90 So. 482 | Miss. | 1921
delivered the opinion of the court.
Appellee, Mrs. Edna Wynne, filed her bill in the chancery court of the second district of Bolivar county to enjoin appellant, C. P. Thompson, from foreclosing a deed of trust held by him upon her land. The appellant was proceeding to foreclose by advertisement and sale through a trustee. On the filing of the bill an injunction was issued and served in accordance Avith its prayer. Appellant answered the bill and made a motion to dissolve the injunction, which was heard by the trial court on bill, answer and oral testimony taken at the hearing, and a decree was rendered by the court overruling appellant’s motion, from which he Avas granted an appeal to this court to settle the principles of the cause.
The bill alleges as One ground of injunction that the indebtedness secured by the deed of trust was not due at the time of the attempted foreclosure. The note secured by the deed of trust was due by its terms on January 1,
A further ground of injunction averred in the bill is that the proceedings to foreclose were unauthorized and illegal, for the reason that Causey, the substituted trustee undertaking the foreclosure, had not been legally ap
The facts out of which this question arises are that appellant first requested Jones, the trustee named in the deed of trust, to proceed to foreclose in the manner provided in the deed of trust. Accordingly Jones advertised the sale in a newspaper and claimed to have posted one sale notice on the bulletin board of the courthouse. While Jones’ advertisement of the sale was in progress appellant was informed that for certain reasons (unnecessary to notice) such advertisement was illegal, and that a sale thereunder would be void, and, furthermore, that the trustee, Jones, had procured the services of the husband of appellee, who was a lawyer, to prepare the sale notice, which appellee’s husband admitted in his testimony was the fact. Whether there was any real ground for appellant’s apprehension that the foreclosure proceedings were illegal it is unnecessary to decide; it is sufficient to say that appellant in good faith sought the advice of a lawyer, following whose advice he substituted Causey as trustee in the place of Jones and had the latter discontinued as trustee and the former to proceed with the foreclosure, and while so doing the injunction in this cause was issued and served. It is argued on behalf of appellee that the substitution of Causey aá trustee was void; that such a power given in a deed of trust is to be strictly construed against its exercise; that the substitution could not take place except upon the happening of the precise event specified in the deed of trust; and to support that principle McNeil v. Lee, 79 Miss. 455, 30 So. 821; Guion v. Pickett, 42 Miss. 80, and 2 Perry on Trusts (4 Ed.), section 602(g), are relied on.
There is no question as to the soundness of the principle referred to; but, applying it with full force to power con
The deed of trust in question plainly provides what it shall stand as security, for there is no necessity of going into that question. We find no merit in the other grounds for injunction argued, which we do not deem of sufficient importance to treat specially.
Reversed and remanded.