Smith v. Williams-Brooke Co.
| Decision Date | 15 May 1916 |
| Docket Number | 17287 |
| Court | Mississippi Supreme Court |
| Parties | SMITH v. WILLIAMS-BROOKE CO |
APPEAL from the circuit court of Newton county, HON. C. L. DOBBS Judge.
Suit by Williams-Brooke Company against W. H. Smith. From a judgment for plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
W. I Munn, for appellant.
In a suit of this kind, the title to the property is not in issue but the only question to be considered and decided is the right of possession of the property, so it can be readily seen that one person may hold a good and valid title to property and at the same time he could not recover possession of the property against a person who had no title whatever, under certain circumstances.
Appellee's counsel cites the case of Marks v. Howard, reported in 70 Mississippi, 445, and quotes the language of the court in that opinion as follows, to-wit:
Suppose that the deed of trust should have been executed on Sunday; surely the grantor in the deed of trust would have the right in a contest between himself and the purchaser, at the trustee's sale to show that the deed of trust was void and that the deed was likewise void, and that the purchaser could not and ought not to recover against him.
Counsel says that the case of Williams v. Simpson reported in 70 Mississippi, 113, bears about the same resemblance to the case at bar that a hawk bears to a handsaw; we do believe that this case settles the point now before the court, and that is, whether or not the appellant can show that the trustee's deed is void; that the trustee's deed is incomplete; that the beneficiary in the deed of trust has not complied with the terms and conditions of the deed of trust, and that the beneficiary cannot recover possession of the land until the deed of trust has been strictly complied with; these are no equity defenses, but are such defenses as go to the possession of the property. We therefore insist that we are correct in our contention as shown by our former brief in this case.
G. H. Banks, for appellee.
Appellant has never questioned the validity of the several instruments through which appellee claims his right to possession of these lands but merely contends that the amount claimed to be due appellee was larger than the amount he was actually due him at the time. In other words his defence is purely an equitable defence, if in fact he has any at all.
"The purchaser of land at trustee's sale, under trust deed with power of sales on default, is entitled as against the grantor, who withheld possession, to maintain the action of unlawful entry and detainer." (Marks v. Howard et al., 70 Miss. 445.)
Purely equitable defenses are not maintainable in an action of unlawful entry and detainer. (Homes etc. Assn. v. Leonard, 77 Miss. 39.)
"Neither the legal title to the property nor any secret equities between the parties can be investigated." (Clark v. Bourgeois, 86 Miss. 1.)
The case of Williams v. Simpson, 70 Miss. 113, the only case upon which distinguished counsel relies, is mighty good law, but it bears about the same resemblance to the case at bar that a "hawk" bears to a "handsaw."
We respectfully submit that every authority we have been able to find bearing on this case either directly or remotely abundantly sustains the lower court in the judgment there rendered.
W. C. Longmire, for appellee.
As to the tender which appellant alleges that he made if this were a fact, it would not discharge the lien of the trust deed, and would not affect the matter one way or the other, as there is no evidence that the tender was kept good or that the appellant was willing at any time thereafter to pay the amount and of course there would be no other course for the appellee to have pursued. As to tender or not discharging lien see, Tishimingo Savings Bank v. J. W. Buchanan et al., 60 Miss. 496, 504.
Appellant relies on Williams v. Simpson, 11 So. 689. We submit that this case does not touch the one at bar, the only question decided in that case was that the trust deed relied on was void from the beginning on account of the merchant never paying his privilege tax, and if this were a fact it is just as if he never had taken a trust deed, attorney for appellant seems to hold to the idea that the alleged tender made by appellant rendered the trust deed in the case at bar void, but we have seen above that this is not the law.
We therefore submit respectfully that this case should be affirmed as to the possession of the land, and that judgment should be rendered in this court in favor of appellee for rent of said land at fifty dollars per year from Oct. 12, 1913.
Williams-Brooke Company, appellee herein, instituted this action of unlawful entry and detainer against appellant in accordance with procedure outlined by chapter 147 of the present Code. From an adverse judgment entered against him by the unlawful entry and detainer court appellant, as the defendant in the proceedings, appealed to the circuit court, and upon the trial of the cause on its merits in the circuit court a peremptory instruction was granted in favor of appellee, as plaintiff. From the judgment entered in pursuance of said instruction, appellee brings the case to this court for review. Appellee is a firm doing a mercantile business in Newton county, and in the usual course of its business accepted from appellant a deed of trust to secure a certain promissory note in the sum of one hundred and sixty-five dollars due and owing by W. H. Smith, appellant, and his wife, Rosa Smith, and also to secure subsequent advances. The promissory note was payable on or before November 1, 1911. The deed of trust in question was given upon a mule and forty acres of land, as well as the entire crop to be grown during the year 1911. Default having been made in the payment of the indebtedness secured by the deed of trust, W. C. Longmire, the trustee named in the trust deed, in pursuance of the provisions of the instrument, duly published in January, 1912, notice of foreclosure sale, and on February 13, 1912, sold the real estate at public auction in accordance with law and the provisions of the deed of trust. Appellee, the beneficiary bid in the property and received from the trustee the usual trustee's deed. Appellant having refused to surrender possession of the premises conveyed by the trustee's deed, appellee resorted to this possessory action for relief. On the trial of the case in the circuit court the appellant, as a witness in his own behalf, testified that he had paid a part of the indebtedness secured by the deed of trust, and "offered to pay the balance." The substantial portion of his testimony on this point is disclosed by the record as having been introduced in the absence of the jury, and is as follows:
"
After all the testimony had been introduced the court peremptorily charged the jury to find for the plaintiff and refused the several instructions requested by the defendant. One of the refused instructions was, in effect, a statement that, if the jury believed from the evidence that the defendant in December, 1911, "offered to pay, and did make a legal tender, the balance due on the said deed of trust," and that said company refused to accept said payment, and thereafter instructed the trustee, W. C. Longmire, to advertise and sell the land mentioned in the deed of trust, said sale was void. The evidence fails to disclose any irregularity in the notice of the trustee's sale, in the manner of conducting the sale, or in making the sale. The only question that merits consideration is the contention of counsel for appellant that, a tender of the balance due on the deed of trust having been made to the beneficiary before the deed of trust was foreclosed, and this tender having been refused, any sale by the trustee is void and conveyed no title.
Whatever the holding may be in other states as to the effect of a legal tender upon the lien of a mortgage or deed of trust, our court has long since repudiated the doctrine that a tender of the amount secured by deed of trust discharges the lien given and evidenced by the instrument. Campbell, C. J., in the case of Tishimingo Savings Institution v. Buchanan et al., 60 Miss. 496, announces the views of the court as follows:
The right of the purchaser of land at a trustee's sale to maintain this action of...
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