Smith v. Kirkland

42 So. 285, 89 Miss. 647

• Court: Mississippi Supreme Court
• Decided: November 15, 1906
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

If appellees had relied in the court below on the legal presumption arising from the execution of the trustee’s deed that notice had been properly posted, the case might possibly be affirmed. But appellee, not choosing to do this, introduced testimony for the purpose of showing that the notices had been duly posted according to the provisions in the trust instrument, which testimony clearly, proves the contrary — that they had not been so posted. We have, therefore, a case in which the presumption is out of-the way, and the decision must turn on the evidence; and on the evidence there is a failure to show proper posting of the notices.