Tyler v. Herring

• Decision Date: 11 November 1889
• Citation: 6 So. 840,67 Miss. 169
• Court: Mississippi Supreme Court
• Parties: WARREN TYLER ET AL. v. L. W. HERRING

6 So. 840

67 Miss. 169

WARREN TYLER ET AL. v. L. W. HERRING

Supreme Court of Mississippi

November 11, 1889

FROM the circuit court of Attala county, HON. C. H. CAMPBELL Judge.

Appellee brought this ejectment suit to recover certain land bought by him at trustee's sale under a trust deed given by appellants to secure a debt due to him by them.

The trustee, who lived in another county, was unable on account of sickness to attend and conduct the sale in person, and directed his brother as his agent to make it. This was done and the trustee ratified the sale and made the deed.

The trustee demanded of appellants the possession of the land before the sale for the purpose of selling, but was refused and proceeded to sell without such possession.

The other facts necessary to a proper understanding of the points passed upon are stated in the opinion.

Judgment reversed and cause remanded.

Haden &amp Dodd, for appellants.

It was error to give plaintiff's instructions and to refuse those of defendants touching the burden of proof. The plaintiff attempted to prove that the proper notice of sale was given, and whenever he did this we submit that it devolved on him to do so.

[Counsel reviewed the case of Johns v. Sergeant, 45 Miss. 332, and the case of Vaughn v. Powell, 65 Ib. 401, seeking to have the views announced in them modified.]

Monroe McClurg and Brame & Alexander, for appellee.

Taking possession of the land by the trustee was not a prerequisite to the exercise of the power of sale. Enochs v. Miller, 60 Miss. 21; Vaughn v. Powell, 65 Ib. 401.

It was lawful for the trustee to employ an agent to make the sale. Johns v. Sergeant, 45 Miss. 332.

The burden of proof was upon appellants to show that the notices were not posted. "The presumption is to be indulged that the trustee did those acts in pais which were conditions precedent to a valid sale by him, and the burden of showing the contrary is on those who question the validity of the sale." Graham v. Fitts, 53 Miss. 307.

OPINION

COOPER, J.

The sale under the deed of trust was not invalid, either because the trustee did not take possession of the land before the sale or for the reason that, the trustee being sick, the land was cried off by a person selected by him, whose act he afterwards ratified and approved.

The provision of the deed of trust that "upon default of payment of the debt secured, the trustee shall immediately take possession, and having given notice sell the land conveyed, etc.," was intended to confer upon the trustee the right of possession, but did not make such taking possession a condition precedent to the power of sale. Vaughan v. Powell, 65 Miss. 401, 4 So. 257.

The performance of the mere ministerial acts of posting the notices and making the sale by agents selected by the trustee does not affect the validity of the sale. Johns v. Sergeant, 45 Miss. 332.

The deed from the trustee to the purchaser Herring [who was beneficiary in the deed of trust] recites that the sale was made after notice had been given in the manner prescribed by the deed. This was by posting notices in three public places in the county for the period of ten days preceding the day of sale.

The trustee was introduced as a witness on behalf of plaintiffs and on cross-examination stated that he did not personally post any one of the notices, and only knows they were posted by what he has been told. Other evidence introduced by plaintiff showed that one of the notices had been posted for the required time; as to the other two it appears that the trustee gave them to an agent and directed him to post one at Briscoe's mill and the other at Rickett's mill, these being public places within the county. It was then proved by a certain witness that some time before the sale of the property he saw the two notices at the above-named places, but this witness could not...