Opinion
No. 29443.
May 12, 1931.
1. CONTRACTS, MORTGAGES. Deed of trust, which provided for foreclosure sale at east front door of courthouse, required sale at main entrance of new courthouse, though main entrance now faced north; court will give effect to dominant portion of clause as against subordinate conflicting portion.
Where a deed of trust provided for a sale of the property therein conveyed on default at the east front door of the county courthouse in the First judicial district of Hinds county, and at the time of the giving of the deed of trust the main entrance of the county courthouse was the east front door, but after the giving of the deed of trust and before default was made therein the courthouse was moved to a new site, and the main entrance of the new site was the north door of the county courthouse, the trustee should select the main entrance of the courthouse as the place of sale, as the dominant purpose of the fixing of the place of sale was to have the sale made at the main entrance of the courthouse where other deed of trust sales and where judicial sales were made. In such case the court will give effect to the dominant provision of the clause as against a subordinate or subsidiary clause, where both cannot be given effect.
2. MORTGAGES. Trust deed providing for sale at courthouse means new building used as courthouse at time of default and sale.
A deed of trust providing for sale at the county courthouse means the county courthouse as it stood at the time of the default and the advertisement and sale of the property, and not in the original building from which the county court business and officers had removed.
APPEAL from chancery court of Hinds county, First district; HON. V.J. STRICKER, Judge.
Wm. Hemingway, of Jackson, for appellants.
Appellants admit that a sale free of doubt is vital, that under any condition the payments made will be lost, therefore, a sale which would be doubtful would not produce enough money to pay the balance due the Appellees, and further, if there should be an excess paid, that at some time in the future the sale might be overthrown, and financial loss caused.
There is no precedent in this state to guide at this time, and the court is requested to note that in many of the cases the court states that the matter is doubtful, and also that a majority, if not all of the cases, have been where there was no objection to a change of the place, and no injury resulted from such a change.
Code of 1930, section 2169, applies only where the parties have not specified "the place and terms of sale and mode of advertising." Such details have been fully given in the deed of trust made an exhibit to the bill. The deed of trust is a contract and the parties contracted as to the sale and its details.
Goodman v. Durant, 71 Miss. 310, 14 So. 146; Williams v. Dreyfus, 79 Miss. 240, 30 So. 633; Melsheimer v. McKnight, 92 Miss. 386, 40 So. 827; Davis v. O'Conner, 92 Miss. 348, 47 So. 672; Polk v. Dale, 93 Miss. 664, 47 So. 286; Lynchburg Shoe Co. v. Castleman et al., 116 Miss. 188, 76 So. 878; Butler v. R.B. Thomas Co. et al., 150 Miss. 804, 116 So. 824.
When the mortgage or deed of trust, or the notice of sale specifies the place of sale, the sale must be had at that place, in the absence of a consent by the mortgagor fixing another place.
41 Corpus Juris, 967, and notes 4, 5, 6 and 7; Kelly v. Skates, 117 Miss. 886, 78 So. 945.
If the power contains the details, the parties have made them important, and no change can be made even if the mortgagor would be benefited thereby, nor if a statute provides a different manner.
Perry on Trusts, section 962; Palmer et al. v. Latham, 173 N.C. 60, 91 S.E. 625.
The trustee derives his authority from the deed of trust and must follow its terms in the notice of sale.
Watkins, Watkins Eager, of Jackson, for appellees.
The new courthouse and not the building occupied as a courthouse at the time the deed of trust was executed was the proper place of sale.
41 C.J., section 1414, page 967; Peyton et al. v. McPhaul, 11 Ann. Cas. 163, 166; Hambright v. Brockman, 59 Mo. 52; Napton v. Hurt, 70 Mo. 497; Davis v. Hess, 103 Mo. 31, 15 S.W. 324; Riggs v. Owens, 120 Mo. 176, 25 S.W. 356; Snyder v. The Chicago, etc., Railway Co., 131 Mo. 568; Alden v. Goldie, 82 Ill. 581; Wilhelm v. Schmidt, 84 Ill. 183, Waller v. Arnold, 71 Ill. 350.
The north main door of the new courthouse and not the east entrance of the building was the proper place of sale.
Hickey v. Behrens, 75 Tex. 488, 12 S.W. 679.
The appellant filed a bill in the chancery court of Hinds county, Miss., praying an injunction to restrain the Magnolia Building Loan Association and W.H. Watkins, trustee in a deed of trust in favor of said building and loan association given by George Miller and Susie Miller, appellants herein, to secure an indebtedness due the building and loan association, which deed of trust provided that, if default was made, the property should be sold at public auction for cash before the "east front door of the county court house of the First Judicial District of Hinds county," etc. The notice for sale by the trustee after default in payment stated that the sale would take place during legal hours at the front door of the county court house in Hinds county, at Jackson, Miss. The deed of trust was given when the old county courthouse was being occupied, and the main entrance, or front door thereof, fronted east, and all public or judicial sales made at the old courthouse either by law or under contract were made at the east front door thereof. Before the deed of trust in the case at bar became in default, and before the advertisement of the sale was made, the new courthouse was built and occupied, and its main entrance faced north, the new courthouse being built upon a different lot or place, and the county officers and courts had moved into said new courthouse. The board of supervisors had passed an ordinance in reference to judicial and other sales conducted under orders of the courts, etc., stating that they should be conducted at the main entrance of the new courthouse at the new location thereof. This, of course, did not undertake to provide for contracts stipulated in deeds of trust. It does not appear that there is any east entrance into the main departments of the new courthouse, the main entrances facing north and south.
It is contended here that, the sale being advertised as it was, and the contract stipulating that the sale was to be made at the east entrance of the county courthouse, confusion would arise in the mind of bidders, and that they would fear to bid because of the rule of strict construction which is applied to sales en pais under deeds of trust, and the probability that the property would not bring the amount of the debt, and that the grantor in the deed of trust would suffer thereby and lose his property; and, perhaps, suffer judgment for the balance due.
The chancellor refused to grant the injunction prayed for, and appeal was taken from that order.
We are confronted with the purpose and meaning of the stipulation in the contract. It appears that the dominant purpose of the stipulation is to have the sale made at the courthouse, meaning the courthouse in existence at the time the sale should be conducted, and that the provision as to the east front door is a subordinate provision to the main dominant provision. It was manifestly the purpose of the parties to have the sale conducted at the courthouse, and at that part of the courthouse where similar sales were usually made, and at such part where people generally entered the courthouse for business purposes. It would be detrimental, rather than beneficial, to grantors, to have the sale conducted on the east side of the new courthouse rather than on the north side. The main entrance is where people generally enter a courthouse.
The provision as to the time and place of sale, etc., was, of course, for the benefit of both parties, but primarily for the property owner whose property is to be sold. It is designed to make the property bring as high a price as a public sale will afford; and, certainly, where people are liable to be when the sale is to be made.
We are satisfied that a sale at the north entrance complies with the intent of the contract, although it does not strictly comply with the letter in all respects. It does comply with the requirement that the sale be made at the courthouse, and, as held before, this was manifestly the dominant idea in conducting the sale. It, of course, meant a house where courts and county officers are located and do business, rather than an abandoned building which had formerly been held for court purposes and county offices, but where now no public business is ever conducted.
After full consideration, we are of opinion that the court below committed no error, and the judgment will be affirmed.
Affirmed.