OPINION OP THE COURT.
HANNA, J.
This is a suit in equity brought by plaintiffs against defendants to reform an instrument purporting to be a deed, and to quiet title to certain lots described therein. The complaint alleges that the plaintiffs are the owners and entitled’to the possession of certain lots in the 'Ovard Addition to the city of Boswell, which were acquired by mesne conveyance from J. S. Williamson, their common grantor, who acquired title thereto by virtue of a sale made in pursuance of a power of sale contained in a mortgage deed executed on May 26. 1891, by George ,T- Ovard and D. A. Ovard, his wife, to the Pecos Valley Mercantile Company, a partnership composed of J. S'. Williamson, J. J. Sanders, and Charles Wilson; that said Williamson, acting for himself and the members of said partnership, duly and legally complied with the conditions of said mortgage deed, and the property was sold and a conveyance thereof attempted by deed; that, by mistake of the scrivener, the said deed was so drawn that it conveyed only the' right, title, and interest of J. S'. Williamson, J. J. Sanders, and Charles Wilson, mortgagees, when in truth and in fact, it was the intention of the members'of said firm and their instruction to said scrivener, as well as the purpose and object of the advertisement and sale, to convey all the right, title, and interest of the mortgagors, George T. Ovard and D. A. Ovard, his wife, to said Williamson, who was the highest and best bidder at said sale; that plaintiffs purchased said lots without knowledge of said mistake in said deed; that plaintiffs are informed and believe that the defendants make some claim of title to said premises, adverse to the estate of plaintiffs. Plaintiffs pray for reformation of said deed and to quiet title to tbe lands therein mentioned. •
The' answer of defendants denied generally all of the allegations made' in tlie complaint, and alleged, by way of new matter, that the cause' of action of plaintiffs was discovered and known by plaintiffs more than four years before the filing of the original complaint herein; that On May 26, 1891, said Ovard and wife made, acknowledged,, and delivered to and in favor of the Pecos Valley Mercantile Company, the mortgage, to secure the payment of $559.13, payable 18 months after date; that said mortgage deed not only fails to convey any real estate therein mentioned, but otherwise is fatally defective upon its face; that the validity of said mortgage deed was drawn in question in a certain cause, numbered 570, in the district court for Chaves county, which cause was between different- parties than those mentioned in the case at bar, and Was' held ineffective as an instrument of conveyance; that the' rights of plaintiffs are based entirely upon said mortgage; that .the decision of said court in said cause was generally considered and discussed among real estate' agents and brokers then engaged in business at EosWell, and was generally known to the public; that defendants are the owners of said estate and entitled to the possession thereof, deriving title thereto by virtue of conveyances made and executed by the heirs at law of said O'vard and wife; that such conveyances were executed in the' years 1909' and -l9'll; that defendant, Bateman, was in the actual possession of said lands long before the institution of this action, and has placed valuable improvements on most of said lots; that he has paid the taxes assessed thereon and had no knowledge that plaintiffs claimed that a mistake existed in said deed, under which plaintiffs claim, until the institution of this suit; that the mistake in said deed appeared upon its face and was of record for more than 17 years prior to the institution of this suit, and until this time plaintiffs have taken no action with reference thereto; that 16 other lots were in-eluded in said mortgage deed, and are now, and have been for a long timé previous to the institution of this suit, -in 'the peaceable possession of persons other ‘than the-parties to this suit. ..¡,
'The reply alleged that all the property mentioned in the complaint was purchased by plaintiffs for valuable considerations, without knowledge of the mistake in the .deed, which is sought to be reformed, and pleads specific factsj as to when each plaintiff obtained knowledge of said mistake; that the Doss children are minors, and that the allegations of laches on the part of the plaintiffs cannot' apply to them for that reason; that the heirs of saidj Ovards have never been in possession of said lands, and; that the interest of said Ovards-in said premises was foreclosed as alleged in the complaint, and therefore the defendants acquired nothing by virtue of the deeds, made, by the heirs of the Ovards, executed subsequent to the foreclosure of said mortgage. ;
The ease came on to be heard before the court, and the defendant, TJ. S. Bateman, objected to the introduction of 'any evidence on the ground that the complaint failed-to state facts sufficient to constitute a cause of action., The objection was overruled by the court. Evidence on, the part of the plaintiffs was then introduced, which tended to support the allegations of the complaint as well as to prove that the mortgagor, George T. Ovard, was present at the sale and acquiesced therein, and that J. S., Williamson was the sole owner of the note and mortgage at the time of the foreclosure proceedings. ■ The defend^ ant introduced evidence tending to prove title to the premises in himself, provided his grantors had.title. The court made certdin findings of law and fact and rendered judgment for appellees, from which judgment appellant has, prosecuted this appeal.
[1] Paragraph one of' the first assignment of error is-based upon the general objection that the complaint'failed' to state facts sufficient to constitute a cause of action, and-If propositions are declared thereunder. Many of these-propositions are simply assertions as distinguished from*, argued propositions. The rule adopted by this court is-that such objections must definitely point out the alleged-error, and,'when that is not done, the objections are con-' sidered as raised for the first time on appeal, and consequently the—
“complaint will be liberally construed in order to uphold the judgment, and, if it contains allegations from which every fact necessary to maintain the action may be inferred, it will be sustained.” State Bank of Commerce v. Western Union Tel. Co., 19 N. M. 211, 142 Pac. 156, L. R. A. 1915A, 120.
The appellant states in his brief that the propositions-argued and asserted in paragraph one of the first assignment are argued in the second paragraph of that assignment, so we shall not consider them under the first part of the first assignment.
[2] The first question which we are called upon to consider is that the complaint is insufficient because it appears, from the face thereof, that the mistake was of one party only, and that a court of equity has no power to grant reformation under such circumstances. The comr plaint alleges that—
“by mistake of the scrivener, the said deed was so drawn as! to convey the right, title, and interest in said lots of the-mortgages. * * * While, in truth and in fact, it was the in-, tention of said members of said firm and their instructions to said scrivener and the purpose of the said advertisement and sale to convey all .the right, title, and interest of the-mortgagees (mortgagors), George T. Ovard and D. A. Ovard.”
The complaint also alleges that J. S. Williamson, one' of the partners, acting for himself and the partnership,' sold the property under the power contained in the mortgage deed after having “duly and legally complied’’ with' the terms of, the power of sale. In this connection the law" seems well settled, and it is thus stated in Cyc.:
“Whenever an instrument is drawn with the intention of ‘ carrying into execution an agreement previously made, but-which by mistake of the draftsman or scrivener, either as to law or fact, does not fulfill the intention, but violates it, there • is ground to correct the mistake by reforming the instrument and enforcing a specific performance of the original-contract according to the real intention of the parties.” 34 Cyc. 910, 911.
Mr. Pomeroy deals with the question iu the following language: ■ ■ •
“Equity lias jurisdiction to reform written instruments in but two well-defined cases: (1) Where there is a mutual mistake; that is, where there has been a meeting of minds, an agreement actually entered into, but the contract, deed, settlement, or other instrument, in its written form, does not ■express what was really intended by the parties thereto; and (2) where there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the remaining parties.” 4 Porn. Eq. Juris. § 1376; 24 Am. & Eng. Enc. of Law (2d ed.) 648.
The contract or agreement which is attempted to lie •corrected in the case at bar is one between the mortgagors, acting through their attorney in fact, the Pecos Valley Mercantile Company, and J. S. Williamson, purchaser. In this transaction, the Pecos Valley Mercantile Company was acting through one of its partners, J. S. Williamson. The alleged mistake is based upon the failure of the scrivener to carry out the instructions of J. S. Williamson, as’ well as the other members of said firm. It is alleged that the deed was executed under the power ■of sale contained in the mortgage. Manifestly, the facts of the case, as developed at the trial, are sufficient to make out a case of mutual mistake, but the vital question, however, is whether the complaint states facts sufficient to make' out such a case. Had the complaint alleged that ■J. S. Williamson was acting as the agent or the attorney in fact of the mortgagors and mortgagee in the matter of the preparation of said alleged deed, no doubt the complaint would be sufficient. However, we are of the opinion that the complaint, although it is far from being a model, alleges facts sufficient to make out a case of mutual mistake. The Pecos Valley Mercantile Company, a partnership, was constituted the attorney in fact of the mortgagors. It could only act through one of its partners, attorneys, or agents. The power contained in the mortgage authorized it to act through an agent or attorney. When the substance of the complaint is considered, it states facts sufficient to constitute a mutual mistake, as distinguished from a mistake of one party onty. It shows that the agreement between the mortgagors and the mortgagee' was that in a certain event the latter, acting by itself or through its agent or attorney, should sell the premises and execute good and sufficient deeds therefor in behalf of the mortgagors; that, in pursuance of the agreement, J. S. Williamson, one of the partners, attempted to carry out the terms of that agreement, but the intention .of the parties was not carried out because of a mistake of the scrivener, due to his failure to observe the instructions of J. S. Williamson, who was then acting for himself as well as the partnership, the attorney in fact of tire mortgagors. Williamson was the purchaser at the foreclosure sale, and the agent of the partnership, the attorney in fact. The mistake was the mistake of Williamson, acting by his servant, the scrivener. It cannot be said with any degree of logic that Williamson, purchaser, made a mistake, but Williamson, agent for the attorney in fact of the mortgagor, made no mistake. The mistake of Williamson was the mistake of the mortgagor, the mortgagee, and the purchaser. He was acting for himself as purchaser and for the other parties as agent. Due to his mistake, the agreement of the parties was not properly reduced to writing because the alleged deed conveyed only the interest of the mortgagee, rather than the interest of the mortgagors as it existed at the time of the execution of the mortgage. The writing did not express the real agreement of the parties, and the facts show a proper case for equitable relief in that regard. This holding follows the doctrine laid down in First National Bank of Elida v. Hartford Fire Insurance Company, etc., 17 N. M. 334, 127 Pac. 1115, where the court said:
■“The mistake must be mutual and common to botb parties to tbe instrument. It must appear tbat botb bave .done wbat neither intended.”
[3] The appellant contends that the complaint is .defective because it fails to allege a demand upon .defendant for correction of the mistake and a refusal thereof. The general rule of pleading in this regard is that usually the complaint should allege such demand and refusal. But the rule is subject to certain exceptions, one of which is that no such demand and refusal need be alleged wh.er.ethe relief by reformation is simply incidental to other re-lief demanded. 18 Enl. P. & P. pp. 839, 840; 34 Cyc. 944, 973. California holds that no demand is necessary dn those cases wherein the demand is not on integral part of the cause of action. Danielson v. Neal, 164 Cal. 748, 130 Pac. 716. Illinois -holds that a failure to allege the -demand and refusal casts the payment of costs upon the defaulting party, notwithstanding that the defaulting .party may have succeeded in obtaining, the relief sought. Braithwaite v. Henneberry, 222 Ill. 50, 56, 78 N. E. 34. Indiana and Alabama hold that, where relief by way of -reformation is incidental to the main purpose of the suit, no such allegation of demand and refusal is necessary. Weathers v. Hill, 92 Ala. 492, 9 South. 412; Nichols & Shepard Co. v. Berning, 37 Ind. App. 109, 114, 76 N. E. 776, and numerous other cases therein cited. The ease .at bar falls within the last-mentioned exception to the general rule, the main purpose of this action being to quiet title to. the real estate, and therefore the complaint is sufficient so far as that particular question is concerned.
[4] The appellant argues that the alleged deed is void, because the partnership could not legally hold or ponvey real estate, and that equity will not reform a void instrument. The doctrine for which appellant contends is found in 24 Amer. & Eng. Ency. of Law (2d ed.) pp. 653, 657. A case which aptly illustrates that doctrine is that of Brazoria County v. Youngstown Bridge Co., 80 Fed. 10, 25 C. C. A. 306. There, the plaintiff sought to have reformed a contract made between it and the defendant county, by which the former agreed to construct certain bridges in consideration of a sum of money pay-, able in bonds of the county. The court held that the contract was void in its inception because the county had no power to so.contract, and therefore the court would not do a vain and useless thing by reforming an instrument, which, when reformed, would be without legal effect. The case at bar does not fall within those principles. Here, the parties had power to do the thing upon which their minds met. They ágree to do a legal thing, but their agreement was not properly reduced to writing because of .a- mistake oí a scrivener in failing to observe the instruction of all the parties.
[5] In this connection, the question is presented as to the legal effect of the mortgage. The mortgage named the partnership by name and the partners who composed it. Appellant argues that the adoption of the common-law rule of practice and decision, when considered with section 571 of the Code of 1915, which provides that the mortgagor shall have the'right of possession of mortgaged real- estate, in the absence of stipulation to the contrary, invokes and adopts the common-law rule with reference to the passing of title to the mortgagee by a mortgage on real estate. It has been held in this jurisdiction, and is now the settled law, that a mortgage of real estate is simply security for the payment of a debt, leaving the legal title in the mortgagor. Stearns-Roger Co. v. Aztec Gold M. & M. Co., 14 N. M. 300, 327, 330, 93 Pac. 706. We are satisfied that the doctrine announced in that case is correct.
[6] (a) Appellant alsó argues that the complaint is defective because it appears therefrom that the mortgagee purchased the property at his own sale. Unless the instrument confers upon the mortgagee the power to purchase at the sale, the general rule is that he cannot become the purchaser at the sale which he, himself, makes under the power. 1 Devlin on Deeds, § 417; 1 Wiltsie on Mortgage Foreclosure (3d ed.) § 610; 28 Am. & Eng. Ency. of Law (2d ed.) 816; 27 Cyc. 1483; 2 Jones on Mtgs. § 1876.
■■ (h) But such sales are voidable only, giving to the mortgagor an election either to ratify and affirm the sale, or disaffirm it by seeking to set it aside. Authorities) supra.
. (c) The election must be exercised within a reasonable time and before the property passes into the hands of an innocent purchaser for value and without notic'e. Authorities, supra. Such a sale being to all intents and purposes valid, unless avoided by the mortgagor with promptness, the burden of 'pleading and proving that the' sale was void rests upon the defendant in cases like that at bar. The court can draw no inference that the sale was void because of .the allegations of -the complaint, showing that the mortgagee purchased the property at the foreclosure sale. Therefore the complaint is not .defective for the reason assigned.
[7] -(a) The appellant asserts that tire complaint is defective because it fails to account for .a delay of .about 17 years in the bringing of tbis suit for reformation. The general principles applicable to tbis contention ;ar,e th®? stated in Enc. PI. & Pr. and Cye.:
“In a suit for the reformation of a contract, the hill or complaint must make it appear that the complainant is pursuing his remedy in good time after the discovery of the injury, and, if his allegations disclose that his claim is a stale one, or that, after the discovery of his right to relief, he has been guilty of long acquiescence and unnecessary and unexplained delay for an unreasonable length of time before .asking relief, the hill or complaint is demurrable.” 18 Enc. P.' & P. 825, 826.
“It is a well-settled rule that a party who discovers a -mistake in a deed or other instrument must use due diligencian seeking equitable aid, and a hill or complaint, which .show? that the plaintiff, after the discovery of the mistake, has confirmed the contract pr has been guilty (of unreasonable delay, is without equity.” Id. 829.
-(b) Where the complaint is -silent us -to the time «of discovery, it must he taken to have been known to -all parties interested from the time the instrument was made. 34 Cyc. 976. .The proposition was first raised by -objecting to the introduction of evidence at the trial. The .-answer, after denying, generally, -all the -allegations -,of the complaint, alleged^, that, i f a cause of aetion for reformation ever existed, it was known to and discovered by plaintiffs and their respective grantors long before the institution of this suit, and more than four years prior t-o the date of the filing of the original complaint. The -reply alleged facts, which, if true, accounted for the alleged delay in bringing the suit.
■(c) An .objection to the introduction of any evidence, made at -the trial, on the ground that the complaint fails to state a cause of action, is in the nbture of .a (demurrer ore tenus. 1 Sutherland Code Pl. Pr. & Forms, § 305; Rothe v. Rothe, 31 Wis. 572; Jenks v. Allen, 151 Wis. 625, 139 N. W. 433; Chism v. Smith, 210 N. Y. 198, 104 N. E. 131; Phillips v. Carver, 99 Wis. 561, 75 N. W. 432; Abbott v. Easton, 195 N. Y. 372, 88 N. E. 572; Hays v. Lewis, 17 Wis. 210; C. C. Belknap Glass Co. v. Kelleher, 72 Wash. 529, 130 Pac. 1123; Stutsman County v. Mansfield, 5 Dak, 78, 37 N. W. 304.
The delay in bringing the suit appears as a matter of fact upon the face of the complaint. Instead of demurring to the complaint, appellant answered and alleged the insufficiency thereof because of the delay, which manifestly raised a question of law and was not the proper office of an answer. The appellee then' alleged facts in reply, excusing the delay if those facts were true, on the theory, presumably, that such facts constituted a reply to new matter alleged in the answer. It will thus be seen that both parties misconceived the law with reference to the office of answers and replies, which accounts for the peculiar condition with which we are confronted. In Pomeroy’s Code Demedies, at section 470, it is said:
“A statement in tlie reply, however, of a fact which ought to have been alleged in the complaint or petition, is not sufficient and does not cure the defect.”
The author cites the case of Webb v. Bidwell, 15 Minn. 479 (Gil. 394), to support the doctrine. In that case, the plaintiff alleged in the form of a conclusion of law the invalidity of his title. Defendant answered and the plaintiff then replied, alleging facts showing the invalidity of his title as purchaser. At the trial, the defendant moved for judgment on the pleadings. The court held that the omission in the complaint was not cured by pleading facts, concerning the invalidity of plaintiff’s title, in the reply. In 18 Pl. & Pr. 707, it is said that “where the complaint is defective or does not contain facts sufficient to constitute a cause of action, a reply cannot cure it by supplying the necessary allegations” which is supported by the cases of Potts v. Hartman, 101 Ind. 359, 363; Webb v. Bidwell, supra; McMahill v. Jenkins, 69 Mo. App. 279, where the court said that a complaint cannot be amended by a reply; Durbin v. Fisk, 16 Ohio St. 533, 538; and Mohney v. Reed, 40 Mo. App. 99. In Deeves v. Metropolitan Realty Co. (Com. Pl.) 41 N. Y. Supp. 647, the complaint alleged that plaintiff duly performed all the conditions of the contract, furnished all the materials, and the work which plaintiff was to do was finished and fully completed in accordance with the contract. The answer alleged that the work was not performed until a considerable time after the expiration of the contract time. The reply apparently alleged facts curing the defect of which defendant complained. The court said:
“A case in point is Raplee v. Wilkin (Jan. 1878) 5 N. Y. Wkly. Dig. 560. It was therein held that a plaintiff’s pleadings are to he taken together, and that, if, together, 'they state facts sufficient to constitute a cause of action, the suit may he maintained, although the complaint alone may not be sufficient. The court said: ‘Although the complaint may not he sufficient alone, and the reply is irregular, yet the irregularity having been waived by the defendant, in accepting it and not moving to strike it out, the pleadings are to be taken together; and together they presented a state of facts upon which the plaintiff was entitled to recover.’ I shall overrule the general objection to plaintiff’s recovery in this action, on the authority of the case last cited; and it would seem that the doctrine therein advanced, of construing the pleadings as a whole, is in the plain interest of substantial justice.”
In Denver & R. G. Co. v. Cahill, 8 Colo. App. 158, 45 Pac. 285, the complaint omitted to allege that the plaintiff was the owner of the property which was an essential allegation in that case. Defendant answered and plaintiff replied, incorporating therein an allegation of ownership of the property. No attack was made on the reply. The court remarked on the doctrine that, where the averments in a replication constitute a departure, the objection must be taken before the trial, or it is waived. It then declared that in principle there is no distinction between that doctrine and a case where the reply does not contain allegations of departure, but matters which supply omissions in the complaint, and said:
“In either ease, the cause of action is to be found in tbe complaint and replication together, and a defendant who has failed to make his objection within the proper time is not prejudiced in any greater degree, where the replication supplies some statement which was wanting in the complaint than where the new allegation is a substitution for something which the complaint contained.”
'The doctrine of the last-mentioned case is approved in Water Supply & Storage Co. v. Larimer & Weld Reservoir Co., 25 Colo. 87, 53 Pac. 386, and Johnson v. Cummings, 12 Colo. App. 17, 55 Pac. 269. In the last-mentioned case, the court said that the omission in the complaint is supplied in the replication.
“So that, combining the two pleadings, a complete cause of action is set forth. The rules of pleading require the entire cause of action to be stated in the complaint, and a necessary allegation cannot properly appear for the first time in the replication. But the replication was not met by any objection, and the irregularity was therefore waived.”
In the case at bar, the complaint was fatally defective because of the omission therein of allegations of fact showing that plaintiffs were pursuing their remedy -in good time. But defendant did not attack the .reply, which alleged matters curing the omission of the complaint, but attacked, at the trial, the right of the plaintiffs to maintain their suit because of the alleged insufficiency of the complaint. Under such circumstances, the appellant waived the irregularity of the allegation of curative matter in the reply. Having waived the irregularity, the plaintiff’s cause of action is tested by the complaint and reply, which are sufficient to withstand the attack made by the demurrer ore tenus.
[8] Appellant insists that the complaint is defective because it fails to show the tenor of the instrument which the plaintiffs seek to have established by decree of the court. The complaint must show in terms what the instrument ought to be in order to express the real agreement of the parties, and it is not generally sufficient to allege it was the intention of the parties to make an instrument that would accomplish a certain object, and ask the court to make an instrument that will accomplish that object. 18 Enc. Pleading & Practice, 824.
“It should appear, from the allegations in the bill seeking a reformation of the instrument, what the real agreement was, what the agreement as reduced to writing was, .and wherein the writing fails to .embody the real agreement.” 34 Cyc. 972.
The complaint is somewhat indefinite on this point, but the court and parties were advised by it that the plaintiffs sought to have corrected the words “the right, title, and interest of the mortgagees” by striking out those words and inserting in lieu thereof, the words “the right, title, and interest of the mortgagors.”
[9] Apparently, the complaint did not attempt to add new parties to the deed. The mortgagee, the Pecos Valley Mercantile Company, was constituted the attorney in fact of the mortgagors, by the power cqntained in the mortgage. J. S. Williamson, one of the partners of that partnership, acted for the partnership in the execution of the power of sale and in the matter of conveying the premises. The general doctrine of law is that the mortgagee should not execute the deed in his own name, but in the name of the mortgagor, as the latter’s attorney in fact (27 Cyc. 1495), because the deed should be executed in the name of the person possessing the legal title. 1 Devlin on Deeds, § 421. It is unnecessary for us to decide whether the instrument in the case at bar can be held to be the deed of the principal, because the question is not presented by the parties under this particulaar assignment. There are cases, however, holding that a deed executed by a mortgagee under power contained in the mortgage is sufficient to show an intention of the grantor to convey in behalf of the mortgagor. Payton v. McPhaul, 128 Ga. 510, 58 S. E. 50, 11 Ann. Cas. 163, 165.
[10] (a) Dnder assignment No. 13, the appellant asserts that the proof does not support the finding that the notices required by law and by the terms of the mortgage were posted. Appellant, under this particular assignment, does-not analyze the evidence, nor does he attempt to point out wherein the evidence is insufficient in that regard. For lack of argument the assignment is waived, but about the same question is raised under the fourteenth assignment where the appellant claims that the court should have found that the notices of sale were not posted or published as required -by the terms' of the mortgage. The assignment proceeds upon the theory that the recitations in the deed from the Pecos Valley Mercantile Company to Williamson do not show the giving of proper notices and that the proof justified a finding that no proper notices had been given.
The mortgage provided that, in case of default in the payment of the principal and interest of the note when the same became due, the mortgagee, its attorney or agent, was authorized to take possession of the premises and sell the same after giving notice by sis handbills posted ¿t public places in the county of Chaves, at least 20 days prior to the time of sale, or by notices published in some newspaper printed in the county of Chaves, at least 20 days prior to the time of sale. The deed from the mortgagee to Williamson recited the following facts:
"Whereas, George T. Ovard and wife, D. A. Ovard, of Chaves county and territory of New Mexico, did, by a certain mortgage deed, dated the 26th day of May, A. D. 1891, which said deed was duly recorded on same date in the office of the probate clerk of said county and territory, in Book B, pages 55, 56, of mortgage-deeds, convey to the said parties of the first part all the premises hereinafter described, to secure the payment of one certain promissory note for $559.13 in said deed particularly mentioned, and upon certain conditions in said mortgage deed particularly described; and whereas, default has been made in the payment of the said note, the said premises were, by the said parties of the first part, duly advertised for public sale, at the front door of the courthouse in the town of Roswell, in the county of Chaves and territory of New Mexico, on the 28th day of November, A. D. 1892, in the manner prescribed by said mortgage deed, and were, after giving 20 days’ notice, at the place last mentioned aforesaid, on the 24th day of December, A. D. 1892, in pursuance of said notice, sold at public sale, and at said sale, the said parties of the second part were the highest and best bidders, and bid for the said lots or parcels of land, hereinafter named, the sum of $678.’’
The appellant insists that the recitations in the deed “show that only one notice was published, that at the courthouse door on November 28th.” The recitations are subject to no such construction. What is meant by the recitations is that the advertisement was made on November 28th in the manner prescribed by the mortgage, which was 20 days prior to the sale.
The second proposition in the assignment is likewise without merit. It is a general and well-established doctrine of law that' the power of sale in a mortgage must be strictly complied with. 2 Jones on Mtgs. § 1822; 27 Cyc. 1449, 1465, 1466; 2 Perry on Trusts (2d ed.) §§ 602, 783; Johnson v. Johnson, 27 S. C. 309, 3 S. E. 606, 13 Am. St. Rep. 636; Atkins v. Crumpler, 118 N. C. 532, 24 S. E. 367; Hurd v. Case, 32 Ill. 45, 83 Am. Dec. 249; Sears v. Livermore, 17 Iowa, 297, 85 Am. Dec. 564; Campbell v. Tagge, 30 Iowa, 307; Ford v. Nesbitt, 72 Ark. 267, 79 N. W. 793. In 27 Cyc. 1474, it is said that the provisions in a mortgage requiring the posting of notices of sale must be strictly complied with. In Shillaber v. Robinson, 97 U. S. 68, 77, 24 L. Ed. 967, the court said that it was too well established to admit of controversy that a sale under power, not in strict compliance with the terms of the power in the matter of giving notice of sale was void. The reason for the rule is apparent. The exercise of the power is entirely ex parte. The creditor is an interested trustee for his debtor, as well as trustee for himself. He judges of the necessity of making a forced sale of the property of his debtor, and, when the sale is made, executes title to the purchaser. The power to sell is a matter of contract and the parties are bound to a strict observance of its terms. The books abound in cases wherein the courts have held sales to be void because of material irregularities in the matter of giving notices of such sales.
(b) But, while we recognize the doctrine last mentioned, it is not controlling in the case at bar. Copies of the mortgage and the deed made thereunder were received in evidence. J. S. Williamson testified that three notices of sale were posted in the city of Boswell, and that he had been told that three other such notices had been posted in places outside of Boswell, in the county of Chaves.
The recitals, contained in a deed executed by virtue of a power of sale contained in a mortgage, that the proper notice of sale was given are prima facie proof of such facts as against the parties and privies to the instrument containing the power. 4 Enc. of Evidence, 183, 13 Cyc. 611; 27 Cyc. 1463; Knox v. Gibson (1911) 23 Colo. App. 402, 128 Pac. 470; Williamson v. Mayer, 117 Ala. 253, 23 South. 3; Tew v. Henderson, 116 Ala. 545, 23 South. 128; Washington County R. Co. v. Canadian Colored Cotton Mills Co., 104 Me. 527, 72 Atl. 491, 496; Lunsford v. Speaks, 112 N. C. 608, 17 S. E. 430; Tyler v. Herring, 67 Miss. 169, 6 South. 840, 19 Am. St. Rep. 263.
In Empire Eanch & Cattle Co. v. Howell (1912) 22 Colo. App. 389, 125 Pac. 592, the court said that:
“No evidence having been offered by the defendant, tending in any wise to contradict or impeach the recitals in the trustee’s deed offered by plaintiff, we must hold that he made sufficient proof of his title to put the defendant on his proof.”
The court said in Rucker v. Hyde, 118 Tenn. 358, 100 S. W. 739, 741, that:
“No proof having been introduced to show that the foreclosure sale was not conducted strictly in pursuance of the directions of the trust deed, the recitals in the deed from the trustee to the purchaser at the foreclosure sale are sufficient evidence of such fact.”
In Naugher v. Sparks, 110 Ala. 572, 18 South. 45, 46, the court remarked that, in the case then under consideration, the—
“mortgage itself provided the conditions and terms of sale, and authorized the ‘auctioneer’ to convey the lands, by proper deed, to the purchaser. * * * The deed purports to be in execution of the power granted. We must presume the recitals are prima facie true, against the-mortgagor, the grantor of the power, and his privies. In the notes of the case of Tyler v. Herring (Miss.) 19 Am. St. Rep. 297, * * * Mr. Freeman declares the true rule to be ‘that the recitals made by the trustee surely must be taken as at least prima facie evidence of the existence of the matters therein stated.’ This is the law, as held in many well-considered opinions” (citing authorities.)
The court further remarked that such recitals are only prima facie evidence of the existence of the facts stated, but are not conclusive. In Roe v. Davis (Tex. Civ. App. 1912) 142 S. W. 950, the same doctrine is announced, and the court defended it on the ground that it is not only in harmony with the weight of authority, but necessary and expedient to the security of land titles. In Carico v. Kling, 11 Colo. App. 349, 53 Pac. 390, which, is the leading and pioneer Colorado case on the subject, it was contended by the appellant that the plaintiff in the trial court should have introduced evidence aliunde the deed for the purpose of showing that all the prerequisites mentioned in the trust deed had been complied with. The court held that the recitals were prima facie evidence of the facts, and that the burden of overcoming that evidence was upon the defendant. In Tyler v. Herring, supra, the court said that the true view was that the plaintiff begins and ends with the burden of proof, and that he makes out a prima facie case when he introduces the trustee’s deed, it then devolving on the defendant to- meet the case thus made.
In the. case at bar, the plaintiff made a prima facie case by the introduction of the deed made in pursuance of the power, which recited that the premises were duly advertised for public sale in the manner prescribed by said mortgage deed, and the testimony of the witness Williamson did not destroy that prima facie case, but rather strengthened it. Therefore the court did not err in finding that the notices of sale were given as required by law and the terms of the mortgage, and in not finding that the notices were not so given.
Appellant claims that the court should not have permitted the appellee to show that the mortgagor was present at the sale. We do not deem this assignment of any particular importance. It was a fact which might have had some bearing on the question of the affirmation of the sale by the mortgagor. From what we have said heretofore, it is plain that the mortgagor, by delay or acquiescence, may have affirmed the purchase by the mortgagee. The sale was not void because the mortgagee purchased the premises, assuming that J. S. Williamson was a mortgagee, but voidable only. The burden of avoiding the sale because of that fact was upon appellant.
The court found that the appellant- was a purchaser for value but that the recitals, disclosures, and contents of the “mortgagee’s deed” were sufficient to put the appellant on inquiry, and that reasonable inquiry would have led to' a knowledge of the superior and equitable rights of those claiming under J. S. Williamson as purchasers. Without setting out the evidence, it is sufficient to say that there is substantial evidence to sustain this finding made by the trial court. . ■
Many other questions are presented by appellant, but are either not properly before us or without merit.
The judgment is therefore affirmed, and it is so ordered.
Roberts, C.'J., and Parker, J., concur.