Opinion
No. 36090.
September 23, 1946. Suggestion of Error Overruled November 11, 1946.
1. MORTGAGES.
The statute providing that all lands comprising a single tract and wholly described by subdivisions of the governmental surveys, sold under mortgages and deeds of trust, shall be sold in manner provided by the constitution for sale of lands in pursuance of a court decree, or under execution, is in derogation of the common law, and therefore the requirements thereof must be strictly followed (Code 1930, sec. 2167).
2. MORTGAGES.
Where land covered by trust deeds lay in two counties and constituted one single tract wholly described by subdivisions of governmental survey, but trustees published notices of foreclosure sales only in county where most of the land lay, sale was void because of violation of mandatory clause of statute, notwithstanding provision in trust deeds empowering trustees to sell the realty after having given notice by publication in that county where the majority of the land lay (Code 1930, sec. 2167; Const. 1890, sec. 111).
APPEAL from the chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Butler Snow, of Jackson, and Bridgforth Love, of Yazoo City, for appellants.
The Yazoo County sale is good and valid.
Connecticut General Life Ins. Co. v. Lombard (Miss.), 185 So. 260; Goodman v. Durant Building Loan Ass'n, 71 Miss. 310, 14 So. 146, 147; Lynchburg Shoe Co. v. Castleman, 116 Miss. 188, 76 So. 878; Davis v. O'Connell, 92 Miss. 348, 47 So. 672; Melsheimer v. McKnight, 92 Miss. 386, 46 So. 827; Williams v. Dreyfus, 79 Miss. 245, 30 So. 633; Code of 1892, Sec. 2484; Code of 1930, Secs. 2167, 2169, 2772, 2821.
The Yazoo County sale is good and valid as to the Yazoo County lands. The terms of the power of sale in the instant deed of trust, restricted by the requirements of Code of 1930, Section 2167, as to the place of sale, did not empower the trustee to sell both the Madison County and the Yazoo County lands in Yazoo County. To have a legal sale of all the lands embraced in this deed of trust it was necessary to sell the Yazoo County lands in Yazoo County and the Madison County lands in Madison County.
Goodman v. Durant Bldg. Loan Ass'n, supra; Williams v. Dreyfus, supra; Davis v. O'Connell, supra; Melsheimer v. McKnight, supra; Lynchburg Shoe Co. v. Castleman, supra; Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218; Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 704, 89 L.Ed. 1296, 1307; Code of 1930, Secs. 2167, 2169; Laws of 1896, Ch. 103.
The cause must be dismissed as to all land situated in Yazoo County, the bill of complaint alleging no defect as to the Yazoo County sale of the Yazoo County lands.
Harvey v. Kelly, 41 Miss. 490; United States Casualty Co. v. Malone, 126 Miss. 288, 88 So. 709; Connecticut General Life Ins. Co. v. Lombard, supra; Opinion of Judge S.C. Mize in No. 273, Rawlings, Receiver, v. Gulf Refining Co. et al., U.S. Dist. Ct., Hattiesburg Division, Southern District, Mississippi; Griffith's Mississippi Chancery Practice, Secs. 166, 171, 175, 191, 565.
Admitting for argumentative purposes only that the bill of complaint does properly allege that the notice of sale did describe the Madison County lands as well as the Yazoo County lands and that the trustees did call off the Madison County lands at the sale, still the court is not required to find as a result of these facts that confusion of bidders or suppression of bidding resulted in view of the facts of this case as hereafter developed.
Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851; Fenner v. Tucker, 6 R.I. 551; Peoples Savings Bank v. Wunderlich, 178 Mass. 453, 59 N.E. 1040; Crist v. House Osmonson, Inc., et al. (Cal.), 61 P.2d 758; Chace v. Morse, 189 Mass. 559, 76 N.E. 142; Schoch v. Birdsall, 48 Minn. 441, 51 N.W. 382, 383; Baca v. Chevez, 32 N.M. 210, 252 P. 987.
Wells, Wells, Newman Thomas, of Jackson, for appellees.
Failure to publish and post notice of sale in Yazoo and Madison Counties clearly and entirely invalidated the sale as to both Madison and Yazoo County lands.
Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218; Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 704, 89 L.Ed. 1296, 1307; Code of 1892, Sec. 2443; Code of 1906, Secs. 2169, 2772, 2821; Code of 1930, Sec. 2167; Constitution of 1890, Sec. 111; Laws of 1896, Ch. 103, p. 109; 3 Jones on Mortgages (3 Ed.), Sec. 2285.
The lands described in the deed of trust which were attempted to be advertised for sale and attempted to be sold were situate in two counties and constituted one single tract, wholly described by subdivision of the governmental survey.
Brown v. British American Mortgage Co. et al., 86 Miss. 388, 38 So. 312; Rawlings v. Anderson, 149 Miss. 632, 115 So. 714; Baker v. Connecticut General Life Ins. Co. et al., 196 Miss. 701, 18 So.2d 438; Wells et al. v. Brooks, 199 Miss. 327, 24 So.2d 533; Gray v. Sullivan, 162 Miss. 610, 139 So. 855; Code of 1930, Sec. 2167; Constitution of 1890, Sec. 111; 49 Am. Jur. 541, Sec. 216.
Had the lands in question, located in Yazoo and Madison Counties, been properly advertised for sale, all of said lands could have been legally sold at the court house door in Yazoo County, Mississippi.
Goodman v. Durant Building Loan Ass'n, 71 Miss. 310, 14 So. 146; Lynchburg Shoe Co. v. Castleman, 116 Miss. 188, 76 So. 878; Williams v. Dreyfus, 79 Miss. 245, 30 So. 633; Davis v. O'Connell, 92 Miss. 348, 47 So. 672; Melsheimer v. McKnight, 92 Miss. 386, 46 So. 827; Sharpley v. Plant, 79 Miss. 175, 28 So. 799; Polk et al. v. Dale, 93 Miss. 664, 47 So. 386; Code of 1930, Secs. 2167, 2169.
The foreclosure sale was utterly void because the advertisement thereof was not in conformity with that prescribed by Section 2167, Code of 1930.
Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96; Wilczinski v. Watson, 110 Miss. 86, 69 So. 1009; Connecticut General Life Ins. Co. v. Lombard (Miss.), 185 So. 260; Mississippi Power Co. v. May, 173 Miss. 580, 161 So. 755; Anderson v. Franklin County School Board, 164 Miss. 646, 146 So. 134; Goodman v. Durant Building Loan Ass'n, supra; Hancock et al. v. Pyle et al., 191 Miss. 546, 3 So.2d 851; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3; Pruitt et al. v. Dean et al., 198 Miss. 71, 21 So.2d 300; Opinion of Judge S.C. Mize in No. 273, Rawlings, Receiver, v. Gulf Refining Co. et al., U.S. Dist. Ct., Hattiesburg Division, Southern District, Mississippi; Sedgwick et al. v. McOwen et al., 197 N.Y. Supp. 869; Grundy Co. Nat. Bank et al. v. Sanford et al., 281 Ill. App. 464; Code of 1930, Sec. 2167; 2 Wiltsie on Mortgage Foreclosure, Sec. 872; 3 Jones on Mortgages (8 Ed.), Sec. 2376.
Failure to advertise in Madison County, when the notice of sale which was advertised only in Yazoo County specified that all lands embraced in the subject deed of trust located both in Yazoo County and Madison County were offered for sale and would be sold, and the acts of the trustee in selling or attempting to sell all said lands, so misled and confused the prospective bidding public, and injured the mortgagors, as to invalidate completely said sale, not only as to the Madison County lands but also as to the Yazoo County lands.
Wilkinson v. Federal Land Bank, supra; Hancock et al. v. Pyle et al., supra; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Jefferson v. Walker et al., 199 Miss. 705, 24 So.2d 343, 26 So.2d 239; Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973; Wilczinski v. Watson, supra; Fauntleroy v. Mardis, supra; Hood v. Foster, 194 Miss. 812, 13 So.2d 652; Tamburo v. Standard Oil Co., 164 Miss. 386, 145 So. 107; Fenner v. Tucker, 6 R.I. 551; Peoples Savings Bank v. Wunderlich, 178 Mass. 453, 59 N.E. 1040; Code of 1930, Sec. 2167; Code of 1942, Secs. 9773, 9775; 3 Jones on Mortgages (8 Ed.), Sec. 2380. Lotterhos, Travis Dunn, Satterfield, Ewing Hedgepeth, Green Green, Irwin W. Coleman and C.C. Richmond, all of Jackson, Travis Travis and Hathorn Hathorn, both of Hattiesburg, Lee D. Hall, of Columbia, R.L. Jones, of Brookhaven, and John E. Green, of Houston, Tex., amici curiae for appellee.
Where land covered by trust deed is located in two counties, in order to have valid foreclosure there must be posting and publication in both.
Connecticut General Life Ins. Co. v. Lombard (Miss.), 185 So. 260; Code of 1930, Sec. 2167, Code of 1942, Sec. 888.
See Anderson v. Franklin County School Board, 164 Miss. 646, 146 So. 134; Mississippi Power Co. v. May, 173 Miss. 580, 161 So. 755.
Compare Meyerkort v. Warrington, 19 So.2d 433, 198 Miss. 29, 20 So.2d 708; Board of Sup'rs of Marshall County v. Stephenson, 130 So. 684, 160 Miss. 372, 134 So. 142.
The Mississippi statute, apart from the Lombard case, supra, has been effectually and adequately considered to invalidate such a sale by requiring both publication and posting.
Brown v. British American Mortgage Co., 86 Miss. 388, 38 So. 312; Baker v. Connecticut General Life Ins. Co., 196 Miss. 701, 18 So.2d 438, 440; Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218; Connecticut General Life Ins. Co. v. Lombard, supra; Wilczinski v. Watson, 110 Miss. 86, 69 So. 1009; Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96; Booker v. Federal Land Bank, 175 Miss. 281, 164 So. 877; Jones v. Frank, 123 Miss. 280, 85 So. 310; Polk v. Dale, 93 Miss. 664, 47 So. 386; Sharpley v. Plant, 79 Miss. 175, 28 So. 799; Code of 1880, Sec. 1237; Code of 1892, Secs. 2443, 2484; Code of 1906, Sec. 2772; Code of 1930, Sec. 2169; Constitution of 1890, Sec. 111; Laws of 1896, Ch. 103; Laws of 1908, Ch. 180. White Morse and Mize, Thompson Mize, all of Gulfport, W.E. Morse, of Jackson, and Ralph B. Shank, of Dallas, Tex., amici curiae on interpretation of Section 2167, Code of 1930.
The deed of trust embraced lands in two counties; under the statutes the parties could contract the county in which the sale was to take place. They contracted for Yazoo County; the substituted trustee published the notice in Yazoo County, and posted the notice of sale in both Madison and Yazoo Counties, as required by statute. The trustee offered the tracts in parcels of 160 acres, and offered the property as a whole, when G.P. Cook became the best and highest bidder, and the property was struck off to him for a consideration of $4,000.00. There was no fraud, no act was done in violation of statute, and the terms of the trust contract were complied with. Under the decisions of the State, deeds of trust are contracts, and if there had been a compliance with the terms of the deed of trust, and if the foreclosure is not in conflict with statutory law, then the foreclosure must be upheld.
Code of 1930, Sec. 2167; Connecticut General Life Ins. Co. v. Lombard (Miss.), 185 So. 260; Wilczinski v. Watson, 110 Miss. 86, 69 So. 1009; Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96; Baldwin v. Jenkins, 1 C. 206; Mason v. Moody, 4 C. 184; Codes of 1798 to 1848, Chs. 42, 45, also Art. 2, Ch. 45, Hutchinson's Code of 1840; Code of 1857, pp. 308, 309; Code of 1871, Art. 2, Ch. 52, also Art. 3, Ch. 52; Code 1880, Sec. 1203-1204, inc. Ch. 44; Johns v. Sergeant, 45 Miss. 332; Buck v. Payne, 52 Miss. 271; Code of 1892, Sec. 2443, also Secs. 2484, 3486, 1526; Tyler v. Herring, 67 Miss. 169, 6 So. 840; Vaughn v. Powell, 65 Miss. 401, 4 So. 257; Dunton v. Sharpe, 70 Miss. 850, 12 So. 800; President, etc., of Planters Bank of the State v. Walker, 3 Smedes M. (11 Miss.) 409; Hamilton v. Halpin, 68 Miss. 99, 8 So. 739; Laws of 1896, Ch. 103, S.B. 106; Laws of 1896, Ch. 96, Sec. 2484, Code of 1892; Code of 1906, Secs. 2772, 2822; Laws of 1908, Ch. 180, amend. Sec. 2772, Code 1906, Ch. 103; Code of 1942, Sec. 888; Davis v. O'Connell, 92 Miss. 348, 47 So. 672; Sims v. Hundly, 2 How. (3 Miss.) 896; Constitution of 1890, Sec. 112; Code of 1906, Secs. 2821, 3982, 3984; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; White v. Miller, 162 Miss. 296, 139 So. 611; Laws of 1906, Ch. 103; Kelso v. Robinson, 172 Miss. 828, 161 So. 135; Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218, 151 So. 761; Laws of 1934, Ch. 248; Blakeney v. Smith, 183 Miss. 151, 183 So. 920; Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973; Code of 1942, Sec. 891; Smith v. Walsh, 63 Miss. 584; Paulle v. Wallis, 58 Minn. 192, 59 N.W. 999; Crandall v. Title Guaranty Tr. Co. et al. and Title Ins. Tr. Co. et al. v. Crandall, 37 Pa. 2d 519; Davidow et al. v. Corporation of Am. et al., 60 Pa. 2 d 132; Tom v. Kennedy Nat'l Farm Loan Ass'n, 123 S.W.2d 416; Kelly v. Skates, 117 Miss. 886, 78 So. 945; Chandler v. Peters, 44 S.W. 867; Code of 1892, Sec. 2443; Brown v. British American Mortgage Co., 86 Miss. 388, 38 So. 312; McClusky v. Trussel, 90 Miss. 544, 44 So. 69; Provine et al. v. Thornton et al., 92 Miss. 395, 46 So. 950; Hamilton v. Federal Land Bank, 184 Miss. 878, 186 So. 832; 41 C.J. 971, Sec. 1423; 2 Perry on Trusts (7 Ed.), p. 1051; Baker v. Connecticut General Life Ins. Co., 196 Miss. 701, 18 So.2d 438; Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851; Pruitt v. Dean, 198 Miss. 71, 21 So.2d 300, 916, 200 Miss. 167, 26 So.2d 342.
White Morse and Mize, Thompson Mize, of Gulfport, W.E. Morse, of Jackson, and Ralph B. Shank, of Dallas, Tex., amici curiae, on suggestion of error.
The policy of Section 2167 of the Code of 1930 is to give ample advertisement to the trustee's sale.
Which construction furthers the policy of Section 2167? Under the Court's construction of Section 2167 a sale may take place without notice of any kind in the county of sale unless said county is also the county in which the land is situated, because, under the Court's construction, the publication in the newspaper and the notice by posting need only be in the county or counties where the land is situated. Under appellant's construction of Section 2167 a sale could never take place without notice in the county of sale, because, under appellant's construction the sale must be advertised by publication in a newspaper in the county of sale, and must be advertised by posting in the county or counties where the land is situated.
The court erred in holding that publication of the notice of sale in a newspaper published in Madison County was necessary to the validity of the trustee's sale. Section 2167 of the Code of 1930 provides for advertising of a trustee's sale, (1) by publication of notice of sale in a newspaper published in the county of sale, and (2) by posting notice of sale in the county where the land is situated. The statute requires no more and no less advertising. The purpose and intent of the statute is "to give ample advertisement to the sale" and the Court's holding defeats this purpose, for under it a trustee's sale may take place without notice of any kind in the county of sale. The court's holding leads to absurd results in that, when the trustee's sale takes place in a county other than one where the land is situated, no advertising whatsoever is required in such county of sale, while a duplication of advertisement (in newspaper and by posting) is required in the county where the land is situated. The court's holding is contrary to the express terms of Section 2167 of the Code of 1930 and admittedly the court was not bound by precedent.
See Booker v. Federal Land Bank, 175 Miss. 281, 164 So. 877; Fauntleroy v. Mardis, 123 Miss. 353, 85 So. 96; Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218, 151 So. 761; Clarke v. Treasurer and Receiver General (Mass.), 115 N.E. 416; Hellmich v. Hellman, 276 U.S. 233, 72 L.Ed. 544; Jones v. Pebler, 371 Ill. 309, 20 N.E.2d 592; United States v. A.T. S.F.R. Co., 220 U.S. 37, 55 L.Ed. 361.
Argued orally by Walter R. Bridgforth, and Chas. B. Snow, for appellants, and by Earl T. Thomas, for appellees.
The question for decision involves the foreclosure of a deed of trust to lands in both Yazoo and Madison Counties, all in one body. The appellees, as complainants in the trial court, brought suit to cancel the trustee's deed to appellant Cook, and certain subsequent transactions affecting the land, as clouds on their title to the lands so located. Appellants, as defendants, demurred to the bill; demurrer was overruled, and appeal granted here to settle all the general controlling principles of the case.
The complaint charged that the trustee's deed to appellant was void and of no effect; and that the foreclosure sale was not valid and did not divest the title to said lands out of complainants, mortgagors. The reason assigned is: "That the property conveyed and described by the deed of trust shown as Exhibit A hereto, lies in two counties, to-wit: in the County of Madison and in the County of Yazoo, and that said substituted trustee, in attempting to foreclose said deed of trust, wholly failed and neglected (a) to advertise the sale of said lands for three consecutive weeks preceding such sale in a newspaper published in Madison County, Mississippi, although a newspaper is regularly published in said last mentioned county, and (b) to post a notice of such sale of lands at the courthouse of Madison County, in Canton, Mississippi, for such time, both of which are required by the laws of the State of Mississippi, and particularly Sections 2167, 2162 and 2168 of the 1930 Mississippi Code Annotated, to make and effect a good and lawful sale, and that said substituted trustee attempted to conduct said foreclosure sale after having published an incorrect, insufficient and void notice in a newspaper published in Yazoo County, Mississippi, and after having posted an incorrect, insufficient and void notice at the courthouse in Yazoo County, Mississippi, notwithstanding the necessity under the law of posting and publishing as required by law a notice of sale in both Yazoo County and Madison County, Mississippi."
The foreclosure was had on January 2, 1933, and trustee's deed executed the same day. The land is described as "The Northeast Quarter and the North Half of the Southeast Quarter and the Northeast Quarter of the Southwest Quarter of Section 1, Township 11, Range 2 East, the North Half and the North Half of the Southwest Quarter of Section 5, Township 11, Range 3 East, the North Half and the North Half of the South Half of Section 6, Township 11, Range 3 East; the East Half of the Southeast Quarter of Section 36, Township 12, Range 2 East, the Southwest Quarter and the West Half of the Southeast Quarter of Section 31, Township 12, Range 3 East, and the Southeast Quarter of the Southwest Quarter of Section 5, Township 11, Range 3 East, all of said land except that part of said section 5, which lies south and east of Big Black River being in Yazoo County, and State of Mississippi, and that lying south and east of said river being in Madison County in said state."
The power of sale in the trust deed provides that the trustee ". . . shall proceed to sell said land and property, or a sufficiency thereof to satisfy the indebtedness aforesaid, then unpaid, after having first given notice of the time, place and terms of such sale, together with a description of the property to be sold, by publication in some newspaper published in said Yazoo County, Mississippi, for three consecutive weeks next preceding the date of such sale, and by posting a notice similar to the published notice at the main front door of the county Courthouse of Yazoo County, in said state, for said time, . . . ."
The trustee's advertisement of the sale, both in the newspaper and in the posted notice, and the trustee's deed, all contained the same description. The sale was advertised only in Yazoo County. It was published in a Yazoo City newspaper and posted at the courthouse, and was made at the main door of the courthouse in Yazoo County. The trustee's deed contains the following recital: "Whereas, on the date and at the place aforesaid and at the hour of 2:20 o'clock P.M., I did offer said property for sale at public auction, pursuant to said notice, when G.P. Cook appeared and bid therefor the sum of $4,000.00, which said bid was the highest and best bid received for said property and the same was therefore knocked off to the said G.P. Cook and he declared the purchaser thereof. I first offered said property in separate lots and parcels and then offered the same as a whole and the bid aforesaid was more than the aggregate of all of the bids received for said property in separate lots and parcels." The trustee's deed then conveyed all of said land to appellant G.P. Cook for the said price of $4,000.00.
Special Demurrer No. 1 filed by appellants challenging the original bill of complaint, in its pertinent part, is as follows: "The bill of complaint shows on its face that in any event the larger portion of the land covered by the deed of trust is situated in Yazoo County, Mississippi, and that the sale was had in Yazoo County, Mississippi, and the advertisement thereof was had and notice posted in Yazoo County, Mississippi, for the time and in the manner as required by law and the consequent sale of said land valid." Appellants argue that the original bill does not recognize their view that under the law of Mississippi it would be impossible to foreclose this deed of trust in any manner than by holding a sale in Madison County for the Madison County lands, and a sale in Yazoo County for the Yazoo County lands. They further argue that the sale was perfectly good as to the Yazoo County lands, and that no sale was made of the Madison County lands, so therefore, they say, their special demurrer should have been sustained instead of overruled, as it was by the chancery court.
The appellees, on the contrary, argue that failure to publish the posted notices of sale in both Yazoo and Madison Counties invalidated the sale as to all of the land involved, since the land was stiuated in two counties and constituted one single tract wholly described by subdivisions of the governmental survey. Appellees further contend that the lands attempted to be foreclosed could have been effectively conveyed by the trustee's deed, if properly advertised in both counties, although sold as a single tract in Yazoo County, under the power of sale contained in the trust deed. However, they say that failure to advertise in Madison County invalidated the entire sale.
This issue requires a construction of Section 2167 of the Code of 1930. We quote the pertinent parts: "All lands comprising a single tract, and wholly described by the subdivisions of the governmental surveys, sold under mortgages and deeds of trust hereafter executed, shall be sold in the manner provided by section one hundred and eleven of the constitution for the sale of lands in pursuance of a decree of court, or under execution. All lands sold at public outcry under deeds of trust hereafter executed, or the contracts hereafter made, shall be sold in the county in which the land is located, . . . provided that where the land is situated in two or more counties the parties may contract for a sale of the whole in any of the counties in which any part of the land lies. Sale of said land shall be advertised for three consecutive weeks preceding such sale in a newspaper published in the county, or, if not is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated, for said time . . . No sale of lands under 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. . . ."
Section 2772 of the Code of 1906 is practically the same as Section 2167 of the Code of 1930. The statute is in derogation of the common law, and therefore the requirements thereof must be strictly followed. Wilkinson v. Federal Land Bank of New Orleans, 168 Miss. 645, 659, 150 So. 218, 151 So. 761. We said in the case of Goodman v. Durant Bldg. Loan Association, 71 Miss. 310, 14 So. 146, "The trustee had the right to name the places of sale. Section 2484 of the Code of 1892 does not hinder the grantor from authorizing the donee of a power in a mortgage or deed of trust to designate the time, place and terms of sale. The statute comes in when the instrument is silent on the subject. Empowering one to name time, place, and terms is just as if the time, place, and terms were inserted in the instrument by the maker, for, done by authority conferred by him, it is as if done by himself." See also Lynchburg Shoe Company v. Castleman et al., 116 Miss. 188, 76 So. 878; Williams et al. v. Dreyfus et al., 79 Miss. 245, 30 So. 633; Davis v. O'Connell, 92 Miss. 348, 47 So. 672; Melsheimer v. McKnight, 92 Miss. 386, 46 So. 827. The trustee, therefore, was empowered by the authority of the trust deed to sell the whole tract of land involved in Yazoo County, but he was not empowered, since he could not have been empowered by such authority, to limit the advertisement thereof and the posting of notices to one county under the conditions here. The statute requires advertisement in a newspaper published, and notice posted, in both counties, and prohibits any contract to the contrary in the following language: "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."
We had this question before us heretofore in the case of Connecticut General Life Ins. Company v. Lombard, 185 So. 260, 261. During the pendency of a Suggestion of Error, the parties announced to the Court that they had settled their differences, whereupon, pursuant to custom, the Court withdrew the opinion and directed that it not be published in the State Reports, 189 So. 818. The Suggestion of Error did not attack the reasoning of the Court or the holding of the Court on the point involved but dealt wholly with other matters. The opinion was not withdrawn because the Court felt that it had committed error in reaching the conclusion therein expressed as to the similar issue involved here. So, although not a precedent, we have re-examined that case. We do not agree that it was incorrectly decided, as urged by amici curiae arguing on the side of the appellants. In the cited case, the lands were located partly in Coahoma County and partly in the first and second districts of Bolivar County. Notice of the foreclosure sale was published in the Clarksdale Daily Register, a newspaper published in Coahoma County, and a copy of the notice placed on the bulletin board at the courthouse in Clarksdale, Coahoma County. The sale was had in Coahoma County. No advertisement was made in any newspaper in Bolivar County, nor did the trustee post any notice of the foreclosure sale in that county. The opinion of the Court [185 So. 265] contained this observation: "It will be noted from the statute, section 2167, Code of 1930, that the property may be sold in the county in which the land is located or in the county of the residence of the grantor or one of the grantors in the deed of trust, provided that where the land is situated in two or more counties the parties may contract for the sale of the whole in any of the counties in which any part of the land lies. It is contended by the appellant that this power given by the statute to contract for the sale of property in one of the named places carries with it, by necessary implication, that the advertisement need not be made in any other county than that in which the sale was made. But, it will be noted that the statute proceeds: `Sale of said land shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated, for said time, and such notice and advertisement shall disclose the name of the mortgagor or mortgagors whose property is advertised for sale.'" We further held there that this provision clearly contemplated a legislative purpose to require that the land shall be advertised in the county where the land is situated in a newspaper published therein, if any, and by posting notice thereof at the courthouse of such county, pursuant to a wise purpose of the legislature to have persons living near the lands or in the county in which the lands are situated at least to have notice of the sale to the end that such persons could bid on the lands, since it would probably be not only to the interest of the debtor to have the land bring the best price, but also to the interest of the public to have the opportunity to buy lands which are offered under such circumstances. We also called attention to the prohibition of the statute against any contract for the change of the rule as to such advertisement and notice. We are also of the opinion that the advertisement procedure by the trustee in the case at bar was not in accordance with the legislative plan, and the sale here was void because of such violation of the mandatory requirements of the statute.
The recitals of the deed of trust reveal compliance with Section 111 of the Constitution of 1890 as to the sale of the land in parcels. The whole tract was described in governmental subdivisions, was embraced in the terms of the trust deed, advertised for sale and included in the conveyance of the trustee's deed. Furthermore, the purchase price paid by appellant Cook in the amount of $4,000 was for the entire tract. There was no advertisement thereof in a newspaper published in Madison County and by posting at the courthouse door of Madison County. The entire sale was void. The decree of the chancery court was correct in overruling the demurrer, and therefore the decree will be, and is, affirmed, and the cause remanded for further proceedings consistent herewith.
Affirmed and remanded.
Sydney Smith, C.J., did not participate in this decision.