Dunton v. Sharpe

| Miss. | Mar 15, 1893

Campbell, C. J.,

delivered the opinion of the court.

The failure of the creditor to formally declare the whole debt due did not render its action, dealing with the notes and security according to its custom in such cases, nugatory, and that was quite sufficient. It spoke louder than words, and fully authorized its representatives in America to proceed with the collection of the debt in accordance with the deed of trust.

The personal attendance of the trustee at the sale was not necessary. It was allowable for him to act through others in advertising and auctioning the land. All that was neces.sary, was to comply with the deed of trust, and, if this was done wi.th the sanction and approval of the trustee, it was as if done by him in person.

The fact that Mr. Scott, who represented the trustee in advertising and selling, was empowered to bid a sum named for Mr. Dunton, did not incapacitate him to make the sale. This was no disadvantage to the grantor in the deed of trust, but the contrary, for, but for this, it appears that the land would have been sold for far less than it brought.

Thére is nothing to show that Dunton was instrumental in procuring 'the sale, or that he had any connection with it, except to buy the land at a fixed price he was willing to pay. The laud was bid off' for him at the sale for taxes, on the first Monday of March, three months after default in payment of the interest, due December 1, 1883. Why he thus purchased is left to conjecture. It seems probable that it was assumed that, as default had been made, the land would be sold for the debt, and, in anticipation of becoming its purchaser at a sale under the deed of trust, it was purchased at the sale for taxes; but, whatever the explanation, there is in this circumstance no ground for condemnation of Dunton’s purchase at the sale in June.

It appears that the sale was made just after a disastrous overflow, with all the disadvantageous incidents of such a condition, and that the grantor asked for delay; but her default as to taxes and interest occurred before the overflow, and there is no grouud for the belief that she would have averted the sale if the overflow had not occurred. It rather seems proba'ble that she would not, as she failed, during the fall and winter preceding, to provide for the payment of taxes and interest then due or maturing.

There is nothing to suggest that the sale was not advertised as required. The complaint of the bill is, not that the time and place of sale were not duly advertised, by required notices properly posted, but that it was not done by the proper person. There is no allegation that the required notices were not given, and that was not a matter of dispute in the court below. If it had been, the conclusion is fully warranted that the complainant has no ground for complaint on that score. Contemporaneously with the sale, she did not make any such complaint, and cannot successfully make it now. She knew of the sale; sought to have it postponed; after it was made, endeavored to purchase the land, and, failing, threatened to contest the sale as invalid, on specific grounds other than a failure to give the prescribed notice. There was never a hint as to that. Therefore, upon the facts, independently of any presumption from the recitals of the deed made to Dun ton, it may be assumed that there was due notice of the sale, as required by the deed of trust.

The utmost good faith, fairness and impartiality must characterize the execution of a power of sale in a deed of trust, or else the grantor may, by timely complaint, have it set aside. Tried by the highest standard, we have failed to discover in the facts of this case any ground for criticism of the sale or the action of any participant in it. We see in it nothing but the common occurrence of an unfortunate-and helpless debtor, bound by a deed of trust duly executed, making impotent efforts to satisfy the creditor or obtain delay, and a creditor deaf to all appeals, and intent on dealing with the security given by the debtor according to its terms. Of this the debtor has no legal cause of complaint. To this end the deed of trust was made. Her misfortune in suffering the sacrifice of valuable property (pitiable as it may be, and exciting our sympathy), is but the experience of multitudes, and furnishes another instance of the truth of the saying of the wise man thousands of years ago, and as true now as then : “ The borrower is servant to the lender.” While sympathy may be indulged for debtors, the just rights of creditors must be upheld, and purchasers .of property sold under deeds of trust must be protected in their legal rights. This is for the interest of debtors and all others.

The result would have been the same if the bill had been promptly filed, instead of more than five years after the sale. The delay is suggestive, but we decide the case without re gard to that, although it is a circumstance often of great weight in eases iike this, and might be decisive in some cases on the question of acquiescence. The notice of purpose to contest the sale, given by the appellee soon after it was made, was on a specific ground, the only one then known to her or her solicitor, and did not relate to any other. The fact that Scott managed the sale, and bought for Dunton, and that the land was purchased by Dunton at the sale for taxes and that under the trust-deed, and that conveyances were made to him, were known, or might have been, contemporaneously. These matters were not concealed, hut occurred openly. Nothing else is known now. The charge that Dunton procured the sale, or had any connection with it, except as buyer, is denied, and not sustained.

As we uphold the sale made to Dunton, it is not necessary to consider separately the attitude of Field, who purchased from him, and whose rights are protected in upholding the sale to his vendor.

Decree reversed, and bill dismissed at the cost of the appellee in both courts.