82 So. 323 | Miss. | 1919
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,
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
■ 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
“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.