Fauntleroy v. Mardis, 85 So. 96

Fauntleroy v. Mardis

85 So. 96 | Miss. | 1920

Sykes, J.,

delivered the opinion of the court.

The appellants, as the widow and minor children of Frank B. Fauntleroy, deceased, brought suit by bill-in chancery court to set aside a trustee’s deed to lands owned by the deceased and purchased at the trustee’s sale by Frank Junkin, appellee. The case was heard on pleadings and proof, and the bill dismissed, from which decree this appeal is prosecuted. It will be unnecessary to set forth fully all of the allegations of the pleading and the testimony in the case. The material facts necessary for an understanding of this opinion are briefly stated as follows: (

The deed of trust under which the land was sold provided, among other things, that the “trustee shall . . . proceed to sell and convey to the highest and best bidder for cash all of the above described property, after first giving notice of the' time, place, and terms of the sale according to law. ’ ’

*366Since the deed of trust provided that the sale must be for cash, then the terms of the sale were provided for, and the sale was therefore to be made under section 2772, Code of 1906., as amended, the final amendments appearing in section 2276-, Hemingway’s Code. The trustee’s deed recites that the property was advertised for sale “by having written advertisement published for three consecutive weeks in the Fayette Chronicle, a newspaper published in Fayette, Miss., and did further post a copy of said notice of sale at the easterly door of the courthouse of Jefferson county, Miss., on the 29th day of July, 1914, where the same remained so posted until this day.” The property was sold on Monday the 24th day of August, 1914. Before, the trial the bill of complaint was amended so that it charged that the sale was void because no notice of the time, place, and terms of sale was posted for the proper time at the courthouse- in Fayette, Miss. This allegation was denied by the amended answer of defendants.

The testimony in the case shows that after the death of Mr. Fauntleroy letters of administration upon his estate were taken out by his widow that in this administration proceeding she was represented-by Mr. L, T. Kennedy and M(r. L. L. Posey as attorneys. She continued to consult with Mr. Posey with reference to the sale of the land under the deed of trust. Mr. Kennedy was the trustee and made the sale. The testimony relating to the failure of the trustee to post a notice at the bulletin board is uncontradicted. Mr. Posey was the only witness introduced by either side on this fact. He testified that he posted the notice of the trustee’s sale on the bulletin board at the request of Mr. Kennedy; that he received this notice from Mr. Kennedy the latter part of July; and that he posted it “somewhere about the 10th of August.” He was then asked if that was- the only notice on the bulletin board, and his answer was, “Yes, sir,” and that that' was the only notice he filed and posted. He was later on *367again aslced if that was the only notice that was posted on the bulletin board to which he answered, “Yes, sir. ’’ The defendants introduced no testimony whatever to controvert this testimony of Mr. Posey, but relied upon the recital in the trustee’s deed that such notice was posted on the 29th day of July. Under this positive testimony - of Mr. Posey we think the presumption in the trustee’s deed disappeared, and, in the absence of any proof to the contrary, it affirmatively appears that the notice of the sale of these lands was not posted upon the bulletin board three weeks "preceding the sale of the land. ¥e are therefore called upon to construe that part of section 2276 of Hemingway’s Code (section 2772', with amendments, Code of 1906) which reads as follows:

‘ ‘ Sale of said lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper publshed in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated, for said time, and such notice and advertisement shall disclose the name of the mortgagor or mortgagors whose property is advertised for sale.”

We think the proper construction of this sentence is that the clause beginning “and by posting one notice at the courthouse,” etc., is an additional method of advertising the sale of the lands, and applies both to where the lands have been advertised in a newspaper published in the county, as well as to where none is so published, and the newspaper advertisement has to be made in a newspaper having a g’eneral circulation therein. The various clauses of the sentence are all separated by commas. The entire purpose and intent of the sentence is to give ample advertisement to the sale of lands both by publication in a newspaper and by posting a notice at the courthouse door. The notice at the courthouse is required to be posted in both instances and constitutes a part of both advertisements.

*368While this precise question has not been presented to the court for-decision where the point was at issue, this court, in dealing with this section in the case of Wilczinski y. Watson, 110 Miss. 86, 60 So. 1009, has clearly foreshadowed how the question would be determined by the court if presented. In speaking of this statute, in this opinion by Stevens, Justice, it is said:

“The statute was designed, among* other things, to give due publicity to sales under deeds of trust by requiring a reasonable notice of sale, the posting* of one notice at the courthouse door of the county where the land is situated, and pubilcation in a newspaper of that county- — -wise provisions calculated not only to give due notice to the owner of the lands but also to prospective bidders.”

This section of the Code further pr-ovides: “No sale of lands under a deed of trust or mortgage shall be valid unless such sales shall have been advertised as herein provided for, regardless of any contract to the contrary. ’ ’ It is contended by the appellee that, even though no notice AVere posted at the courthouse door, and that s-uc-h notice is necessary, yet the sale shall not be invalidated, because the notice is not a part of the advertisement, and that the sentence above quoted only invalidates sales which have not bieen advertised. This section, however, provides that sales of lands shall be adAmrtised “in' a newspaper . . and by posting one notice at the -courthouse,” etc. The posting of the notice constitutes a part of the advertisement.

The testimony in the case also shows that Mrs. Fauntleroy was left in possession of the property after the sale for about a year and a half. She claimed to have an oral ageement Avith the appellee, Frank Junkin, by which she had some interest in the property. The question of giving possession of the -property to Mr. Junkin came- up at which time the following receipt was signed by Mrs. Faun-tleroy;

*369“Know all men by these presents that whereas, my -late husband, F. B. Fauntleroy, was largely indebted to Frank Junkin of Adams county, Miss., which said indebtedness was secured by a deed in trust on all the lands and considerable personalty owned by the said Fauntleroy, deceased; and whereas, the said Fauntleroy died intestate and insolvent, and the said Frank Junkin Was forced to foreclose and did foreclose said deed in trust, and became the purchaser at the sale thereof at a price far less than his deed in trust on the same; and whereas, the said Frank Junkin, on account of his friendship for my deceased husband and his family, has not only given to me for them certain stock, but has allowed us to remain on said property for more than one year after said sale, ■without the payment of rent or any amount whatever ; and whereas, he now demands possession of the property which he has owned for more than one year, and offers to give me for myself and children- the sum of one thous- and dollars in cash, rather than give us free use of his place for another year: Now, therefore, this is to acknowledge that the said Frank Junkin, has this day given me the said' sum of one thousand dollars upon the conditions above set forth. Witness my signature this the 3d day of Jan., 1916.

“[Signed] Mrs. Eddie Fauntleroy.”

It was testified to by Mrs. Fauntleroy that it was understood and agreed that this money was paid her in order that Junkin might get possession of the property, and that at that time she told Junkin that she claimed title to the propertv for herself and for her minor children.

We see nothing in this receipt to estop Mrs. Fauntleroy from asserting her rights in this proceeding. The receipt merely recites the foreclosure of the deed of trust and that appellee Junkin, on account of friendship, had given'appellants certain stock, and had allowed them to remain on the property more than a year after the sale without the payment of any rent. It receipts him for the one *370thousand dollars paid her at that time. By this receipt she in no way admits that the trustee’s sale was valid' nor disclaims any title or interest in the property. Consequently there is no estoppel arising therefrom which prevents Mrs. Faumtleroy from asserting her equity in this property.

We omitted to state that the 'chancellor found as a fact that there was no posting of the notice at the courthouse door, hut held that no such posting was necessary where the sale had been advertised in a paper published in the county.

The decree of the lower court is reversed, and a decree will be entered here setting aside the trustee’s sale, and the cause remanded for further proceedings.

Reversed and remanded.