Opinion
No. 32052.
May 4, 1936. Suggestion of Error Overruled July 3, 1936.
MORTGAGES.
Trustee's sale under deed of trust and trustee's deed given pursuant to sale held void where notice of sale posted at courthouse door as shown by exhibits filed by mortgagee by mistake named a past date instead of future date as time of sale.
APPEAL from chancery court of Yazoo county. HON. M.B. MONTGOMERY, Chancellor.
Ruth Campbell and Campbell Campbell, of Yazoo City, for appellants.
The foreclosure sale is a nullity, the trustee's deed void, and the Federal Land Bank of New Orleans is not the owner of the lands and not entitled to possession of same.
Section 2772, Code of 1906, as amended by chapter 180, Laws of 1908; section 2167, Code of 1930 (sec. 2276, Hemingway's Code); chapter 248, Laws of 1934.
It is apparent from the face of the deed that there was a fatal variance in the date of the sale as published in the notice in the newspaper with that of the date of the sale as posted in the notice at the courthouse. The trustee failed to comply with the terms of the trust deed and the statute since he did not give the notice required thereunder and the sale is therefore an absolute nullity and the deed void, and the Federal Land Bank derived no title to the lands by reason of its alleged purchase at said void sale and under the trustee's deed to it, and no right of possession to the lands.
The terms of the trust deed and of the statutes clearly require that one notice of the sale be posted at the courthouse of the county where the land is situated.
Fauntleroy v. Mardis, 85 So. 96, 123 Miss. 353; Jones v. Frank, 85 So. 310, 123 Miss. 280; Wilzyinski v. Watson, 69 So. 1010.
A notice as required under the statutes and the terms of the trust deed means a notice that correctly gives the time, terms and place of sale, and any notice that fails to give the time of the sale is no notice at all, and a notice that sets forth an erroneous date is perhaps worse than no notice since it tends to mislead any prospective bidders and prevent their attendance at the sale.
41 C.J. 954; Tyler v. Herring, 67 Miss. 169, 19 Am. St. Rep. 288, 6 So. 840.
Our decisions are numerous that regardless of the recitations or lack of recitations and recitals by the trustee in his deed, evidence may be introduced to show how the advertisements were made and what acts in pais were really performed by the trustee in making his advertisement and sale, and where this evidence is produced, whether by the party contending the sale void or by the party contending the sale valid, the court looks to this evidence to determine as to whether the sale was properly made or not and the presumption no longer prevails.
Tyler v. Herring, 67 Miss. 169, 19 Am. St. Rep. 263, 6 So. 840; McSwain v. Young, 72 So. 129; Wilzyinski v. Watson, 69 So. 1009, 110 Miss. 86; Planters Co. v. Braxton, 120 Miss. 470; 41 C.J., pages 994 and 995, sec. 1449; Smith v. Kirkland, 89 Miss. 647, 42 So. 285.
It was not necessary in the case at bar for the defendants, appellants here, to offer any proof as to the invalidity of the sale since the trustee, by his actual exhibits attached to his deed, and the recitations in the deed and his oath and affidavit to the Exhibit "B" produced all the evidence that any court should need that the sale was a nullity and the deed void. The cross-complainants, appellees here, made this deed and its exhibits, as exhibits to their cross-bills, and further than that actually introduced into the record in this cause, by the chancery clerk, the record of this deed as it appeared in his office.
Jones v. Frank, 123 Miss. 280.
The presumption is overthrown where a sale is made in disregard of the plain provisions of the instrument and this fact be shown affirmatively by the record.
McGaughn v. Young, 85 Miss. 278.
The affirmative proof necessary to overthrow the prima facie presumption may be supplied either by the direct testimony of witnesses or by the affirmative statements of the trustee's deed itself.
Jones v. Frank, 123 Miss. 280.
If the notices of sale are not made and published according to the power, the sale is absolutely void and not merely voidable, and no title passes to the purchaser.
Enochs v. Miller, 60 Miss. 19; Allen v. Alliance Trust Co., 84 Miss. 319; McGaughn v. Young, 85 Miss. 277; Planters Mercantile Co. v. Braxton, 120 Miss. 470.
Appellees contend that the objections to the validity of the foreclosure proceeding and the trustee's deed are raised for the first time by the appellants on the appeal of this cause, that the question as to the validity of such proceedings was never before the court below and for that reason ought not to be considered here, claiming that to do so would violate the theory of the case, and that this case is not one that comes within the exceptions to the general rule that the theory of the case is not to be disturbed on appeal. Appellee's contention regarding the violation of the theory of the case as tried in the court below is that the parties to this proceeding so conducted the cause that they waived their right to here complain of the defective foreclosure. An admission, even if made, which we most affirmatively say was not, that the trustee's sale and deed were valid would not render such a sale and deed valid where the statutory requirements were not complied with by the trustee as in the instant case. Our courts have expressly held that parties cannot even expressly contract for a shorter period of time or a lesser degree of notice than that required by the statute in the foreclosure of a trust deed. That to advertise for a shorter period of time or give a lesser degree of notice than that required by statute renders the entire proceedings void, regardless of the terms of the trust deed, the express contract of the parties. Can parties do that by waiver and admissions, which they cannot expressly do by written contract? We say not, that the objections here to the trustee's deed are not such as can be waived.
Wilczinski v. Watson, 110 Miss. 93, 69 So. 1009; Nash v. Phillips, 2 Miss. Dec. 628.
In the instant case the burden of proving the bank's right to title and possession of the lands was on the appellees and until they meet this burden it is not necessary and it was not necessary for the appellants to offer any proof of the invalidity of appellees' claims.
Clearly, in this case, the burden was upon the Federal Land Bank to show, in its suit to cancel clouds on its title and its "ejectment" suit against the Booker appellants, "the posting of a notice at the courthouse." We submit that it utterly failed to do so, and in addition proved by its own pleadings, exhibits and proof that the title and the right to the possession of said lands was vested in the Booker appellants.
Section 211, Griffith's Miss. Chancery Practice.
Appellees urge that the objection here raised to the foreclosure proceedings is one that could be obviated if opportunity to do so had been given. So far as the record shows, and that is what this court is confined to in a consideration of the rights of the parties, the instrument was void and foreclosure sale a nullity because the notice posted at the courthouse gave a different date than that advertised in the paper. Such an irregularity was not a compliance with the statute and rendered the entire proceedings void. The record shows nothing to even intimate that the fatal irregularity in the sale could have been corrected, and frankly, relying on the statements in the trustee's deed, the only evidence known to us and before this court, the irregularities are fatal and cannot be corrected by extrinsic evidence.
Griffith's Miss. Chancery Practice, page 790, sec. 678, and sec. 211; Gabbert v. Wallace, 66 Miss. 618, 5 So. 394.
When we consider that the entire decree in the lower court in the instant case is based on the void trustee's sale and deed, it is clear that a judgment of reversal should be entered here.
Pease Dwyer Co. v. Somers Planting Co., 93 So. 673; Dulion v. Folkes, 120 So. 443; Griffith's Miss. Chancery Practice, pages 623-25, sec. 567.
Even under the contentions of appellees, the record evidence of the trustee's deed must be considered by the court, it was not objected to, in fact offered by appellees and Lucy Johnson appellant, and it is certainly apparent on its face without further comment to "have semblance of evidence for any purpose or in any manner whatsoever."
Walker v. Saunders, 1 Miss. Dec. 57; Cook v. Ligon, 54 Miss. 378.
If no objection is made to evidence at the time it is introduced objections to it will not be considered on appeal and will be considered as waived and it will be considered for what it is worth.
Skinner v. Collier, 4 Howard 396; Morris v. Henderson, 37 Miss. 492; Wesling v. Noonan, 31 Miss. 599; Neely v. Planters Bank, 4 S. M. 113; Chew v. Read, 11 S. M. 182; Perkins v. Sturdivant, 4 So. 555; Parkhurst v. McGraw, 24 Miss. 136; 1 R.C.L. 496.
We submit that evidence of the invalidity of the trustee's deed was properly before the court below and is now properly before this court under the proof and pleadings in this case and must be so considered by this court.
Wise Bridgforth, of Yazoo City, for appellees.
The appellants and appellee so conducted the hearing and so introduced evidence and objected to the introduction thereof, as to make it clear that all parties to the litigation continued to proceed at the trial on the theory of a valid foreclosure of appellee's deed of trust.
The respective duties of the litigants were as imperative at the hearing as in the preparation of the pleadings. So it can be safely said that the case was pleaded, tried and decided on the theory that but for the fraud set up by Lucy Johnson and the defective description contended for by the Bookers — both of which the chancellor found groundless — the foreclosure was perfectly valid. The formal validity, the validity so far as statutory notice is concerned, of the sale, thus became the theory of the case and is binding upon all parties to the litigation.
It is thus clear that the question of a defective foreclosure based upon an alleged want of statutory notice, claimed to be shown by the trustee's deed, was not definitely raised in the trial court and preserved for review, and will not be noticed on appeal.
Griffith, Miss. Chancery Practice, sections 676-679.
Had appellant's present position been intimated, opportunity would have been afforded appellee to produce extrinsic evidence to show the notice actually given, even if the trustee's deed exhibited with the original bill be disregarded.
Jones v. Frank, 123 Miss. 280, 85 So. 310.
It cannot be said that this is a case wherein it is not legally possible to obviate the fatal result, if opportunity to do so had been given.
Griffith, Miss. Chancery Practice, p. 793.
The cross-bill is a part and dependency of the main suit, and is so incorporated with it that if either the bill or cross-bill is separately set for hearing, the effect is to set the whole suit for hearing; and on appeal the appellate court will examine both bill and cross-bill as one proceeding.
Griffith, Miss. Chancery Practice, sec. 387, page 393; 10 R.C.L. 490.
Unless there be no escape from so doing, the court will not accept any contention which would place it in a position where, in the same suit, it must hold a foreclosure both good and void. The acceptance of appellants' contention here is further complicated because of the fact that the record shows two trustee's deeds evidencing the foreclosure, the one first appearing in the record presented and accepted by them showing perfect statutory notice for foreclosure, and the other later exhibited by appellee showing a discrepancy in the posted notice.
The appellee's attorneys are convinced that the trustee's deed showing this discrepancy, made a part of the answer and cross-bill as Exhibit "15," is susceptible of interpretation in all its parts to show just what notice the trustee gave, and, if so, are satisfied that, interpreted, that deed would show that the notice actually posted carried August 29th as the date of sale, yet the decision of this court in Booker v. Federal Land Bank of N.O., the unlawful entry and detainer suit above-mentioned, is to the contrary. While that decision is not res adjudicata here, the holding in that regard would be binding in this case under the rule of stare decisis, unless it were overruled.
34 C.J. 745, 748.
When the bill was filed with the allegations in regard to the foreclosure therein contained, including the trustee's deed exhibited as a part thereof, Lucy Johnson admitted a good foreclosure, which is binding upon her representative now prosecuting the appeal in her stead. When the Booker appellants filed their answer admitting the foreclosure as pleaded in the original bill, they did likewise. So did the appellee by the admission of the foreclosure in its answer and cross-bill.
The necessity for any proof at all to sustain appellee's title acquired by the foreclosure, as to the point now considered, was completely obviated; and any proof introduced incompetent, and although admitted cannot be regarded.
Griffith, Miss. Chancery Practice, sec. 566, pages 622, 623.
The admissions made by the bill in a chancery suit become the controlling evidence when admitted by the answer, as appellee here admitted the foreclosure pleaded in the bill.
Perkins v. Sturdivant, 4 So. 555; Parkhurst v. McGraw, 24 Miss. 134.
The fact that the trustee's deed introduced in evidence contained the discrepancy as to the date of sale shown by the copy of the notice actually posted is therefore immaterial. It had no place in the record, could not be considered by the chancellor, and could not vary or contradict the admission already judically made.
1 R.C.L. 496.
The appellants, during the course of the trial, directly waived the introduction of evidence affecting the validity of the foreclosure.
This court should in every instance where it can possibly be done, confine its action to a review of the case as it was tried below, and should never tolerate objections made here for the first time, if they were such as could have been waived by the agreement of the parties, either express or implied from their conduct on the trial before the jury, or otherwise.
Binns v. Stokes, 27 Miss. 239; Burroughs Land Co. v. Murphy, 131 Miss. 526, 95 So. 515.
Where a fact is admitted, conceded, or assumed without objection in the trial court, it cannot be contested in the appellate court, or objected that there was no evidence on the question, but the theory in the trial court will be adhered to. This is true, of course, of facts admitted by the pleadings either expressly or by failure to deny.
3 C.J. 735.
Surely for the purposes of this case the proof that appellee was the true owner of the lands in litigation is beyond question.
The pleading by which the appellee must show it was the true owner is, of course, the cross-bill. The cross-bill here was made a part of the same pleading which contained appellee's answer, and the allegations of the answer portion of the pleading were made a part of the cross-bill by appropriate statement therein, therefore it was not required that the cross-bill contain a repetition of the averments contained in the answer. Mississippi Chancery Practice, Griffith, sec. 380, page 385. Thus the portion of the answer admitting the foreclosure, as pleaded by the original bill of Lucy Johnson and sweepingly admitted by the answer of Booker appellants to the original bill, became a part of the cross-bill.
In regard to the deraignment of appellee's title, the cross-bill is amply sufficient.
Our court has long ago held that deraignment of title even in suits to cancel clouds need only be pleaded so as to show a common source of title and that the one seeking cancellation has secured title from that course.
Peoples Bank v. West, 67 Miss. 729, 7 So. 513; section 405, Code of 1930.
It is directly alleged in the appellee's answer incorporated therein, in words equivalent to the following, "Appellee admits it foreclosed its deed of trust on the property and purchased same at the foreclosure sale." A more sweeping allegation could not be made. It is not qualified as to the manner of purchase or in any other respect. A later allegation that it received a trustee's deed in completion of the foreclosure, recorded in a certain book and page of the county deed records, which was made an exhibit, in no wise derogates from the unequivocal averment of the admission first made. In fact, the later allegation was wholly unnecessary, regardless of the allegations of the original bill; and had appellee's answer averment not been an admission based upon the bill's allegations in regard thereto, but a simple statement that it had foreclosed its deed of trust and purchased at the foreclosure, the later averment in regard to the trustee's deed would have been immaterial and unnecessary in the pleading. By including that averment the appellee pleaded evidentiary facts. See Mississippi Chancery Practice, Griffith, sec. 170, page 163. And as a matter of proof, of course, we are not now concerned with the trustee's deed. This would be true even had the bill not admitted the foreclosure and had pleaded only the existence of appellee's deed of trust. But here this pleading was filed in the light of the admission contained in the original bill, which admission was also admitted by the answer of the Booker appellants, therefore the admission made by the appellee therein removed forever any question of the validity of the foreclosure. On both grounds the later averment of the answer "that the appellee received the trustee's deed made Exhibit `15' to the answer in completion of the foreclosure," was wholly unnecessary and completely immaterial; that averment was surplusage.
Griffith, Miss. Chancery Practice, sec. 168, page 161, and sec. 291, pages 290-291; Tippin v. Coleman, 59 Miss. 641.
If the averment be not considered surplusage, the only meaning or effect it could have in the cross-bill would be in derogation or contradiction of the prior averment which admitted the foreclosure of the appellee's deed of trust as the original bill had pleaded it, and as the Booker appellants had admitted it in their answer. In that event we are faced with inconsistent or repugnant averments in the cross-bill. In such a situation the bill is not bad, it would survive a general demurrer and is sufficient statement of a cause of action to require of the chancellor a decree if the proof sustained any one of the inconsistent allegations. In that situation it was incumbent on the appellants, as cross-defendants, to specially demur to the cross-bill, on the ground of inconsistency and repugnancy. Miss. Chancery Practice, Griffith, sec. 177, pages 172-173. In so doing it was their duty to call specific attention to the particular inconsistency existing in the cross-bill, and having failed to file a special demurrer they have waived the possible point.
Mississippi Chancery Practice, Griffith, secs. 296, 297, pages 295-298; American Freehold Land Mortgage Co. v. Sewell, 92 Ala. 163, 9 So. 143, 13 L.R.A. 299.
The findings are made on conflicting evidence and the decree thereon will not be disturbed, on appeal, unless it be shown the findings are manifestly wrong or that there is not enough competent evidence to sustain the decree.
Griffith, Miss. Chancery Practice, sec. 674.
Argued orally by Ruth Campbell and T.H. Campbell, Jr., for appellant and by Allen Bridgforth, for appellee.
Lucy Johnson, an illiterate negro woman about eighty years of age, filed a bill to set aside a deed made by her to Zack Booker, Sr., her foster son, and to set aside and cancel a deed of trust given by said Booker to the Land Bank. Among other pleadings, subsequently filed, was a cross-bill by the appellee bank setting up a foreclosure in pais of said deed of trust, praying that the trustee's deed executed in pursuance thereof be declared valid and that the claims of all adverse parties, naming them, including Lucy Johnson, be canceled as clouds on the title of the bank, and for a writ of possession.
The record consists of four volumes, the entire of the first volume being filled by the pleadings, motions, and the like. The three subsequent volumes are largely made up of immaterial or purely repetitious matter. It would be of no profit to bench and bar to follow out all the details of the complainants' contentions, and we shall state only that there is enough upon the pleadings and the evidence to sustain the chancellor in dismissing the original bill and also in denying the application for a continuance.
The original bill made no attack upon the record regularity of the trustee's sale made on August 29, 1934. On the contrary, there was exhibited with the original bill a copy of the trustee's deed, a copy of the notice advertised in a newspaper published in the county, and a copy of an alleged notice posted by the trustee at the courthouse, all showing that the sale was advertised to be made on said date, August 29, 1934, and that the property was actually sold on that day, within legal hours. The cross-bill was not content, however, to adopt the averments and exhibits of the original bill in respect to the trustee's sale and the notices given by the trustee, but the cross-bill set out its own exhibits in respect to the trustee's sale; and in its exhibit of the notice posted at the courthouse, the cross-bill shows that that notice stated that the sale would be made on July 11, 1934. And neither side seemed to have been satisfied with the said exhibits, but both sides in turn introduced the record of the trustee's sale, together with the notices of sale, recorded with the trustee's deed in Deed Book F.O., p. 95, and this record shows that the trustee's notice posted at the courthouse gave notice of sale for July 11, 1934, and not for August 29, 1934. This defect in the notice posted at the courthouse rendered the trustee's sale and trustee's deed invalid, as recently held by this court in Booker v. Federal Land Bank, 164 So. 877.
In the answer to the original bill, the defendant bank answered as follows: "The said defendants admit that on August 29, 1934, the defendant Federal Land Bank of New Orleans foreclosed said deed of trust to it, copy (of the deed of trust) made exhibit 9 hereto and purchased said property at foreclosure sale for $6,517.90 and received in completion of said foreclosure a trustee's deed from defendant Allen Bridgforth, trustee in said deed of trust which deed was dated August 29, 1934, and is recorded in Book F.O. at p. 95 of the records of deeds of Yazoo County, Mississippi, a copy of which marked Exhibit 15 is filed herewith and made a part hereof but aver complainant and Booker defendants remain in possession of said lands." Exhibit 15 contains the July 11th notice, above referred to.
No point was made in the trial in the chancery court in respect to the trustee's notice of sale. All sides seem to have then conceded that the sale so far as the notices thereof were concerned were valid. It may be assumed as probable that nobody had then discovered the defect in the notice posted at the courthouse. Nevertheless, the actual record was introduced by both sides, and, as already stated, the actual facts shown in evidence, and this by both sides, discloses that the sale and trustee's deed is without validity; and although it is evident that the chancellor's attention was never called to the fatal defect, the fact remains that it stands out as unavoidable in this record. The Land Bank has prayed the court to recognize the validity of its trustee's sale and deed and for the cancellation of adverse claims and for a writ of possession, and yet has proceeded by its own pleadings and proof to show that the sale and trustee's deed were ineffective, with the inescapable result that the decree on the cross-bill must be reversed, and the cause remanded.
Affirmed in part; reversed in part and remanded.