, section 2167).

5. LANDLORD AND TENANT.

While tenant cannot dispute landlord's title at time lease was made, he may show that landlord's title has passed to another by operation of law, or that he has transferred title without reserving rent, or that title has been sold according to law, and, when title has vested in another, tenant is justified in attorning to new owner.

6. LANDLORD AND TENANT.

Where, after title to land leased by tenant passed to trustee under deed of trust on demand by it, tenant recognized trustee's title and paid rent to it, owner of land could not recover rent for such tract which accrued after she lost title thereto.

7. APPEAL AND ERROR.

Where title to sixty of sixty-three acres of land had passed by sale under trust deed, and owner's evidence showed that tenant offered five dollars per acre rental for remaining three acres, and total value of cotton to be delivered under original lease contract, if apportioned on per acre basis, showed substantially same amount, judgment would be rendered for fifteen dollars for owner without requiring a new trial.

8. APPEAL AND ERROR.

In action for rent, defendant held not entitled to complain of error of trial court in allowance of attorney's fees or a recording fee, where error in fixing amount due was in his favor.

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

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

Action by Mrs. Mollie E. Casey against John Melchor. Judgment for plaintiff, and defendant appeals. Reversed, and modified judgment entered.

Reversed, and modified judgment entered here.

Partee L. Denton, of Marks, for appellant.

It is the duty of a tenant to attom to the new owner when the title to the property has passed by transfer without reservation of rent or by operation of law.

Wolf v. Johnson, 30 Miss. 513; Bloodworth v. Stevens, 51 Miss. 475; O'Keefe v. McLemore, 125 Miss. 394, 87 So. 655; Rhyne v. Guevara, 67 Miss. 139, 6 So. 736.

The substitution of a trustee was valid and authorized by the deed of trust and the recitals of the appointment and substituted trustee's deed of the dissolution of the original trustee are presumed to be true.

Guion v. Pickett, 42 Miss. 77; McNeill v. Lee, 79 Miss. 455, 30 So. 821; Thompson v. Wynne, 127 Miss. 773, 90 So. 482; Graham v. Fitz, 53 Miss. 307; Enochs v. Miller, 60 Miss. 19; McCaughn v. Young, 85 Miss. 278; Smith v. Kirkland, 89 Miss. 647, 42 So. 285; Jones v. Frank, 123 Miss. 280, 85 So. 310; Burks v. Moody, 141 Miss. 370, 106 So.528.

In proceeding to foreclose a deed of trust, it is not necessary for the trustee to name in the notice of sale a subsequent vendee of the grantor who has not assumed responsibility for the debt secured by the deed of trust.

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

Grantor in a deed of trust may convey or assign in the deed of trust rents to become due on the land conveyed.

Whitehead v. Wooten, 43 Miss. 373; Brooks v. Kelly, 63 Miss. 616; Wilsford v. Johnson, 141 Miss. 739, 105 So. 736.

There exists no right to file an action at law prior to the maturity of the debt, and, if such an action is filed, the error will not be cured after verdict by the statute of jeofails.

Wiggle v. Thompson, 11 S. & M. 452; Winston v. Miller, 12 S. & M. 551.

Sylvanus W. Polk, of Memphis, Tennessee, for appellant.

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.

Wilkinson v. Pederal Land Bank, 168 Miss. 646, 150 So. 218, 151 So. 761; Castleman v. Canal Bank & Trust Co., 156 So. 648.

There are no reciprocal rights and obligations between mortgagee and a subsequent grantee until there is a clear and unequivocal assumption of the debt secured by the trust deed, and the assumption is approved, ratified, and accepted by the mortgagee.

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

Rent payable in cotton becomes absolute for the payment of money upon the failure to deliver the cotton on or before the date specified in the contract.

Hardeman v. Cowan, 18 Miss. 486.

A judgment cannot be sustained where a suit is commenced before the debt is due.

Wiggle v. Thompson, 11 S. & M. 452; Winston v. Miller, 12 S. & M. 550.

Where there is a definite and expressed agreement made between the mortgagor and mortgagee that the rentals from the land covered by the mortgage shall be pledged as additional security in the event of default in the payment of the debt secured by the mortgage, then the holder of the mortgage is entitled to demand the rents and receive them and apply said rents on the debts secured by said mortgage.

Wilsford v. Johnson, 141 Miss. 739.

P. H. Lowry, of Marks, for appellee.

Where the plaintiff shows by the declaration a due demand, he is entitled to judgment unless the defendant by some appropriate plea denies his right to judgment.

The question of maturity of the debt was never in issue, the only questions in issue being the non promise and undertaking as alleged in the declaration and the sale under the deed of trust, which the defendant specifically alleges, on the showing of merits, was his reason for not paying the rent.

Our court has repeatedly held that in order to have a substitution of a trustee two things must exist. First, the ground or cause for the substitution must exist as a fact. Second, the appointment must be properly made by the party authorized to make it.

Clark v. Wilson, 53 Miss. 119; 3 Miss. Digest, page 231; Guion v. Pickett, 42 Miss. 77; Bonner v. Lester, 61 Miss. 392; McNeil v. Lee, 79 Miss. 455.

The principles involved in this case are much nearer to the actual decision in the Wilkinson case than to that in the Castleman case.

I find a lack of authority on the question of who is a "mortgagor" within the meaning of our statute, but practically every one of the seven or eight cases relied upon by this court on the suggestion of errors in the Wilkinson case distinctly and definitely hold that the purchaser who takes the land subject to the mortgage debt is as truly a mortgagor as is the purchaser who assumes the mortgage debt.

I, therefore, conclude that while this case is not definitely settled by the Wilkinson case, the principles laid down by this court in the Wilkinson case, and the authorities cited and relied upon by the court, lead to only one conclusion, to-wit: that the purchaser of the mortgaged land for value, who takes it subject to the mortgage debt, is a mortgagor within the meaning of the statute requiring the name of the "mortgagor or mortgagors whose property is advertised for sale" to be inserted in advertisement.

Section 2167, Code of 1930.

Argued orally by Sylvanus W. Polk, for appellant.

OPINION

Cook, J.

This is an appeal from a judgment of the circuit court of Quitman county affirming a judgment of the county court. The declaration filed in the county court was in three counts. The first count sought to recover from the appellant the value of five bales of cotton, alleged to be due as rent for the year 1933, under a lease contract covering sixty-three acres of land; the second count sought a recovery of one hundred fifteen dollars for an alleged shortage in the weight and grade of cotton delivered under the said contract as rent for the year 1932; while the third count demanded judgment for eighteen dollars for attorney's fees paid by the appellee for appellant for the preparation of the said lease contract and a mortgage for advances. On the first count the court awarded the appellee a judgment against appellant for two hundred forty-one dollars and twenty-five cents, being the value of two thousand five hundred pounds of middling lint cotton at nine and sixty-one hundredths cents per pound. On the second count the court found for the appellant, while on the third count appellee was awarded a judgment for one-half...