Lynchburg Shoe Co. v. Castleman

76 So. 878 | Miss. | 1917

Stevens, J.,

delivered the opinion of the court.

One point presented on this appeal — that is, the sufficiency of the publication of the notice of the trustee's sale under which appellees claim title — is controlled and disposed of by the opinion in the companion case of J. Albert Lake et al. v. Pauline Castleman, 76 So. 877, No. 19796. The issue in this case was presented by a bill of complaint exhibited by appellant, the Lynch-burg Shoe Company, against appellees, Pauline Castle-man, Solomon and Frieda-Davidow, N. W. Sumrall, and others, to set aside the foreclosure of a deed of trust under which appellee Mrs. Castleman claims. The bill charges fraud and collusion against appellees, Mrs. Castleman and N. W. Sumrall, trustee. The additional point made in this case is the contention that the trust deed was silent as to the time, place, and terms of sale, and, being silent, section 2821, Code of 1906, applies, and by virtue of the provisions of section 2821, the sale should have been made on the first Monday of a month, or at least on the Monday or Tuesday of a term of court, as provided by section 3084, Code of 1906. The provision of the trust deed in question reads:

“The trustee herein may take possession of said property and sell the same at public outcry, after giving legal notice of the time, place, and terms of the sale in tlie county in which the property is located.”

It is the contention of appellant that under this provision the trust deed is silent as to the place and terms of sale and mode of advertising, and that the sale here attacked, having been made on the last day of the month; instead of the first Monday, is void. The chancellor dismissed the bill, and accordingly decided againsx appellant on the facts.

The alleged fraud in this case was not proved and the decree of the learned chancery court cannot be reversed on that ground. In foreclosing, the trustee fully complied with section 2772, Code, of 1906, so far as the provisions of that section are applicable. If we follow the decision of our court in Goodman v. Durant B. & Loan Ass’n, 71 Miss. 310, 14 So. 146, the trustee in this case was empowered to fix the time for the sale. The trust deed is not silent as to the place and terms of sale and mode of advertising. Since the enactment of section 2772, the trustee must of course comply with this statute providing how land should be sold under mortgages and deeds in trust. It is not contended that he failed to comply with this section, and, having the delegated power to name the time for the sale, there is no infirmity in appellees’ title.

Affirmed.