Wirtz v. Gordon

• Decision Date: 05 December 1938
• Docket Number: 33433
• Citation: 184 So. 798,187 Miss. 866
• Court: Mississippi Supreme Court
• Parties: WIRTZ et al. v. GORDON et al

184 So. 798

187 Miss. 866

WIRTZ et al. v. GORDON et al

No. 33433

Supreme Court of Mississippi

December 5, 1938

Division B

1 MORTGAGES.

A holder of bonds secured by trust deed who purchased at allegedly invalid foreclosure sale became equitable assignee of the lien and indebtedness to the extent of his interest and succeeded to the rights of a mortgagee in possession from the date of the confirmation of the sale, including the right to have mortgage indebtedness paid or tendered as a condition precedent to the right of mortgagor's devisees to enter possession under partition. (Code 1930, secs. 2128, 2982.)

2 PARTITION.

After condition in trust deed is broken, heirs of grantor in trust deed do not have the right of possession necessary to maintenance of partition suit as against either the trustee or the purchaser at a void foreclosure sale, until the indebtedness is tendered or paid. (Code 1930, sec. 2128.)

3. TENANCY IN COMMON.

The right of possession is essential to tenancy in common.

4 PARTITION.

A partition suit is not maintainable without right of possession in the parties seeking partition.

5. MORTGAGES.

As against mortgagors and mortgagor's devisees, legal title of mortgaged land and the right of possession passed to the trustee at the time of default, and trustee could not be divested thereof until the debt should be tendered or paid. (Code 1930, sec. 2128.)

6. MORTGAGES.

A mortgagee in possession after a void foreclosure sale, as equitable assignee of the debt secured, cannot be divested of his equity and right of possession until the debt is tendered or paid, (Code 1930, sec. 2128.)

7. MORTGAGES.

Equity courts will not entertain a bill for relief against an invalid foreclosure sale without a tender or offer to pay the mortgage debt.

8. MORTGAGES.

The requirement that persons seeking relief against invalid foreclosure sale do equity by tendering or offering to pay the mortgage debt applies to adults and infants alike.

9. MORTGAGES.

The only right or remedy of the mortgagor or those claiming under mortgagor against purchaser in possession under a void foreclosure sale is to redeem the land from the mortgage indebtedness, whether such purchaser be the mortgagee or a third party.

10. EXECUTORS AND ADMINISTRATORS.

Under will authorizing executrix to sell and convey land "by warranty deed or otherwise,'" to discharge liens or for other purposes, executrix had power, in a proceeding instituted with her sanction and approval, in which she entered appearance for infant devisees, to agree to the entry of what amounted to a consent decree approving foreclosure sale and the execution of a commissioner's deed to purchaser at such sale.

11. EXECUTORS AND ADMINISTRATORS.

A request by mortgagor's executrix, as defendant in foreclosure proceeding, that the foreclosure sale be confirmed and commissioner's deed be executed, had the same legal efficacy as if executrix had been a petitioner instead of a defendant, asking for a decree sanctioning a sale authorized under the will.

12. EXECUTORS AND ADMINISTRATORS.

Under will giving executrix power to convey land by deed or otherwise at private sale, devisees are not necessary parties in proceeding for decree sanctioning a private sale or proving a judicial sale made in a foreclosure proceeding instituted with her sanction and approval.

13. FRAUDS, STATUTE OF.

The statute of frauds is a personal privilege of the contracting parties sought to be charged and is not available to any one else in a collateral proceeding. (Code 1930, sec. 3343.)

14. FRAUDS, STATUTE OF.

An oral agreement between bondholders and executrix of the grantor in trust deed securing the bonds, for the foreclosure of the trust deed, was not invalid under the statute of frauds, where principal bondholders fully performed the agreement by advancing tax redemption money to executrix and completing the foreclosure proceeding, and executrix performed by delivering possession to purchaser at foreclosure sale. (Code 1930, sec. 3343.)

HON. H. P. FARISH, Special Chancellor.

APPEAL from the chancery court of Sunflower county HON. H. P. FARISH, Special Chancellor.

Suit by Ann F. Gordon against Edmond Gertrude Faison and others, for partition of farm land. From a decree granting partition, defendant Arthur M. Writz and others appeal. Reversed and rendered.

(On suggestion of error the Division Judges being in disagreement the original opinion and judgment was set aside and matter referred to Court in banc. The Court in banc adopted the original opinion.)

Reversed and decree here for appellants. Reversed and decree here for appellants.

Everett & Everett, of Indianola, W. W. Venable, of Clarksdale, and Chas. H. Watson, of Chicago, Ill., for appellants.

Moody & Davis and Elbert Johnson, all of Indianola, for appellees.

McGehee J., Ethridge, J., dissenting.

OPINION

McGehee, J.

This appeal is from a decree for the partition of 1878 acres of farm land located in Sunflower County and the recovery of the rental value thereof, and involves the question of whether a sale of the land under a deed of trust which was foreclosed in chancery and at which the appellant Arthur M. Wirtz became the purchaser should in effect be declared void and the claim of title asserted by such purchaser under the proceeding be cancelled as a cloud upon the title on the ground that the appellees, Ann F. Gordon and Edmond Gertrude Faison, who were then minors, were not legally served with process in such foreclosure proceedings. Other questions are presented and will be considered in their proper order.

On July 9, 1921, E. H. Faison, father of the appellees and husband of Mrs. Gertrude H. Faison, executed his last will and testament whereby he devised and bequeathed unto his said wife and two children all of his property, real and personal, subject to certain conditions therein mentioned. Among other provisions contained in the will, his wife was appointed as executrix to serve without bond, and vested with the following powers under clauses "c", "d" and "e" of such instrument:

"c. To sell and convey, by warranty deed or otherwise, any land that she may think necessary to pay off and discharge any indebtedness constituting a lien on all or any part thereof, or any other purpose.

"d. To borrow money for the purpose of discharging any indebtedness, constituting a lien on any of the property herein devised, to operate and cultivate the plantation, or in fact for any purpose she deems advisable, execute note or notes evidencing the amount or amounts thus borrowed, and secure the payment thereof by executing a mortgage, deed of trust or other contracts on all or any part of the property, herein devised, real, personal and mixed.

"e. Any deed, mortgage, deed of trust or other contract, affecting the title to all or any part of the property, herein devised, executed by my said wife, as Executrix, shall be held and deemed as conclusive evidence that this last will and testament vested in her full and complete power to execute the same, and the property affected thereby shall be fully bound to the same extent as if legal title thereto had been vested in her."

On November 24, 1922, the testator and his wife executed a deed of trust on the land here involved, in favor of Charles Forman, who was designated as trustee, and Herman Hachmeister, who was designated as successor trustee, for the benefit of George M. Forman & Company of Chicago, Illinois, to secure the payment of eighty-four 6 1/2% Farm Loan Mortgage Gold Bonds in the principal amount of $ 84,000, $ 5,000 of which matured December 15, 1927, the same amount on the 15th day of each and every December thereafter to and including December 15, 1931, the balance, amounting to $ 59,000, maturing on December 15, 1932, and which deed of trust was duly recorded in said county.

On November 11, 1926, prior to the maturity date of any of the said bonds, the testator E. H. Faison died and left surviving him his wife, the said Mrs. Gertrude H. Faison, and two children, Ann Faison, who afterwards became, by marriage, Ann F. Gordon, and Miss Edmond Gertrude Faison, as his sole heirs.

The last will and testament was duly probated and letters testamentary were granted to the executrix therein named. In due time claims amounting to $ 10,867 were probated and allowed against the estate, none of which have ever been paid. The executrix, as such, remained in possession of the land from the death of the testator until July 1, 1933 without any payment of either principal or interest having been made on the bonds, and no taxes were paid on the land by her after the year 1929. In the meantime, on April 6, 1931, the entire 1878 acres of land were sold to individuals for the 1930 taxes due and delinquent thereon, and in April 1932 this land was again sold for the 1931 taxes to the State of Mississippi. The period of redemption from the tax sale made on April 6, 1931, for the 1930 taxes, was to expire on April 6, 1933, and the amount required for its redemption amounted to the sum of $ 3,681.93. The record discloses that prior thereto the executrix had made every effort, acting by herself and through local attorneys, to obtain funds to make this redemption, but was unable to obtain any part thereof; and, failing in such redemption, the title to said land would have matured on April 6, 1933, in the individual tax purchasers, and all title thereto would have been lost both to the holders of the bonds secured by the deed of trust hereinbefore mentioned and to the devisees of the land under the will. It was also shown that the executrix was without money with which to complete the crop on the land for the then current year. When this situation developed ...