Planters Mercantile Co. v. Braxton, 82 So. 323

82 So. 323 | Miss. | 1919

StevbNs, J.,

delivered the opinion of the court.

Appellant as plaintiff instituted this action of ejectment in the circuit court of Wilkinson county to recover possession of approximately fifty acres of land which, it purchased át a trustee’s sale foreclosing a deed of trust, which it as beneficiary held against the defendants, TCia.h and Kitty Braxton. Upon trial there was a peremptory instruction in favor of the defendants, and from the judgment based thereon appellant appeals.

To prove its case appellant introduced in evidence the deed of trust; record of substitution of R. C. Smith as trustee in place of T. Gr. Stockett, the original trustee; and .deed from the substituted trustee to the plaintiff, which exhibits thereto. These exhibits are the notice of sale, proof of publication, and affidavit as to posting a copy at the courthouse. The sale was advertised to be made, and from the recitals of the trustee’s deed was actually made on the first Monday, the 3d day of April, 1916. The trust deed provides that the trustee “shall sell said real estate at auction to the highest bidder for cash upon such notice as required by law for the sale of land.” The proof of publication shows that the notice of sale was published in the Woodville Republication, a newspaper published in Wilkinson county, for four consecutive weeks, and that the dates of these publications are March 4, 11,18, 25, 1916. The plaintiff also introduced evidence tending to show the value of the use and occupation of the premises since the date of the sale by the substituted trustee and the execution of the trustee’s deed in favor of appellant. At the conclusion of the introduction of plaintiff’s testimony there was a motion by the defendants to exclude the evidence and to direct a verdict in appellee’s favor, and this motion was by the court sustained.

Section 2772, Code of 1906 (section 2276, Hemingway’s Code), provides how lands shall be sold under mortgages and deeds of trust, the pertinent provision being as follows:

. “Sale of said lands shall be advertised for three consecutive weeks 'preceding such sale, in a newspaper published 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. No sale of lands under, a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary.”

The motion to exclude the evidence is based upon the ground that the notice of sale was not advertised as required by law, and tbe further contention that tbe land was not sold at tbe place required by law. It is conceded that tbe last advertisement of sale appeared on Saturday March 25, 1916, and that in tbe regular issue of tbe paper of Saturday April 1, 1916, tbe advertisement did not appear, and consequently that nine days elapsed between tbe last publication and the day of sale.

■ Webster’s Dictionary defines “precede” as “to go before in place or order of time. ’ ’ Tbe Century Dictionary defines “preceding” as “to go before in order of time ... to come first in the order of time.” In Crabb’s Synonyms, under tbe title “Antecedent, Preceding,” etc., appears tbe following statement:

“Antecedent and preceding both denote priority of time, or tbe order of events; but tbe former in a more vague and indeterminate manner than tbe latter. A preceding event is that which happens immediately before tbe one of which we are speaking; whereas antecedent may have events or circumstances intervening. An antecendent proposition may be'separated from its consequent by other propositions;.but a preceding proposition is closely followed by another. In this sense antecedent is opposed to posterior; preceding to succeeding.”

Mr. Crabb’s statement is then illustrated by a quotation from Trusler, as follows:

“Tbe seventeen centuries since tbe birth of Christ are antecedent to tbe eighteenth, or tbe one we live in; but it is tbe seventeenth only which we call the preceding one.”

In Cyc. vol. 31, ,p. 1157, “preceding” is defined as “next before.” In Am. & Eng. Ency. of Law (2d Ed.) p. 1171,.under tbe title “preceding,” it is said:

“Although tbe word ‘preceding’ generally means next before, yet a different signification will be given to it if required by tbe context and the facts of tbe case.”

In disposing of tbe present appeal, our special inquiry is to ascertain tbe meaning of tbe phrase “for three consecutive weeks preceding such sale ’ ’ as employed in the statute under review. We conclude, unhesitatingiy, that the language of the statute requires publication to be made for the three weeks next before the day of sale, or immediately preceding the day of sale. The purpose of this mandatory provision of law is obvious. It is designed to give notice of the • approaching sale to the owner of,'and other parties interested in, the lands to be sold, as also to give notice to prospective bidders. If a longer period of time than one week may elapse from the date of the last advertisement and the day of sale, it logically follows that several - weeks or several months might elapse and the day of sale might be fixed so far in the future that parties in interest might overlook the sale altogether and grave injustice be done. The purpose of the statute is to give wide-spread-notice to the public generally, and to have this notice fresh in the minds of parties probably interested. This interpretation of the statute is justified by the literal meaning of the language employed, and tends, we think, to the public good. It enables the statute to accomplish the very purpose for which it is enacted. If the word “preceding” as her'e used means “next before,” as we think .it does, it follows that the case of McMahan v. Building Ass’n, 75 Miss. 965, 23 So. 431, is authority for the affirmance of this case. The provisions of the trust deed under consideration in the McMahan Case required publication “for four weeks next before the day of sale. ’ ’ Nine days intervened between the date of the last advertisement and the day of sale, and for that reason the proceedings were condemned. This case is further authority on the point that where the publication is thus so vitally insufficient, the sale is a nullity and the trustee’s deed void. So say we in the case at bar. In the case of Lake et al. v. Castleman, 116 Miss. 175, 76 So. 877, an alleged infirmity in the publication was claimed, but the sales were there upheld on a showing .very much different from the showing made in the present case. In the opinion we there said:-

“It will he noted that more than one week did not elapse between the date of the last publication and the day of sale. This fact points the difference between the case at bar and that of McMahan v. American Building & Loan Ass’n. 75 Miss. 965, 23 So. 431.”

By this language we intimated very strongly that if more than one week does in fact elapse between the date of the last publication and the day of sale the proceeding is a nullity. See, also, Smith v. Gibson, 191 Ala. 305, 68 So. 143; Enoch v. Miller, 60 Miss. 19; Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Perry on Trusts and Trustees (6 Ed.), 602, 782.

Prom what we have said it' necessarily follows'that the learned circuit court committed no error in excluding the plaintiff’s testimony and directing a verdict in favor of the defendants. But when the beneficiary in a deed of trust purchases at a void foreclosure, it does not necessarily result in the loss of the secured indebtedness. No other point being presented by the present appeal, we direct that the judgment be affirmed.

Affirmed.