Weyburn v. Watkins

44 So. 145, 90 Miss. 728

Opinion

Watkins, Special Judge,

*

delivered the opinion of the court.

Upon the 23d day of October, 1896, Miss Eckford, of Aberdeen, Miss., who was the owner of two hundred and forty acres of land in Monroe county, Miss., conveyed the same to George F. Cleaver for a consideration of $3,960, $825 of which was paid in cash and the balance evidenced by the four promissory notes of the grantee, due December 20, 1897, 1898, 1899, and 1900, respectively, hearing interest at the rate of eight per cent per annum from their date; the notes being secured by a deed of trust covering the land conveyed, in which instrument W. H. Clifton was named as trustee. Some time during the year 1897 Miss Eckford, by assignment, transferred this indebtedness, with the security for the same, to Mrs. Anna L. Watkins, the appellee. This indebtedness, upon payment of the interest and the taxes on the property, was extended from year to year until the 2d day of February,, 1901, when Cleaver conveyed the land to the appellant for a cash consideration stated in the deed, and upon the appellant expressly assuming and agreeing to pay the indebtedness owing by Cleaver to the appelleee, being- the indebtedness secured by the deed .of trust referred to. On May 2, 1901, appellant conveyed this land to one Clark Gregory, upon the said Clark Gregory paying a stated consideration and the express assumption by the said Gregory of the aforementioned indebtedness. It ajipears that the interest was not paid upon the indebtedness for the year 1901 by Clark Gregory, as he agreed to do, and at the request of the appellee W. TI. Clifton, trustee, advertised the land for sale. The land was advertised December 19, 1901, in strict accordance with the terms of the deed of trust; notices being posted in three public places in Monroe county, Miss., for thirty days prior to .the date of the sale. It appears, however, that W. II. Clifton, trustee, in dating the notices, erroneously dated them December 19, 1902, instead of December 19, 1901, and the notices announced the sale would take place January 20, 1902. At the sale the appellee purchased the lands for $7 per acre, being the highest and best bid therefor. The amount bid for the land at the trustee’s sale was credited on the notes, and a demand was made on the appellant, who then resided in the state of Illinois, for payment of balance of $2,060, and, on the failure of the appellant to pay the deficit, suit was filed by appellee in the circuit court of Lee'county, 111., on April 3, 1903. This suit resulted in a judgment in favor of appellee against appellant on May 16, 1904, for the full amount of her demand. A motion for a new trial was entered in the cause, which motion was overruled by the court, and no appeal taken from the judgment. On September 13, 1904, an attachment suit was begun on this judgment in the circuit court of Noxubee county, Miss., against appellant as a nonresident, and certain lands owned by the appellant in that county were levied on under the writ, and since the filing of the original bill in this cause and prior to the final decree entered therein this attachment suit resulted in a personal judgment against the appellant for the full amount of the judgment recovered by appellee in the circuit court of Lee County, 111.

On December 20, 1901, the appellant exhibited his bill in the chancery court of Monroe county, Miss., in which he makes Clifton, trustee, and appellee Mrs. Watkins, defendants. Among other things the appellee alleges that the sale made hy Clifton,, trustee, to the appellee, on January 20, 1902, was made for a grossly inadequate price, and that the requirements of the deed of trust and of the law governing such sales were not complied with, and the same was invalid and illegal, and that the deed from Clifton, trustee, to the appellee, conveyed no title. The prayer of the appellant’s bill is that the sale made by Clifton, trustee, to appellee, be declared void and set aside; that the appellee be allowed to redeem the land, and a commissioner be appointed to sell the same. The chancellor in the court below, after hearing the proof, dismissed the appellant’s bill, and fropi the decree so doing this appeal is taken.

The question which presents itself in this record is as to whether or not the sale made by W. LI. Clifton, trustee, was a valid sale of the land in question? The testimony establishes the fact that the land was sold for.about forty per cent of its actual value. It is settled law, however, in this state, that a' sale of land made by a trustee, otherwise valid, will not he set aside for mere inadequacy of price, unless the inadequacy is such as to shock the conscience. ( While the sale of this land was for less than its actual value, we would be unwilling to disturb the sale on that account.

It is next contended by the appellant that the sale is defective because of the erroneous date at the bottom of the notices posted by the trustee. The notices stated that the land would be sold upon the 19th day of January, 1902, and the public were clearly and properly apprised of the time, place, and terms of the sale. The law deals with the contents of the notices, and with the lapse of time between the posting and the date of the sale, and not with an erroneous date inadvertently affixed thereto by the scrivener. According to the undisputed testimony, the notices were posted for more than thirty days prior to the sale. The sale was fairly and legally conducted, and every requirement of the deed of trust itself and of the law was strictly complied with. There is no pretense that there was any unfairness on the part of the appellee or of the trustee in conducting and making the sale. We are therefore of the opinion that the mere misdating of the notices on the part of the trustee does not render the sale invalid. We have carefully examined the case of Fenner v. Tucker, cited by learned counsel for the appellee, reported in 6 K. I., 551. In that case the notices of the sale stated that the land would be sold in one year, while, as a matter of fact, the land was sold in a subsequent year; whereas, in the present case, the notices correctly apprised the public as to the time, place, and terms of the sale, and the only mistake was the dating of the notices December 19, 1902, instead of December 19, 1901, which was a mistake of the scrivener, and in our judgment does not affect the validity of the sale.

It is further contended by counsel for the appellant that when the appellant conveyed the land in question to Clark Gregory, he himself was no longer liable to the appellee as the principal debtor, but was liable only as a surety, and that the extension of the indebtedness by W. II. Clifton, attorney for the appellee, during the year 1901, discharged the appellant from all liability on the notes, but the question is irrelevant to a proper determination of this case, because, whether the appellant was liable to the appellee as a principal debtor or merely as a surety, she had the legal right, upon default having been made in the payment of the indebtedness, to have the lands sold for the payment of her n'otes.

We are there therefore of the opinion that the judgment of the court below was correct, and the case should be affirmed.

Chief Justice Whitfield, being disqualified in this case, recused himself and William H. Watkins, Esq., a member of the supreme court bar, was appointed and commissioned to preside in his stead in this case.