Thompson v. Wynne, 90 So. 482

90 So. 482 | Miss. | 1921

'Andeeson, J.,

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, 1921. It is alleged in the bill that by agreement between the appellant and appellee entered into on January 28, 1921, the time of payment of the note was extended three months, which therefore made the extended date of payment April 23, 1921. The husband of appellee, who is a lawyer, and whom the testimony shows attended to this entire matter for his wife from beginning to end, testified that there was no consideration for the extension of time, except the mere promise of the appellant. Later on in his testimony, evidently only intending to draw what he considered a legal conclusion from the fact of extension, he stated that the consideration for it was the interest which would accrue to appellant on the note during the additional time. But the evidence in the case is overwhelming that there was no consideration for the extension; that neither the interest which would accrue during the extended period was the consideration, nor was there any other consideration of any kind whatever; on the contrary, that it was a mere matter of grace to the appellee; that appellant was indebted to I-Iarbison, cashier of the Citizens’ Savings Bank of Greenville, which indebtedness was soon falling due, and agreed to the extension of ap-pellee’s note upon the condition alone that he could get his (appellant’s) said note extended for the same length of time; that accordingly the parties met with Harbison, by previous arrangement, in Greenville, and there it was agreed by Harbison that appellant should have three months’ extension on his note, and, in turn, appellant agreed to give appellee three months’ extension. There is no real conflict in the evidence on this point. Therefore the contention that the injunction in this case was rightfully sued out, because the indebtedness secured by the deed of trust which was sought to be foreclosed was not due, is without any substantial foundation.

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 appointed in the place of Jones, the trustee named in the deed of trust. The power set out in the deed of trust under ivhich the substitution was made is in this language: “The owner or owners of the above indebtedness may, at any time he or they may desire, appoint another trustee in the place and stead of the trustee herein named, or any succeeding trustee.”

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 contained in the deed of trust here involved, it is clear that the rule was not violated. The power contained in the deed of trust simply states that the appellant should have the power to appoint another trustee in the place of the trustee named, or any succeeding trustee, at any time he might'see fit. Language could not be broader. The parties so contracted, and why should they not be bound by their contract? We do not mean (and it is not necessary to decide the question) that such a broad power could be arbitrarily and unjustly used; that it could be used as an instrument of fraud and oppression. There is no such question involved under the facts of this case. It will be time enough to decide that question when it arises. We have here a deed of trust containing this broad power of appointment of a substituted trustee, and an exercise of that power by the cestui que trust in perfect good faith. We are of opinion, under the facts of this case, that the substitution is unassailable.

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.