White v. Stennis
| Decision Date | 26 November 1928 |
| Docket Number | 27484 |
| Court | Mississippi Supreme Court |
| Parties | WHITE v. STENNIS et al. [*] |
1 MORTGAGES. Attorney's copying substitution of trustees in deed of trust book, neither beneficiary nor clerk being present, was unauthorized, and sale by substituted trustee was void (Hemingway's Code 1927, section 2432).
Where attorney for beneficiary copied substitution of trustees in deed of trust book, and neither the beneficiary nor the chancery clerk were present when attorney did so, there was no authorized spreading on record of appointment of substituted trustee by beneficiary such as could be recognized as notice and sale made by substituted trustee was void under Code 1906, section 2773 (Hemingway's Code 1927, section 2432).
2 RECORDS. "Recording" means coding instrument into public records in book kept for "purpose by or under superintendence of officer therefor.
"Recording" means copying instrument to be recorded into public records in book kept for that purpose by or under superintendence of officer therefor.
APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.
Unlawful entry and detainer proceedings instituted in the county court by T. J. White, Jr., against Q. M. B. and L. A. V. Stennis. Judgment for defendant was affirmed by the circuit court, and plaintiff appeals. Affirmed.
Affirmed.
F. V. Brahan, for appellant.
Cited: Paden v. Gibbs, 88 Miss. 274; Taylor v. Orlansky, 92 Miss. 761; Robinson v. Boggan, 97 Miss. 27; Tyler et al. v. Herring, 67 Miss. 169; Smith v. Williams Brooke Co., 111 Miss. 393; Shipp v. Building Assn., 81 Miss. 17.
Chas. B. Cameron, for appellee.
Cited: King v. Jones, 121 Miss. 219.
White, appellant here, plaintiff in the court below, instituted in the county court of Lauderdale county unlawful entry and detainer proceedings against Stennis and another for possession of certain lands. Upon the trial the county court entered a judgment in favor of the defendant, the appellee here, from which judgment White appealed to the circuit court, where the judgment of the lower court was affirmed. From this judgment White prosecutes his appeal here.
The facts, briefly stated, are that the appellant, T. J. White, Jr., was the owner and beneficiary in a deed of trust executed by the appellees, Q. M. B. and L. A. V. Stennis. In the original trust deed, of which T. J. White, Jr., was the assignee, E. L. Snow was named as trustee; and, desiring to have the deed of trust foreclosed, the appellant undertook to substitute another trustee, and for that purpose carried his papers to F. V. Brahan, an attorney. The attorney wrote on the original deed of trust the following:
T. J. WHITE, JR."
After this notation was made on the original papers, the attorney went to the courthouse, and copied the substitution on the deed of trust in Book 139, at page 224. This notation was signed by the beneficiary in the attorney's office.
Thereafter Brahan advertised the property for sale, sold it, executed his trustee's deed to T. J. White, Jr., who became the purchaser at the sale, and said trustee's deed was duly recorded and indexed by the chancery court.
Neither T. J. White, Jr., nor the chancery clerk were present when the attorney wrote on the record in the chancery clerk's office the foregoing substitution of trustee. No part of the substitution, as it was spread on the record, was in the handwriting of T. J. White, Jr., or the chancery clerk, or in the presence of either. The whole substitution was in the handwriting of the attorney.
Many objections were interposed by the appellee to the introduction of the record, for the reason, as contended, that there was no substitution of a trustee, and that there was no spreading on the records of a substitution by the beneficiary in the trust deed.
It is the contention of the appellant here that when the attorney copied the substitution which appeared on a paper, separate and distinct from any record in the chancery clerk's office, a legal substitution was thereby made. The court below held that there was no legal substitution, and that the proceeding was wrong, and the substituted trustee's deed thereunder was void.
The decision of this case involves a construction of section 2432, Hemingway's Code of 1927 (section 2773, Code of 1906), which section is as follows:
This statute originally appeared in our laws by virtue of chapter 96 of the Laws of 1896, and, as amended, is set forth in section 2773, Code of 1906. In Brown v. Mortgage Co., 86 Miss. 388, 38 So. 312, said chapter 96 was construed by this court, and it was there held that the lodging and filing with the chancery clerk of a separate appointment, duly acknowledged, substantially complied with the statute.
In the cases of White v. Jenkins, 79 Miss. 57, 28 So. 570, and Shipp v. B. & L. Ass'n, 81 Miss. 17, 32 So. 904, this court held that, where the appointment of a substituted trustee had not been filed with the chancery clerk when the sale was made, such sale was void.
After the decision of this court in Brown v. Mortgage Co., supra, the law was amended, and the statute required that the appointment of a substituted trustee be actually spread upon the records before the first advertisement of notice of sale.
In the case of King v. Jones, 121 Miss. 319, 83 So. 531, the court held, construing the...
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