53 Miss. 307 | Miss. | 1876
delivered the opinion of the court.
The plaintiffs in error executed a deed of trust conveying land to J. C. Bogle, as trustee, to secure a debt to T. T. Bonner. The condition of the deed of trust is in these words, viz.: “ Should said parties of the first part fail to pay and to satisfy said note at maturity, then it shall be the duty of the party of the second part (trustee), at the request of the party of the third part (Bonner), after giving thirty days’ notice of the time and place of sale, by posting the same in three or more public places in said county and State, to proceed to sell at public auction for cash in hand to the highest bidder all the described lands,” &c. The debt matured and was not paid. Bonner, the beneficiary, had died, and an administrator of his
Many questions were made in the trial below, which have been discussed in the brief of the counsel for the plaintiffs in error with a wealth of learning and profusion of citations rarely surpassed; but we do not consider it necessary to notice the questions in detail, since we think the true point in the case was missed in the trial below, and the result reached upon a misconception of the real question which disposes of the case. Some of the charges by the judge to the jury given at the instance of the plaintiffs and the defendants were erroneous ; but the plaintiffs in error had the benefit of more errors in their favor than the defendants did. We will not
It is insisted that the notice at the post office was not sufficient, because the door was closed every Sunday after 10 o’clock, A. M. This made no difference. The law does not contemplate that notices of sales will be inspected on Sunday. It is urged that the court house and post office were in the same town, and within one hundred and fifty yards of each other, and that they were not two public places. This objection is not valid. Three different places of public resort, where people would be likely to see the notices and learn of the sale were meant by the terms employed in the deed of trust. Much must be left to the discretion of the trustee as to the selection of places at which to post notices. If one hundred and fifty yards is too short a distance to separate two public places, what space shall be adopted as being great enough ? The law has no rule on the subject. We think that the sale was valid, and that a proper result was reached in the trial, although by a different method from that indicated by this opinion, and as upon the facts of the case the defendants in error were entitled to the judgment they obtained, it is affirmed.