Opinion
No. 38129.
December 10, 1951.
1. Deeds of trust — trustee's sale — one tract.
When it is established by the evidence that the land embraced in a deed of trust constituted one tract, the trustee in making sale properly sold it as one tract.
2. Deeds of trust — trustee's sale — mortgagee only bidder — when sale valid.
When there is no claim that there was any collusion between the trustee and the mortgagee and none that the sale was not fair or that there was any fraud therein or that the property did not bring a fair price, the fact that the mortgagee was the only bidder at the trustee's sale did not invalidate it.
3. Deeds of trust — trustee's sale — notice, when sufficient.
Where the trust deed on land provided that notice of a trustee's sale under it should be published and posted for twenty-one days prior to the sale, and notice was published on May 19, May 26, June 2, and June 9 that the sale would be made on June 12 and the notice was posted continuously at the courthouse door from May 19 to the date of the sale, this was a compliance with the trust deed and with the statute which requires such sales to be advertised by publication and posted notice for three successive weeks prior to the sale. Sec. 888 Code 1942.
4. Unlawful entry and detainer — possession by defendant — appeal.
When it was shown by the proof that plaintiff in an action of unlawful entry and detainer had notified the defendants that he had purchased the property at the trustee's sale and they refused to move therefrom, and the entire case was tried upon the assumption that the defendants had possession, the contention by defendants that there was insufficient proof of their possession was not maintainable on appeal.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Jackson County; L.C. CORBAN, Judge.
Thos. J. Wiltz, for appellants.
I. The foreclosure sale upon which the plaintiff stood was void and for the following reasons, to wit:
A. The land was not sold in parcels under the terms of the deed of trust. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714; Hamilton, et al. v. Federal Land Bank, 184 Miss. 878, 186 So. 832.
B. The land was not sold in accord with the statutory scheme, making provision where the deed of trust is silent as to the manner of sale, etc. Secs. 891, 1925 Code 1942.
C. The land was expressly not sold according to the provision of the deed of trust, containing a vague and ambiguous provision for sale after advertising for twenty-one days, and in this connection if it was intended that the sale be advertised one time for twenty-one days, ahead of the sale, such provision meant that the advertisement be made every day for twenty-one days, this condition of the deed of trust was not complied with, and no discretion was vested in the trustee under the terms of the deed of trust. Sec. 888 Code 1942; Lee v. Magnolia Bank, 48 So.2d 515; Jones v. Salmon, 128 Miss. 508, 91 So. 199.
D.N. Byrd did not, in fact, purchase said property at the foreclosure sale, and, in fact, was not even present at said foreclosure sale, said sale having been made under such circumstances in any event in the final analysis so as to render the same null and void.
II. Plaintiff below, and appellee here was not entitled to judgment for the reason that the evidence specifically failed to show that the defendants or either of them were unlawfully withholding the property from the plaintiff. Sistrunk v. Majure, 186 Miss. 814, 192 So. 5.
W.L. Guice, for appellee.
Cited and discussed the following:
Rawlings v. Anderson, 149 Miss. 632, 115 So. 715; Sec. 888 Code 1942; Donald v. Commercial Bank, 132 Miss. 578, 97 So. 12; Weyburn v. Watkins, 90 Miss. 728, 44 So. 145; Lake v. Castleman, 116 Miss. 175, 76 So. 877; Chandler v. Bank of Brooksville, 181 Miss. 529, 178 So. 797; Clark v. Sayle, 208 Miss. 559, 45 So.2d 138; Texas Pacific Coal Oil Co. v. Mulvihill, 200 Miss. 497, 27 So.2d 719.
This is a forcible entry and detainer proceeding instituted by Byrd in a justice of the peace court to obtain possession from the McAllisters of a tract of 58 acres of land. Judgment was there rendered for Byrd for possession of the premises and $50.00 rent, or damages. The matter was heard by the circuit judge by agreement of the parties on appeal to that court. Judgment was there rendered for Byrd for possession and all costs. From that judgment this appeal is taken.
Byrd had sold the property to the McAllisters, who made a cash payment and executed to Byrd a promissory note for $5,100.00, balance of the purchase price, and a trust deed securing the note. The note was payable in installments. The McAllisters defaulted in the installment payments, and, after notice to them, Byrd instructed the trustee to foreclose the trust deed, which was done, and at the sale Byrd was declared the purchaser. The McAllisters admitted default and that they detained possession of the premises. They defended on the ground the foreclosure was invalid because (1) the land was offered and sold by the trustee as one tract, whereas, as they claimed, it consisted of two tracts, and the trustee was under duty to offer them separately, and (2) Byrd did not actually appear at the sale and make a bid, and (3) the property was not legally advertised for sale.
The notices of sale and the trustee's deed appear to be regular and legal. Assuming, but not deciding, that in an action of this character and where the instruments appear to be regular and legal, the validity of the sale may be attacked, which is very doubtful. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 103 A.L.R. 977. (Hn 1) The evidence shows, as to the first contention, that the 58 acres constitute one tract.
(Hn 2) On the second question, the proof is rather uncertain and confusing at just what stage of the sale of the property by the trustee Byrd appeared upon the scene. The sale had been delayed in the hope another prospective bidder would appear. Byrd had informed the trustee the amount he would bid and the trial judge could have found from the evidence that he appeared before the sale ended and before the trustee struck off the property. Since he upheld the validity of the sale we may properly assume he found as a fact that Byrd was present before the sale was closed. There was no other bidder although other persons may have been present. The trustee declared Byrd the bidder and struck the property off to him. It is not claimed there was any collusion between the trustee and Byrd, or the sale was not fair, or there was any fraud therein, or that the property did not bring a fair price at the sale. (Hn 3) On the third point, the trust deed provided for notice of sale to be published and posted for twenty-one days prior to the sale. Section 888, Mississippi Code of 1942, requires such sales to be advertised by publication and posted notice for three successive weeks prior to the sale. Here publication of the notice of sale was made May 19, May 26, June 2 and June 9, 1950, and notice of the sale was posted continuously at the courthouse door May 19th to the date of sale, both giving notice the sale would be held June 12, 1950. This was a compliance with the trust deed and with the statute.
(Hn 4) Appellants' brief suggests there was no proof they were in possession of the premises. Byrd testified he notified them he had purchased the property at the foreclosure sale and they refused to move therefrom. In addition, the entire case was tried upon the assumption appellants had possession.
Affirmed.
Hall, J., took no part in the decision of this case.