Opinion
No. 36137.
May 27, 1946.
1. EQUITY.
In suit to set aside foreclosures of deeds of trust and respective trustee's deeds for alleged erroneous description of land in notice of sale, bill alleging that the trustee failed to advertise described land which was part of security conveyed by the trust deed was good against demurrer.
2. MORTGAGES.
The typewritten interlineation of the phrase "according to law" in deeds of trust above the language "posted at least ____ days" superseded the entire printed provisions as to advertisement, so that only such advertisement of foreclosure sale as was required by law in force when deed of trust was executed and foreclosed was necessary.
APPEAL from the chancery court of DeSoto county, HON. V.D. ROWE, Chancellor.
Kenneth Rayner and L.E. Farley, both of Memphis, Tenn., for appellants.
The statute specifies a minimum requirement in the foreclosure of mortgages or deeds of trust under a power of sale.
Code of 1930, Sec. 2167 (Code of 1942, Sec. 888).
The method of foreclosure required by the statute is not exclusive; the parties may contract for additional requirements, provided same are not contrary to the statute.
Wilczinski v. Watson, 110 Miss. 86, 69 So. 1009.
Powers of sale in a mortgage or deed of trust are contractual, and the mortgagee or trustee is held to compliance with the letter of the contract, where same contains valid requirements not in conflict with the statute.
Wilkinson v. Federal Land Bank of New Orleans, 168 Miss. 645, 150 So. 218; Wilczinski v. Watson, supra.
Where there is a conflict between written (or typewritten) and printed parts of a contract, the written (or typewritten) parts prevail over the printed part; but this rule applies only where there is irreconcilable conflict between the written and printed parts. In the absence of such conflict, the principle prevails that the contract should be so construed as to give effect to every word and expression contained therein, it being presumed that the instrument contains no clauses not intended by the parties.
Hardie-Tynes Foundry Machine Co. v. Glen Allen Oil Mill, 84 Miss. 259, 36 So. 262; Kratzenstein v. Western Assurance Co. 116 N.Y. 54, 22 N.E. 221, 5 L.R.A. 799; 17 C.J.S. 707, Sec. 297, pp. 729, 730, Sec. 310.
Advertisement of foreclosure sale must correctly describe the land to be sold, and if any tract thereof is misdescribed the entire proceeding and the trustee's deed thereunder are void.
Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3.
R.F.B. Logan, of Hernando, for appellee, J.W. Pounders, Sr.
Exhibits filed with a bill, as a part of it, shall be considered, on demurer, as if copied in the bill.
Code of 1942, Sec. 1285.
Where conflict between an exhibit and allegations of bill arises, the former control.
North American Life Ins. Co. v. Smith, 178 Miss. 238, 172 So. 135.
There are blank spaces in both of the trust deeds and the law is that a writing is incomplete as an agreement where blanks as to essential matters are left in it, unless that can be supplied from other parts of the writing itself, or unless and until such blanks are lawfully filled.
Lore v. Smith, 161 Miss. 579, 133 So. 214; Williams v. Crutcher, 5 How. (13 Miss.) 71, 35 Am. Dec. 422; 13 C.J. 308.
Lore v. Smith, supra, was the law of this case at the time of both said foreclosures; and if this Court should now overrule Lore v. Smith it would be effective only from the date of such overruling and cannot effect the foreclosures of the two trust deeds involved in this lawsuit.
We invoke the rule of stare decisis.
Chenault v. State, 154 Miss. 21, 122 So. 98; Village of Zama v. Ayers Separate School District, 120 Miss. 444, 82 So. 313; New York Life Ins. Co. v. Boling, 177 Miss. 172, 169 So. 882, 111 A.L.R. 967; Childress v. State, 188 Miss. 573, 195 So. 583; Pruitt v. Dean, 198 Miss. 71, 21 So.2d 300, 916.
This is the same case that was before this Court on the former appeal, with the exception that the proof of publishing and posting notice has been supplied by appellant's exhibit "3" to their last amendment. We respectfully insist that no valid reason or argument has been offered to justify this Court in reversing their former decision in this case.
Pruitt v. Dean, supra.
Gerald Chatham, of Hernando, for appellee, S.B. Dean.
No question not decided in the previous appeal has been raised, and said appeal should now be dismissed, or the action of the lower court affirmed.
Pruitt v. Dean, 198 Miss. 71, 21 So.2d 300, 916; Griffith's Chancery Practice, p. 821, Sec. 698, p. 824, Sec. 700.
Argued orally by Kenneth Rayner, for appellants, and by R.F.B. Logan and Gerald Chatham, for appellees.
This cause comes for the second time to our docket. Appellants filed their bill to set aside two foreclosures of deeds of trust and the respective trustee's deeds. The facts appear in our former decisions. 198 Miss. 71, 21 So.2d 300, 21 So.2d 916.
The former cause was remanded, thus allowing appellants an opportunity to show that the posted advertisement or notice of sale erroneously described the lands. In our opinion upon suggestion of error ( 198 Miss. 71, 21 So.2d 916), it was made clear that upon remand complainants could make such amendments to their bill as they were advised were proper.
Upon the second trial, the cause was heard upon an amended bill which alleged that "The said trustee omitted and failed to advertise, sell or convey said West Half of Northwest Quarter of said Section 29, which was part of the security conveyed by said trust deed." This allegation taken in connection with the full context of the bill as amended made it secure against demurrer. Yet, the allegation was supported by an exhibit which disclosed the trustee's deed and the proof of posting notice. The former reveals that the lands conveyed were erroneously described. The latter alleges that the posted notice of sale described the lands as those in the trustee's deed (which was an erroneous description) and also as those set forth in the newspaper notice (a correct description). We see at once that the exhibit whose function is to aid and clarify the allegations of the bill, serves, by its self-contradictions, only to confuse. The only issue remaining is whether the posted notice correctly described the lands. The defendants were therefore compelled to meet the allegations of the amended bill as to the establishment of which the complainants were entitled to their day in court.
The contention is again made that the interlineation by typewriter of the phrase "according to law" in the deeds of trust leaves unimpaired the contractual requirement that notice of foreclosure be posted at three public places. But for the amended bill which, by attaching photostatic copies of the original deeds of trust, shows insertion of the quoted phrase at positions different from those formerly assumed by us, the appeal here would constitute but an additional suggestion of error.
The corrected record now shows that the cited phrase was however inserted substantially at the point indicated in our former opinion in the Tipton deed of trust. In other words, both deeds of trust now are in the same aspect and our conclusion that the location of the insertion above the language "posted at least ____ ____ ____ days" superseded the entire printed provisions as to advertisement, requires us to affirm the chancellor's decree sustaining the demurrers on this ground. As before, however, we remand the cause for further hearing upon the issue raised by the complainants' contention that the posted notice of the lands in the Tipton deed of trust incorrectly described the lands.
Reversed and remanded.