Polk v. Dale

• Decision Date: 19 October 1908
• Docket Number: 13,373
• Court: Mississippi Supreme Court
• Parties: JOHN R. POLK ET AL. v. SEABORN S. DALE ET AL

47 So. 386

93 Miss. 664

JOHN R. POLK ET AL. v. SEABORN S. DALE ET AL

No. 13,373

Supreme Court of Mississippi

October 19, 1908

FROM the chancery court of Jefferson Davis county, HON. G. GARLAND LYELL, Chancellor.

Dale and the other members of the mercantile co-partnership of "S. S. Dale & Sons," appellees and one Carlton trustee, were complainants in the court below; Polk and others, appellants, were defendants there. From a decree in favor of complainants the defendants appealed to the supreme court.

In December, 1902, John R. Polk and J. L. Polk executed a deed of trust to J. S. Dale as trustee for the use and benefit of S. S. Dale on certain described land and personalty situated in Covington county. The deed of trust stipulated that, in case of default in payment of the indebtedness secured after maturity thereof, the trustee, "after having given ten days' notice of the time, place and terms of sale, by posting notices in three public places in said county, shall sell said property, or a sufficiency thereof to make payment for cash, at public auction, at S. S. Dale's Store." This store was in Lawrence county. After default in payment of the secured indebtedness, one Carlton, substituted trustee, made sale of the property described in the deed of trust, in the method prescribed by that instrument at the county court house in Covington county and not at "S. S Dale's Store," in Lawrence county. This sale was made before the substitution of Carlton as trustee (in the place of J. S. Dale named as trustee in the deed of trust) was made of record. Being advised of the invalidity of his first sale the substituted trustee, after having his substitution duly recorded, again advertised and sold the property, under the deed of trust, the complainants becoming the purchasers. It will be noted, that although the place mentioned in the deed of trust for sale to be made, was in Lawrence county, the substituted trustee, in making the second sale, followed Code 1892, § 2484, then in force and advertised the sale for the period and in the mode designated by the deed of trust, in three public places in Covington county and sold the land at public auction for cash to the highest bidder, at (the place mentioned in his advertisements) the county court house door in Covington county. The complainants, appellees, again became the purchasers. The opinion of the court further states the facts.

Case affirmed.

McIntosh & McIntosh, for appellants.

The sale made by the trustee passed no title, and his deed is invalid, because the trustee failed to comply fully with the requirements and provisions of the deed of trust. The sale was made prior to the adoption of Code 1906, hence Code 1892 and its amendments governed the matter. Code 1892, § 2484, requires that, if a deed of trust, with power of sale be silent as to the place and terms of sale and mode of advertisement, a sale shall be made after condition broken for cash and upon such notice and time and place as the law requires for sheriff's sales of like property. Now, the deed of trust under contemplation was not silent as to its terms, for it provided that the land should be sold for cash; it was not silent as to place of sale, since it distinctly stated that the land should be sold at S. S. Dale's store; and it was not silent as to mode of advertising, for it provided that the notices of sale should be posted at three public places in the county. Williams v. Dreyfus, 79 Miss. 325, 30 So. 633; Goodman v. Loan Ass'n., 71 Miss. 310, 14 So. 146.

If, by reason of the laws 1896, ch. 103, p. 109, the land could not be advertised and sold in accordance with the provisions of the deed of trust then the sale should have been made, in accordance with the requirements of Code 1892, § 3486, namely, on the first Monday of a month or on the first Monday or Tuesday of a term of court held in the county, and after advertisement in a newspaper in the county for three successive weeks before sale.

The trustee advertised and sold the land pursuant to the terms of the deed of trust, to a limited extent only, the time, term and mode of sale being as specified in the deed of trust. He did not, however, follow the deed of trust as regards the place of sale, but, instead, followed the provisions of laws 1896, and sold the land in front of the court house in Covington county, although the deed of trust stipulated that the sale should be at "S. S. Dale's Store;" the evidence disclosing that this store was in Lawrence county. Certainly it is beyond the powers of a beneficiary or a trustee in a deed of trust to avail of so much of the delegated authority in the deed of trust as may seem to be advisable, and then in all other respects seek shelter under the privisions of statute law to make the trustee's sale valid.

Carlton, the substituted trustee, in making the first sale exhausted the power and authority delegated to him in the deed of trust, hence had no authority to make the second sale. The first sale was void for the reason that his substitution was not of record when he made such sale. Hence no title has passed to appellees. 26 Am. & Eng. Ency. of Law (2d ed.), 923; Stephens v. Clay, 17 Col. 479; Koester v. Burke, 81 Ill. 436; Doe v. Robertson, 24 Miss. 688; Huckaboo v. Billingsley, 16 Ala. 414; Cranston v. Crane 97 Mass. 459; Tyler v. Herrin, 19 Am. St. Rep. 263; Robertson v. Stone (Ala.), 45 L. R. A. 73.

J. C. Carlton, and T. Brady, Jr., for appellees.

Code 1892, § 2484 has no application here. It was enacted for the purpose of making effective deeds of trust or mortgages with power of sale, from which some one or more of the particulars, mentioned in the statute, had been omitted. The deed of trust in this case is not "silent" in any particular, hence Code 1892, § 2484 is not applicable. Williams v. Dreyfus, 79 Miss. 249, 30 So. 633.

In making this sale the trustee followed the provisions of the deed of trust with one exception. The deed provided that sale should be made at "S. S. Dale's Store," which according to the evidence, is in Lawrence county. The land described in the deed of trust is however, in Covington county. Under Laws 1896, ch. 103 the provisions of the deed of trust could not legally have been followed. Realizing this, the trustee complied with the...