Summary
In Blakeney, the deed of trust was signed by one of two grantors as B. Blackeney, but the trustee's notice of sale gave the name as B.B. Blackeney. The Court found that misnaming the mortgagor was a fatal error in the notice of sale and that this made the entire sale void, even though the notice correctly set forth the name of the other grantor and all the other information regarding the deed of trust sale. 183 So. at 922.
Summary of this case from Morton v. Resolution Trust Corp.Opinion
No. 33331.
October 17, 1938.
1. MORTGAGES.
The statute providing that notice of mortgage sale should disclose mortgagor's name, and that no sale should be valid unless advertised as provided, meant that, if name of mortgagor was incorrectly given in notice, sale thereunder is void (Code 1930, sec. 2167).
2. NAMES.
A person's "name" consists of one or more Christian or given names and one surname or family name.
3. NAMES.
The use of initials or first letters of the Christian name is permissible in designating a person.
4. MORTGAGES.
Where defendant's signature on deed of trust was "B. Blakeney," notice of trustee's sale designating him as "B.B. Blakeney" did not set forth his name correctly as required by statute, and sale was therefore invalid, notwithstanding that notice correctly set forth name of defendant's wife who signed deed of trust with him, the date of mortgage, fact that it was recorded in office of chancery clerk of county, and a description of land as set forth in deed of trust (Code 1930, sec. 2167).
APPEAL from the circuit court of Smith county; HON. EDGAR M. LANE, Judge.
Homer Currie, of Raleigh, for appellant.
Trustee's deed, which was admitted in evidence as an exhibit to the testimony of the witness, Holmes Tullos, clerk, over the objection of appellants, shows that the deed of trust attempted to be foreclosed was executed by one B.B. Blakeney and wife, Lillie Blakeney, as grantors. Then the deeds of trust are not admissible in evidence for the reason that neither of said instruments were executed by B.B. Blakeney, but by another person altogether, to-wit, B. Blakeney or Barney Blakeney, in so far as this record reflects. And besides these instruments were wholly irrelevant and immaterial to the issue if and when a valid trustee's deed is in evidence.
Smith v. Williams-Brooke Co., 111 Miss. 393, 71 So. 648.
Our courts have held repeatedly that the plaintiff in ejectment must maintain and prove his case by the strength of his own title, and not by the weakness of the title of the defendant. The relief afforded by ejectment is a special relief, and must be pursued in a court of law; equity rights not being recognized in such a proceeding.
Section 1427, Code of 1930.
This trustee's deed is not silent as to the advertisement of the proposed sale made by him, but explicitly states that it was by publication in the newspaper in the December 31st issue. Of course the statute which is attempted to be proceeded under is Section 2167, Code 1930 Mississippi. These things being true, we think the legal maxim of expressio unius est exclusio alterius applies, and that this recital in the trustee's deed overcomes the prima facie presumption that the trustee performed all of these acts in pais required of him. Quoting from Broom, Max. 651, 664, "The maxim restricts what is implied by what is expressed, what is general by what is particular and specific." In order for this trustee's deed to have been admissible in testimony, or evidence, the burden of proof further rested upon the plaintiff to prove that a notice of the sale was published in the newspaper for three consecutive weeks preceding such sale, covering at least twenty-one days next prior to the date of sale, naming the dates of the issues of the paper, and that the notice required to be posted at the courthouse was duly posted for said period of time. Since only the issue of December 31st was named in the trustee's deed, with no mention of the year, and since the deed recites that notice was posted December 17, 1936, certainly the burden of making this proof rested upon the plaintiff before the trustee's deed was admissible in evidence.
Section 2167, Code of 1930; McCaughn v. Young, 85 Miss. 278, 37 So. 839; Jones v. Frank, 85 So. 310; Fauntleroy v. Mardis, 85 So. 96.
Appellants contend also that the court erred in overruling and refusing them a peremptory instruction at the conclusion of all the evidence in the case.
Section 2167, Code of 1930.
The statute was designed, among other things, to give due publicity to sales under deeds of trust by requiring a reasonable notice of sale, the posting of one notice at the court house door of the county where the land is situated, and publication in a newspaper of that county, wise provisions calculated not only to give due notice to the owner of the land but also to prospective bidders.
Fauntleroy v. Mardis, 85 So. 96; Wilkerson v. Federal Land Bank of New Orleans, 168 Miss. 645, 151 So. 761; Federal Land Bank of New Orleans v. Robinson, 160 Miss. 546, 134 So. 180; Section 2167, Code of 1930. O.M. Oates, of Bay Springs, for appellee.
This record shows by the trustee's deed that this land was sold at public auction to the highest bidder for cash in front of the courthouse door at Raleigh, Mississippi, within legal hours, etc., just in accordance with the exact phraseology of the trust deed. Moreover, it further recites that it gave published notice for three consecutive weeks in the Smith County Reformer and the proof of publication shows the four issues.
Chandler v. Bank of Brooksville, 178 So. 797; Graham v. Fitts, 53 Miss. 307; Tyler v. Herring, 67 Miss. 169, 6 So. 840; Jones v. Frank, 123 Miss. 280, 85 So. 310.
We say that even though there is a latent defect in the trustee's deed as to naming the issues in which the notice was published, still this is perfected by the proof of the editor that it was in truth and in fact actually published as required by statute; that the failure of the deed to name the issues is just a latent ambiguity which may be explained by parole evidence. We met this by the proof of the publication of the editor.
Butler v. R.B. Thomas Co., 116 So. 824; Preacher v. Strauss, 47 Miss. 353; Hanna v. Renfro, 32 Miss. 125.
The notice, as a rule, should contain such facts as would necessarily apprise the public of the place, the time and terms of the sale and the property to be sold. But mere omissions and inaccuracies in these respects, not calculated to mislead, and working no prejudice, will not be regarded.
19 R.C.L. 598, sec. 413; Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973.
I then ask this court where is the prejudice that came to appellant because an added "B" was given to his initials when it brought more than he had in it. Where is the fraud? I am unable to see.
In the case of Butler v. R.B. Thomas Co., 116 So. 824, it is said: "Trustee's deed on sale under a deed of trust designating the land sold by proper section, township and range, is not void for uncertainty because omitting to designate county and state in which it is situated; there being created a mere latent ambiguity which may be explained by parole evidence."
Counsel made mention of the sale of this property to the state in his statement of facts for non-payment of taxes, but makes no argument on this. Perhaps, because he knew the doctrine of estoppel would apply to Blakeney where he let his land sell for taxes and through mesne conveyances purchases it back from the state, it would revive the trust deed against him; that one could not take advantage of after acquired title to gain advantage of his own obligation.
Martin v. Raleigh State Bank, 111 So. 448; Raleigh State Bank v. Williams, 117 So. 365.
Argued orally by Homer Currie, for appellant, and by O.M. Oates, for appellee.
This is an action of ejectment by the appellee to recover the possession of land alleged to be withheld from him by the appellant.
On the seventh day of April, 1931, the appellant, Barney Blakeney, the then owner of the land, and his wife, Lillie Blakeney, executed a deed of trust on the land to Oates, Trustee, to secure an indebtedness to the appellee, J.E. Smith. The appellant did not sign this deed of trust with his full Christian name, his signature being B. Blakeney. Default having been made in the payment of the debt secured by this deed of trust, Oates, the trustee therein, advertised it for sale as follows:
"Notice of Trustee's Sale
"Whereas, on April 7, 1931, B.B. Blakeney and wife, Lillie Blakeney, made executed and delivered to me, as trustee, for the use and benefit of J.E. Smith, their deed of trust on certain property to secure a promissory note of even date due September 1, 1931, for value received, said deed of trust being recorded in the office of the Chancery Clerk of Smith County, Mississippi."
After reciting a default in the payment of debt secured by the deed of trust, the notice proceeds: "notice is hereby given that I will offer for sale and will sell to the highest and best bidder for cash, at public auction, within legal hours, and in front of the Court House door of Smith County, at Raleigh, Mississippi, on the 8th day of January A.D. 1937, the following described property in said deed of trust, to-wit:
"E 1/2 of NW 1/4 Section 32, Township 2, Range 9, East, Smith County, Mississippi.
"I will convey such title as is vested in me as trustee.
"This the 17th day of December A.D., 1936."
The appellee, Smith, became the purchaser of the land at the sale thereof pursuant to this notice, and a deed thereto was executed to him by Oates, trustee. His title to and right to possession of the land rests on the validity of this deed, the validity of which in turn rests on the validity of the notice of the sale under the deed of trust.
The Court below refused to direct a verdict for the appellant, but directed one for the appellee and rendered a judgment accordingly.
Sec. 2167, Code of 1930, provides that sales of land under deeds of trust or mortgages shall be advertised in a specified manner and for a specified time, "and such notice and advertisement shall disclose the name of the mortgagor or mortgagors whose property is advertised for sale. No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year statute of adverse possession." This requirement, ex vi termini, means that the name of the mortgagor must be correctly given, and if the wrong name is given a sale under the notice is void. 41 C.J. 951; 3 Jones on Mortgages, 8th Ed., Sec. 2383. A person's name consists of one or more Christian or given names and one surname, or family name. 45 C.J. 367; Haywood v. State, 47 Miss. 1. The use of initials or first letters of the Christian name is permissible in designating the person. 45 C.J. 373. The mortgage under which this land was sold was signed by the mortgagor, not with his full Christian name of Barney, but B. Blakeney, and had the notice of sale so designated him it would have been sufficient. B.B. Blakeney is another and different name, and, therefore, cannot be held to refer to B. Blakeney.
We are not confronted with a notice wherein only one of a mortgagor's several Christian names, or the initials of only one thereof, is given; nor with a misspelled name, but with a notice attributing to the mortgagor two Christian names, each of which begins with the letter B, when in fact he had only one such name. This notice has the same legal effect as if it had designated the mortgagor as Benjamin Barney Blakeney, a wholly incorrect and different name.
But counsel for the appellee say that the identity of the mortgagor is sufficiently indicated by the recital in the notice of (1) the name of his wife who signed the mortgage with him; (2) the date of the mortgage and that it was recorded in the office of the Chancery Clerk of Smith County, Mississippi, and (3) a description of the land as set forth in the deed of trust.
A sufficient answer to this is that the statutes require the identity of the mortgagor to be disclosed by setting forth his name. Moreover, had the notice given the book and page of the mortgage, that fact would not have cured the failure of the notice to substantially set forth any matter required to be set forth therein. Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973, 71 Am. St. Rep. 536. The notice not being in conformity with the requirement of Section 2167, Code of 1930, the sale thereunder is void for the section expressly provides that "no sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for."
"The statute is clear, and we cannot avoid the effect of noncompliance therewith, although it may impose regrettable hardship upon persons who have not observed its provisions." Wilkinson v. Federal Land Bank of New Orleans, 168 Miss. 645, 150 So. 218, 151 So. 761, 763.
The Court below should have granted the appellant's request for a directed verdict, for which error its judgment will be reversed and judgment will be rendered here for the appellant.
So ordered.