Enochs v. Miller

60 Miss. 19

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The deed ivas not void for uncertainty. Land described as a specified number of acres of the south, or north, or east,- or west part of a particular section, or legal subdivision of a section, is perfectly well described, and there is not the slightest difficulty in laying it off, as has been at least twice decided by this court. Bowers v. Chambers, 53 Miss. 259; McCready v. Langsdale, 58 Miss. 879.

Where a sale in pais is made by a trustee under an instrument conferring a power of sale upon him under certain prescribed terms and conditions, a substantial compliance with the mode, manner, and terms prescribed is essential to pass the title, and any disregard of them in any important respect will vitiate the sale. The making of the deed is prima facie evidence that the sale was properly made, and will throw upon him who attacks or resists it the burden of showing the contrary.

In the present case the defendants assumed, and successfully met, this burden by proving that the sale took place upon twenty-six days’ notice, instead of thirty, as was required by the deed of trust under which it was made. The court below properly held that the purchaser acquired no title. 2 Perry on Tr., sect. 602, p. 307 ; 2 Jones on Mort., sect. 1822 et seq.; Walker v. Brumgard, 13 Smed. & M. 763 ; Wightman v. Reynolds, 24 Miss. 681; Wade v. Thompson, 52 Miss. 367 ; Fitts v. Graham, 53 Miss. 307.

Affirmed.