Melsheimer v. McKnight

46 So. 827 | Miss. | 1908

Mates, J.,

delivered the opinion of the court.

It is our view that the demurrer should have been overruled. In so far as is shown by the bill of complaint, whieh is admitted by the demurrer, the sale of March 10, 1903,- was a valid sale and conveyed a good title to the purchaser. The deed of trust provides, in case of default being made in the payment of the debt secured, thereby making it necessary to sell the property, that the trustee “shall sell said property and land, or a sufficiency thereof, to satisfy the indebtedness aforesaid then unpaid, at Halpin Station, in said county, notice and manner of ■sale to be as provided by law where no provision is made in the contract.” By the terms,of the mortgage contract Code 1892, § 2484, is to be operative in the enforcement of the contract to the extent specified; that is to say, the notice of sale shall be as required by the statute, and the manner of sale shall also be according to the statute. These are the only two elements of the contract left to the control of the statute for enforcement. Code 1892, § 3486, providing how notice of sales shall be given, requires advertisement in a newspaper published in the county for three consecutive weeks. The allegations of the bill show more than a compliance with the statute on the subject of notice. Therefore this question is eliminated from the discussion.

The manner of sale is fixed by Code 1892, § 3489. By this section the sale must be made at auction to the ■bigbest bidder for cash, not sooner than. 11 o’clock in tbe forenoon nor later than 4 o’clock in the afternoon. Tbis is tbe manner in which tbe sale is to be made by incorporating into tbe contract tbe statute, and tbe bill shows a compliance with tbis requirement, unless it can be said tbat tbe manner of sale mentioned in tbe contract necessarily includes tbe other element of tbe statute which fixes tbe time of sale; tbat is to say, tbe particular day of tbe month on which all sales made by law are to take place. We cannot agree tbat a correct interpretation of tbis contract makes it necessary, not only to give tbe same notice and to make the sale in tbe same way that tbe law requires, but also to require tbat tbe sale be made on no other day of tbe month than tbe one designated by law for sales of land under •execution. Tbe contract expressly limits tbe operation of tbe statute to tbe two things named; that is, notice and manner of •sale. Manner of sale in tbis contract only means tbat tbe statute shall control as to tbe hours within which tbe sale shall be made, and tbat tbe property shall be sold at public auction to the bigbest bidder for cash. Tbe place where tbe sale shall be made is named in tbe contract, and tbe day on which it shall "be made constitutes no part of tbe manner of sale named in tbe contract, but is left to tbe discretion of tbe trustee to- name, provided, only, tbat tbe day named shall be after tbe time it is re•quired tbat tbe notice shall be published.

Tbis deed in trust is not silent either as to tbe place or terms of sale within tbe meaning of Code 1892, § 2484. Tbe place is named expressly, and tbe terms of sale are fixed in tbe contract, as provided for in Code 1892, § 3489. Therefore by tbe contract both tbe place and terms of sale •are fixed, and tbe day of tbe month on which tbis sale shall take placéis left in tbis contract to fixation by tbe trustee after proper notice. It did not have to be on tbe first Monday -of any month in order to be valid, and, of course, it was unnecessary tbat it be made on tbe first Monday or Tuesday of a term'of the circuit court of the county. There could be no reason for this last requirement, since a circuit court is not held at Halpin Station at any time.

No precise rule can be framed by which it may always be determined in all cases the exact meaning of the word “manner,” etc., when used in a contract or statute. The particular-contract or statute in which it is used must always be examined, and its meaning’ determined in the light of same. In Bankers' Life Ins. Co. v. Robbins, 59 Neb., 174, 80 N. W., 484, it is said: “The manner of doing a thing has reference to the way of doing — to the method of procedure — and the element of time does not seem to be involved.” In United States v. Morris, 1 Curtis (U. S. C. C.), 23, Fed. Cas. No. 15,815, it is said: “Generally the time of doing an act and the manner of doing an act are distinct things.” See, also, Goodman v. Durant, 71 Miss., 310, 14 South., 146; Williams v. Dreyfus, 79 Miss., 245, 30 South., 633.

We do not deem it necessary to discuss the other questions, raised by the demurrer, further than to say that the-appellant is not affected by the judgment in ejectment, rendered against the tenant of a tenant, since she had no, notice of the suit in anyway and was not made a party to same.

The case is reversed and remanded, with leave to answer within thirty days from date mandate is filed in the court below.

Reversed.