3 So. 2d 351 | Miss. | 1941
Lead Opinion
Mrs. Thella McClellan borrowed a sum of money from W.I. Hancock and to secure the same gave him her note secured by deed of trust on 159 1/2 acres of land owned by her. Hancock has since died and Pyle is the administrator *561
of his estate. Default was made in the payment of the indebtedness resulting in a foreclosure in pais. At the sale Hancock became the purchaser and received the trustee's deed accordingly. He died afterwards. Mrs. McClellan filed the bill in this case against Hancock's administrator and his heirs seeking to set aside the foreclosure sale upon the ground that it was void. Hancock went into possession of the land under his purchase and thereafter received the rents and profits therefrom and sold timber off the land. Mrs. McClellan seeks to recover such rents and profits and proceeds of sale of timber. Hancock's administrator and heirs, in addition to the defense that the foreclosure was valid, makes the contention that the claim for rents and proceeds of sale of timber is barred by Section 1672 of the Code of 1930 which provides that claims against the estate of a deceased person not probated within six months are barred. The evidence shows that this statute was not complied with. The chancellor held with Mrs. McClellan on both of these propositions. This is an appeal from that decree. This is the second appeal of the cause to this Court. See Hancock's Estate v. Pyle,
The land actually owned by Mrs. McClellan and mortgaged to Hancock is described as follows: The northeast quarter of Section 17, Township 8, Range 4 east, less 10 1/2 acres which said 10 1/2 acres are described as beginning at the northwest corner of the said northeast quarter running thence east 42 rods, thence south 40 rods, thence west 42 rods, thence north 40 rods to the point of beginning of said exception. Also the northwest 40 acres of the northwest quarter of Section 16, Township 8, Range 4 east.
It will be observed that the land is located in two Sections, 16 and 17, Township 8, Range 4 east, and that Mrs. McClellan owned the northeast quarter of Section 17, *562 except 10 1/2 acres in the northwest corner thereof, 42 rods east and west by 40 rods north and south.
The land was described in the deed of trust as follows: "The northeast quarter of Section 17, Township 8, Range 4 east, except 10 1/2 acres described as follows: Beginning at the northeast corner of said quarter and run 42 rods east on the line between Sections 8 and 17, thence south 40 rods, thence west 42 rods, thence north 40 rods to the beginning point. Also the northwest 40 acres of the northwest quarter of Section 16, Township 8, Range 4 east."
The land as described in the trustee's advertisement of the foreclosure of Mrs. McClellan's deed of trust to Hancock: "The northeast quarter of Section 17, Township 8, Range 4, except 10 1/2 acres being at the northeast corner of said quarter. Also the northwest 40 acres of the northwest quarter of Section 16, Township 8, Range 4 east."
The land as described in the trustee's deed foreclosing the deed of trust: "The northeast quarter of Section 17, Township 8, Range 4 east, except 10 1/2 acres described as follows: Beginning at the northeast corner of the said quarter and run 42 rods east on the line between Sections 8 and 17, thence south 40 rods, thence west 42 rods, thence north 40 rods to the beginning corner. Also the northwest 40 acres of the northwest quarter of Section 16, Township 8, Range 4 east."
It will be observed that neither the description of the land in the deed of trust, nor in the trustee's foreclosure advertisement, nor in the trustee's deed correspond with the land actually owned by Mrs. McClellan. In the trustee's advertisement the 10 1/2 acres was described as being "at the northeast corner of said quarter"; while the trustee's deed describes it as 10 1/2 acres "beginning at the northeast corner of said quarter and run 42 rods east on the line between Sections 8 and 17, thence south 40 rods, thence west 42 rods, thence north 40 rods to the beginning corner." *563
We are of opinion that the foreclosure was void because the advertisement of the sale incorrectly described the exception of 10 1/2 acres. Yellowly v. Beardsley,
There is no merit in the position that the claims for reasonable rental and the value of timber sold are barred because not probated within the time described by Section 1672, Code of 1930. That statute applies alone to *565
contractual claims and not to those ex delicto. Claims required to be probated are such as if paid by the executor administrator would prima facie entitle him to credit therefor. The rent and timber claims are not of that character. Fled v. Borodofski,
It is contended by Hancock's administrator and heirs that if his estate be administered the Court should determine whether the administration should include the entire estate or only a part of it. We are unable to determine that question from the record in this case. We leave that to the chancellor.
Affirmed and remanded.
Dissenting Opinion
As to the northwest 40 acres of section 16, it was owned by the grantor; it was described in the deed of trust; it was correctly advertised for sale; and was embraced in the trustee's deed. In each instance, as shown by the controlling opinion, it was specifically described as the "northwest 40 acres of the northwest quarter of section 16."
It is true that the deed of trust and trustee's deed, in addition to conveying this 40 acres in its entirety, seek to superimpose thereon a description purporting to cover 10 1/2 acres as an exception from section 17, but describing an area by metes and bounds in the northwest corner of section 16; nevertheless, the purported exception is shown to be a part of the description of "section 17, township 8, range 4 east, except 10 1/2 acres described as follows: Beginning at the northeast corner of said quarter and running 42 rods east on the line between sections 8 and 17, thence south 40 rods, thence west 42 rods, thence north 40 rods to the point of beginning." Therefore, it is manifest that while the exception is void as describing part of the northeast quarter of section 17, it is neither sufficient to except 10 1/2 acres in the northwest 40 acres of section 16, for the reason that it is obvious that the draftsman was thereby undertaking to except a part of the northeast quarter of section 17, since immediately following the purported exception the whole of the northwest 40 acres of section 16 is conveyed in both the deed of trust and the trustee's deed, and the same was advertised for sale without any attempt to make an exception therefrom.
I am therefore of the opinion that in so far as the northwest 40 acres of section 16 is concerned, the description of a parcel thereof as being a part of section 17, and undertaking to except it from section 17, rendered the exception wholly ineffective as to either, in the absence of *567 a reformation of the instrument; and that therefore the foreclosure was good to convey a valid title to all of the land except as to the 10 1/2 acres not owned by the grantor, and the 10 1/2 acres in the northeast corner of section 17, which was not advertised for sale as aforesaid; that the appellees would not be entitled to recover for rents and profits, and for timber sold from the lands over the period of many years since the sale, other than from the 10 1/2 acres in the northeast corner of said section 17, excepted from the notice of sale.
Roberds, J., and Smith, C.J., concur in this opinion.