Opinion
No. 32688.
April 12, 1937.
MORTGAGES.
Mortgagee which had foreclosed deed of trust and received trustee's deed to property in 1933 held not entitled to maintain suit for unlawful entry and detainer in 1936, where there was no contract between mortgagors and mortgagee after foreclosure and mortgagors remained in possession until after institution of suit in 1936 (Code 1930, secs. 3456, 3468).
APPEAL from circuit court of Stone county. HON.W.A. WHITE, Judge.
T.J. Wills, of Hattiesburg, for appellants.
The court was without jurisdiction to try this cause for the reason that it was not instituted within one year after the expiration of the right of the defendants to the possession of the said property.
Chapter 69, Code of 1930, section 3456, provides that the remedy of unlawful entry and detainer is available to a person deprived of the possession, who shall bring the proceedings within a year after the expiration of the right of the occupant to the possession of the said property.
Robinson v. Boggan, 97 Miss. 27, 52 So. 705.
The foreclosure sale was void. The trustee's deed to the appellee was void. The bank was never in possession of the property. They, therefore, had not been deprived of the possession. The possession was withheld from it. Its right to possession rested upon the deed and not upon an eviction from the premises. The bank, in order to establish its right to possession of the property, was forced to introduce the trustee's deed. The trustee's deed shows on its face that the sale was made contrary to a paramount law and in violation of a presidential proclamation, issued under the Act of Congress, restraining the bank from transacting any business. The deed was therefore void. It gave to the appellee no right of possession whatever.
Gardner v. Cook, 173 Miss. 244, 158 So. 150.
Another reason why the deed was void, as is shown on its face, is that having been made at a time when all money was locked and sealed within the vaults of the bank, by presidential proclamation, issued under the authority of law, the bank bid in property for which $4000 was paid before the improvements were put on it, and property on which the bank had loaned $700, at and for the consideration of $75. This consideration of $75 under the circumstances is such as would shock the conscience of a court and render the sale and the trustee's deed carrying out the terms of the sale a nullity.
Blacketor v. Cartee, 172 Miss. 889, 161 So. 696.
The court was in error in excluding the testimony offered to show the value of the property at the time of the sale and in refusing to permit counsel, representing the defendants, appellants here, to put in the record the facts that he proposed to show with respect to the value of the property.
Gardner v. Cook, 173 Miss. 244.
U.B. Parker, of Wiggins, for appellee.
We agree that the cause of action in unlawful entry and detainer must be begun within twelve months after the owner is put out of possession or after the possession of appellant assumed an adverse character to that of the bank, but the facts in this case abundantly show that this cause of action was begun within twelve months. And it is for that reason that we introduce the letter to appellants demanding that possession of the property be surrendered on or before the 15th day of June, 1936; the suit herein having been instituted in the justice court on August 17, 1936, just sixty-two days after this demand was made for possession of the property and such was refused; just sixty-two days after the possession of appellants assumed an adverse character to the right of the appellee.
Williams v. Johnson, 175 Miss. 419, 167 So. 639.
On this record and the holding of this court in Williams v. Johnson, supra, we rest our contention that this suit was brought within the time allowed by statute.
No authority is advanced for the statement and claim that this sale is void because it was advertised for and made on the 6th day of March, 1933; and we are frank to say to the court that no such exists and that it is the wildest stretch of the imagination to make such a claim.
There are two very recent cases on the subject of sales of land under mortgages on averments of inadequacy of price based on general economic conditions, and in both instances the court refused to cancel.
Denson v. Provident Mutual Life Ins. Co., 166 So. 33; Pruitt v. Commercial Nat. Bank of Anniston, 160 So. 540.
We recognize the rule that where the consideration in a trustee's deed to the holder of a deed of trust is ridiculously inadequate and is accompanied by fraud, oppression, or deceit, then the conveyance will be set aside; but in no case has this court or any other court, as far as the writer has been able to find, set aside such a conveyance for inadequacy of consideration alone unaccompanied by fraud, oppression or deceit and authorized the cancellation of a conveyance. Every decision in the state of Mississippi where a conveyance under deeds of trust has been set aside for inadequacy of consideration, we say that such was accompanied by fraud and deceit or an abuse of confidence.
Foster v. Campbell, 145 Miss. 502, 113 So. 550; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3.
This cause should be affirmed and the judgment entered in the court below should be recognized and enforced, so that appellee may have possession of the property immediately now, in order that it may have the use of the farm this year without any further quibbling.
On April 3, 1930, Abel Anthony and his wife executed a deed of trust to the Bank of Wiggins to secure a loan of $700 bearing interest at 8 per cent. per annum with provision for 15 per cent. attorney's fees. One day after the President's proclamation closing all the banks of the country for a limited period, on March 6, 1933, the Bank of Wiggins foreclosed this deed of trust, bid the land in for $75, and the trustee executed a deed to the bank, but no steps were taken to secure possession of this land until the institution of the unlawful entry and detainer suit on August 17, 1936, except that in June, 1936, a written notice was given to Abel and his wife to vacate the premises.
This suit is one for unlawful entry and detainer, and was not instituted within one year after the right of possession of the bank accrued under the trustee's deed. In the court below, the appellant raised this point, but this was overruled by the court.
The appellants sought to show also that the property had been bought by them in 1929 for $4000 and the court below refused to permit them to show this value. However, it is not necessary to consider these points, as we have reached the conclusion that the appellee had no right to the remedy of unlawful entry and detainer at the time the suit was instituted. Section 3456, Code 1930, reads as follows:
"Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed."
This remedy, if seasonably applied for, is available to the mortgagee, or the beneficiary in the deed of trust, where possession is withheld after foreclosure. The right of possession certainly accrued in the case at bar at the end of the year 1933, and would have accrued immediately on the foreclosure of the deed of trust but for the provisions of section 3468, Code 1930, which gives the mortgagor the right to gather the crops, if any, planted by him, and grown, or growing on the premises. The right to gather crops could not, of course, have existed any longer than the last day of 1933.
The testimony shows that there was no contract between the appellants and the appellee, after the foreclosure, but that the appellants remained in possession until after the institution of the suit in 1936. Consequently, the right of the appellee to proceed in this suit for unlawful entry and detainer did not exist. The appellees, of course, were not entitled to the peremptory instruction given them by the court below, consequently the judgment of the court below will be reversed and the suit dismissed.
Reversed and suit dismissed.