Wilczinski v. Watson

• Decision Date: 22 November 1915
• Docket Number: 17005
• Court: Mississippi Supreme Court
• Parties: WILCZINSKI v. WATSON

69 So. 1009

110 Miss. 86

WILCZINSKI v. WATSON

No. 17005

Supreme Court of Mississippi

November 22, 1915

APPEAL from the chancery court of Washington county. HON. E. N THOMAS, Chancellor.

Bill by Lamar Watson, Trustee, against Joel Wilczinski. From a decree for complainant, defendant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed, and bill dismissed.

Campbell & Cashin, for appellant.

The trust deed provides that the "sale shall be made after first advertising the said land for sale by publishing a notice thereof for thirty days, giving in each of said notices the time, place and terms of said sale, and by posting a copy of said notices at the front door of the courthouse."

In other words, the trust deed requires thirty days of advertising by publishing and posting of notice of the sale before the sale shall be made. As shown by the testimony of Lamar Watson, Trustee, and Exhibits Numbers 2 and 3 thereto the Notice of Sale was posted at the courthouse door on the ninth of February, 1912, and the first publication of said notice was made on the tenth of February, 1912, and the sale was made on the fourth day of March, 1912. So then, it clearly appears upon the face of the record that the notices of sale were only published and posted twenty-two days before the sale was made.

A sale under a trust deed, made without notice required by the terms of the trust deed, is void, and a trustee's deed under such a sale conveys no title to the purchaser. 28 Am. and Eng. Ency. of Law, page 788.

While this is not the rule in some jurisdictions, it is unquestionably the law in Mississippi. See 28 Am. and Eng Ency. of Law, page 786; Walker v. Brumgard, 13 Smed. & M. 763; Wrightman v. Doe, 24 Miss 681; Wade v. Thompson, 52 Miss. 367; Graham v. Fitts, 53 Miss. 307, and Enochs v. Miller, 60 Miss. 19.

In the latter case, CHALMERS J., delivering the opinion of the court says: "Where a sale in pais is made by a trustee under an instrument conferring a power of sale upon him under certain prescribed terms and conditions, a substantial compliance with the mode, manner and terms prescribed is essential to pass the title, and any disregard of them, in any important respect, will vitiate the sale. The making of the deed is prima-facie evidence that the sale was properly made, and will throw upon him, who attacks or resists it, the burden of showing the contrary.

In the present case the defendants assumed and successfully met this burden by proving that the sale took place upon twenty-six days' notice, instead of thirty, as was required by the deed of trust under which it was made. The court below properly held that the purchaser acquired no title, "citing various authorities, among them those above mentioned."

In the case at bar, while the decree recites that the sale in question was made "in all respects in conformity with the trust deed of which it was made and the statute for such cases provided," this recital of the decree is plainly contradicted by the record. The trust deed itself, which is filed as Exhibit Number 1 to the testimony of Lamar Watson, shows plainly upon its face that it required thirty days' advertisement before a sale of the property could be made, and Mr. Watson's testimony shows that he posted the notice on the ninth day of February, 1912, and that the notice of the sale was published in the Greenville Times, the first time, on February tenth, 1912, and that he made the sale on the fourth day of March, 1912, only twenty-two days after the first publication of the Notice of Sale.

We presume Mr. Watson must have overlooked the terms of the trust deed, requiring thirty days' advertisement, and supposed that it only required three weeks' advertisement, because that is what the statute (Sec. 2772 of the Code, and the amendment thereto by chapter 180 of the Acts of 1908), require.

Of course, we do not suppose that the chancellor, himself, examined the trust deed and advertisement, to see whether or not the trustee had, in fact, given the notice required by the terms of the trust deed. An inspection of the trust deed and advertisement, themselves, plainly discloses that the notice required by the terms of the trust deed was not given.

Therefore, under our decisions, the sale was absolutely void. This being true, the bidder cannot be required to accept the trustee's deed, and to pay the amount of his bid. The trustee's deed is absolutely void and conveys no title.

We do not understand that section 2772 of the Code changes the law requiring the notice prescribed by the terms of the trust deed to be given, except where the trust deed requires less than three weeks advertisement. In such cases, the sale must be advertised for three weeks preceding the sale, notwithstanding the fact that the trust deed provides for advertisement for a shorter time. If the trust deed requires advertisement for more than three weeks, then the terms of the trust deed, as to the notice and advertisement, must be followed. This does not conflict with the statute, but would be in harmony with it and with the terms of the trust deed.

Percy Bell, for appellee.

The case of Bomar v. West, 28 S.W. 519, cited by counsel for appellant, we submit is not in point. In that case the trust deed provided that "the sale should be made at the instance of the payee or legal holder of the said notes." In the present case the deed of trust expressly provides that "if default is made in the payment of any one of the notes that the owner and holder thereof may direct the trustee to foreclose." That this must have been their intention is shown by the paragraph of the trust deed providing for the substitution of the trustee, which plainly says that the trustee can only be substituted by the owner and holder of the notes--meaning all of them. The difference is very evident.

Furthermore, in the Bomar case only one of the notes had fallen due; in the case at bar all of them were past due and there was no necessity of a declaration of their being due.

The sale was void because not advertised for thirty days. In this connection we would direct the attention of the court to the authority just cited, and to Wightman v. Doe, 24 Miss. 681.

The court will observe that this sale was made in strict accordance with the statute, which forms the law of the state of Mississippi. We are of the opinion that this statute of Mississippi prescribes the method of sales made under trust deeds and that a sale made under it is legal. The contention of appellant is that there was not thirty days' notice given as stated in the trust deed but it is admitted that the sale was in every respect, save this, .n accordance with the terms of the trust deed and was in every way in accordance with the statute. We submit that the irregularity as to time is an immaterial irregularity at best and we refer the court to 27 Cyc. 1493-B and note 52 thereunder. In addition thereto we would again refer the court to the authorities cited at the beginning of this section; that Mr. Wilczinski is not a person to complain of this irregularity and that no complaint is made by those who have the right, if any, to complain.

We submit that the statute governs the method of foreclosures and we refer the court to 27 Cyc. 1450-B, in which the statement is made that statutes similar to ours "must, of course, be fully complied with in order to effect a valid foreclosure."

Replying to the authorities quoted by counsel for appellant in support of his position that sufficient notice was not given, we would state that all of these cases were decided when Mississippi had no such statute as she now has fixing the method of foreclosure of trust deeds.

STEVENS J. SMITH, C. J., dissenting.

OPINION

STEVENS, J.

Appellee, as complainant in the court below, exhibited his bill in the chancery court of Washington county against appellant, seeking recovery of the sum of six hundred and ninety dollars and interest, bid by appellant at a trustee's sale foreclosing a deed of trust in which the appellee is the trustee. Isaiah and L. C. Ballard, on March 12, 1910, executed to Lamar Watson, trustee, a deed of trust conveying a certain parcel of land in the city of Greenville to secure three promissory notes in favor of one Allen Caldwell. The trust deed provides that:

If default shall be made "in the payment of said notes at maturity, or any one of...