McSwain v. Young

72 So. 129, 111 Miss. 686

• Court: Mississippi Supreme Court
• Decided: March 15, 1916
• Status: Published

Opinion

Potter, J.,

delivered the opinion of the court.

C. A. McSwain filed a suit in ejectment against Clark Young and L. B. Hammond in the circuit court of Perry county for the possession of a certain tract of land situated in the said county. The appellant and the defendants in this suit claimed title from a common source, and it is conceded that the plaintiff was entitled to recover unless a certain trustee’s deed under which the defendants claim is valid. The court below held the trustee’s deed in question a valid deed and directed a verdict peremptorily for the defendants.

In the trial of this case the defendant introduced _ proof of three newspaper notices of sale under the deed of trust for the purpose of showing that the trustee advertised the land in question for three weeks. These notices show that the property was advertised in the Perry County News on July 3d, July 10th, and July ,17th. There were three appearances of the notice. The sale was made on July 21st, hut there was not three weeks between the first publication and the date of sale. Ordinarily the presumption is to be indulged that the trustee did everything necessary for a valid exercise of, the power of sale, hut in this case the defendant undertook to show in what manner the property in question was advertised under the deed of trust, and from his showing it appears affirmatively that section 1607, providing for three weeks’ notice of sale, had not been -complied with, and the sale thereunder is void. Tyler v. Herring, 67 Miss. 172, 6 So. 840, 19 Am. St. Rep. 263; Smith v. Kirkland, 89 Miss. 647, 42 So. 285; Wilczinski v. Watson, 69 So. 1009.