Rawlings v. Anderson

• Decision Date: 05 March 1928
• Docket Number: 26820
• Citation: 115 So. 714,149 Miss. 632
• Court: Mississippi Supreme Court
• Parties: RAWLINGS v. ANDERSON et al. [*]

115 So. 714

149 Miss. 632

RAWLINGS v. ANDERSON et al. ^[*]

No. 26820

Supreme Court of Mississippi

March 5, 1928

Division B

Suggestion of Error Overruled March 19, 1928.

APPEAL from chancery court of Adams county. HON. R. W. CUTRER Chancellor.

Suit by J. T. Rawlings against T. A. Anderson and others. From a decree dismissing the bill, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. S. Logan and L. T. Kennedy, for appellant.

The offering of a larger tract for sale in "undescribed" subdivisions is not a compliance with the law, and a defective sale of this sort will not divert ownership of lands from one person and vest such ownership in another. There must be a strict compliance with requirements of the law before one can be summarily divested of his property under foreclosure proceedings, especially in a case like this where the appellant is shown to have been grossly overreached at every stage of the proceedings by the conduct of his creditors, and where they have ousted him from the possession of his property, both real and personal, by questionable means and acquired it for themselves at a small fraction of its real value.

If it be contended that the recital in the trustee's deed that "I did, at said time and place offer said land at public sale for cash in 'undivided parcels of one hundred sixty acres each,'" etc., raises a presumption that the trustee complied with the requirements of the law and that these one hundred sixty-acre parcels were described, the argument might prevail in the absence of positive testimony, but not to overthrow the positive testimony of the witness on this point. See Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96.

In view of the ruling of this court in Fauntleroy v. Mardis, supra, as applied to the facts of this case, the evidence shows that there was no offer of the lands in subdivisions of one hundred sixty acres as required. For, we submit, the law has reference not to an "undescribed" and undefined subdivision, which is not a subdivision at all, but to subdivisions of the tract so described that a surveyor could take a deed of the subdivision and with it identify and locate the particular subdivision that might be purchased by the bidder.

Lowrey & McLain, for appellees.

The question most seriously urged for the reversal of this cause is whether the chancellor erred in holding that Retirement plantation was not offered for sale, under the Federal Loan Bank mortgage, as required by law. It is contended by appellant that it was not offered by the substituted trustee in one hundred sixty-acre tracts or lots as required by law, or as required by the constitutional requirement.

The deed of conveyance, executed by the substituted trustee, recites: "Whereas, still acting by virtue of the authority vested in me as substituted trustee aforesaid, I did, at said time and place offer said land at public sale for cash in undivided parcels of one hundred and sixty acres each, receiving therefor bids aggregating five hundred dollars, which amount was insufficient to satisfy said indebtedness aforesaid, and did then offer all of the above-described land to the highest bidder or bidders for cash as an entirety, whereupon after sundry bids by divers persons, F. A. Anderson, of Gloster, did offer and bid for said land as an entirety, the sum of five thousand three hundred fifty dollars, which amount was the highest and best bid received for said land when offered as an entirety, and exceeding the aggregate of the bids received, when said land was offered in undivided parcels of one hundred sixty acres each."

Appellant in his brief lays much stress on the word undescribed and cites Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96, as authority for reversal of this cause. We submit that when the evidence is considered any objection must disappear; for the chancellor had all the evidence before him at the hearing.

Everything was done by the substituted trustee to comply with both the letter and spirit of the law in the sale of this land, that could have been done, and nothing more could have been done by him to convey a good title to said land at said sale.

OPINION

PACK, J.

Appellant, in his bill and amended bill, attacked the validity of a foreclosure sale of land made by R. H. Brandon, substituted trustee, under a deed of trust executed by appellant to the Federal Land Bank, as beneficiary, and also challenged the foreclosure sale of certain live stock under a chattel mortgage executed by appellant to one Mr. Byrnes, as beneficiary.

Both sales were attacked on the ground of fraud on the part of Anderson and Byrnes, and also on the further ground that the substituted trustee did not offer the land for sale and sell it in accordance with the terms and provisions of the instrument itself, as required by section 2772, Code 1906 (section 2431, Hemingway's 1927 Code). The demurrer of defendant Byrnes to the bill, as amended, was sustained. Anderson answered under oath; answer under oath not being waived. Every allegation of fraud was denied in the answer. It put in issue every controverted fact, and the answer was made a cross-bill.

On these issues the court heard oral proof and documentary evidence. A final decree was rendered for the defendant, holding that said sales were free from fraud, and the decree dismissed the bill.

There being a conflict in the evidence as to the allegations of fraud, and the chancellor having found for the defendant, this finding will not be disturbed in so far as it relates to the issue of fraud. The serious question in the case, however, is whether or not the trustee's sale of the land is subject to the other attack made upon it. The land embraced in the deed of trust was described as follows:

"Retirement plantation, in Adams county, Mississippi, containing about eight hundred (800) acres and being the northwesterly portion of section twenty (20), township five (5) north, range one (1) west, bounded on the north by Beekman property, on the east by Beekman, south by Franklin plantation, and west by 'Deerfield plantation.'"

That part of section 2772, Code 1906 (section 2431, Hemingway's 1927 Code), pertinent to this question reads as follows:

"All lands comprising a single tract, and wholly...