Opinion
No. 29507.
March 7, 1932.
1. MORTGAGES. Resale under deed of trust at three p.m. held invalid notwithstanding sale was advertised for about noon, and resale if successful bidder defaulted was announced before bidders dispersed ( Code 1930, section 3040).
Sale was invalid because, even if the sale advertised for about noon could have been started at any time before four o'clock in the afternoon under Code 1930, section 3040, providing, in substance, that sales under execution shall not start earlier than eleven a.m., nor continue later than four p.m., where the purchaser fails to make good his bid, the property cannot be offered for resale without a new advertisement unless the resale is made before the bidders at the first sale have dispersed.
2. MORTGAGES.
Announcement of resale, if successful bidder defaulted, would not authorize resale even if unconditional notice would authorize it (Code 1930, section 3040).
3. HUSBAND AND WIFE.
That husband, co-owner with wife, acquiesced in postponing trustee's sale rendering resale invalid, did not preclude nonconsenting wife from redeeming land.
APPEAL from chancery court of Warren county. HON. J.L. WILLIAMS, Chancellor.
Canizaro Canizaro and G.L. Larr, Jr., all of Vicksburg, for appellants.
The essentials of a notice of sale under a trust deed are statements of the time, place and terms of sale and such a description of the property to be sold as, if read by persons familiar with the neighborhood, will advise them what is to be sold and the terms upon which it can be bought. The purpose of notice is not only to notify the grantors in the deed of trust, but the public that the property may bring a fair price.
Yellowly v. Beardsley, 76 Miss. 613.
Where the successful bidder fails or is unable to comply with his bid, the property may be put up for sale a second time. This may be done immediately, if the purchaser's refusal or inability is clearly manifested, and the necessity of advertising a second time or giving new notices may be avoided if the resale is made on the spot and before the bidders disperse, although otherwise there must be a new publication and evidence of the trustee's or mortgagee's continuing authority to make the sale.
41 C.J., p. 986, sec. 1439.
If the purchaser at an auction sale under a power contained in a mortgage is unable or refuses to comply with his bid before the bidders disperse, the property may be sold without a fresh advertisement. It has, however, been held that where the trustee in a deed of trust with a power of sale gives notice for a certain number of days, advertises the property, and puts it up for sale at public auction, and the property is struck off to a bidder, the trustee cannot upon the same day resell the property because the purchaser refuses to complete his contract, unless there has been a new publication of notice. Certainly, a resale upon the refusal of the first bidder to comply with his bid is not valid, if made after the bidders dispersed without a new notice of sale.
19 R.C.L., p. 621, sec. 438; Barnard v. Duncan, 38 Mo. 170, 90 Am. Dec. 416; Love v. Harris, 72 S.E. 150, 152; McPherson v. Davis, 95 Miss. 215, 48 So. 625; Valentine v. Dunagin Whitaker Co., 102 Miss. 563.
A conditional notice of resale was not sufficient.
Yellowly v. Beardsley, 76 Miss. 613; 19 R.C.L., p. 599, sec. 414.
If it can be said that Simpson Gray is estopped from complaining of the conditional postponement of the sale for the reason that it was by his consent and for his benefit, most assuredly the reason for the estoppel on the part of Simpson Gray is not applicable so as to estop Hattie Gray, as the postponement was not by her consent nor for her benefit.
The mere fact that the appellants are tenants in common of the property in this suit does not bind Hattie Gray or estop her in any way because of the act, conduct or estoppel of her cotenant, Simpson Gray.
7 R.C.L., p. 874, sec. 68.
If land owned by cotenants is mortgaged and the mortgage is foreclosed, a demand for possession by the purchaser under the foreclosure sale, a refusal of which will destroy the right of redemption, must be made on each of the cotenants. A demand upon one is not a demand upon the other in this connection, imposing any duty of surrendering possession, although such cotenants are husband and wife.
7 R.C.L., p. 874, sec. 68; Harden v. Collins, 138 Ala. 399, 35 So. 356, 100 A.S.R. 42.
An estoppel operating against one tenant in common in relation to the common property may be defeated by an assertion of the rights of his non-estopped cotenants.
38 Cyc., pp. 106-107; 7 R.C.L., p. 874, sec. 68; Harden v. Collins, 138 Ala. 399, 35 So. 356, 100 A.S.R. 42; 41 C.J. 1007.
A husband has not, by virtue of the marital relation, any authority to act as the agent of his wife or to make any agreement on her behalf binding her rights without her consent.
13 R.C.L., p. 1168, sec. 194; 13 R.C.L. 1171, sec. 198; Crawford Wife v. Redus, 54 Miss. 700; Partee v. Stewart, 50 Miss. 717; Threadwell v. Herndon, 41 Miss. 38.
The husband has no power to ratify, without the consent of the wife, a void sale of her land.
Thomas B. Kempe v. Pintard, 32 Miss. 324.
Brunini Hirsch, of Vicksburg, for appellees.
If the maker of the deed of trust bids at the sale an amount in excess of the highest bid made by the bidders present and continues even at a resale to make such bid, and being unable to make his bid good, such a mortgagor could continue to defeat sales by a trustee by continuing to make his unreliable bid.
Davis v. Hess, 103 Mo. 31, 15 S.W. 324.
The trustee under the deed of trust had a right to sell the property at any time between 11:00 A.M. and 4:00 P.M.
Section 3040, Code 1930.
Since the trustee did not exhaust his powers at the first sale at 12:00 o'clock, noon, no necessity for a readvertising was required since the trustee sold the property within the hours required by law, on the same day named in the notice of publication, and within the hours prescribed.
Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property of contract, or of remedy.
2 Pomeroy Equity Jurisprudence, sec. 804, page 1421; 21 C.J. 1113.
It is true that in cases where the husband is precluded from purchasing by some matter in pais, which makes it fraudulent in him to do so, the law will impute knowledge of the facts to the wife, and estop her also, so as to prevent an evasion of a moral duty on his part by the easy device of a purchase by the wife. This is upon the ground that the law will presume the wife to have knowledge of the facts through the husband, since, owing to the marital relation, it is impossible to make proof of such knowledge.
Cameron v. Lewis, 56 Miss. 601; Robinson v. Lewis, 68 Miss. 69; Hamblet v. Harrison, 80 Miss. 118; Beaman v. Beaman, 90 Miss. 762; Wade v. Barlow, 99 Miss. 33.
The appellants exhibited an original bill in the court below against the appellees, praying that a trustee's deed to certain land to the appellee Sullivan be canceled and held for naught on the payment by the appellants, to Sullivan, of the money paid by her to the trustee for the land. The case was tried on bill, answer, and proof, and the bill was dismissed.
There was an agreed statement of facts from which it appears that the appellants, Simpson and Hattie Gray, who are husband and wife, were the owners of the land here in controversy, and executed a deed of trust thereon to secure an indebtedness due by them to the beneficiary therein. Default was made in the payment of the debt, and the trustee advertised the land for sale under the deed of trust, "at or about twelve o'clock, noon, on Wednesday, the 30th day of April, 1930." The trustee offered the land for sale at the appointed time and place, and the appellant Simpson Gray bid therefor the sum of six hundred twenty dollars, twenty dollars more than the next highest bid, and was declared the purchaser thereof. He was unable then to pay the amount of his bid, but did pay fifty dollars thereon, whereupon the trustee announced "that he would resell the property at three o'clock P.M. the same day if the purchaser did not make good the bid, which announcement was made before any person then present had left the place of bidding." Simpson Gray was unable to pay the balance due on his bid, and the trustee, at three o'clock P.M. of the same day, again offered the land for sale at the appointed place, and the appellee Sullivan became the purchaser thereof for the sum of four hundred forty dollars.
Several of the prospective bidders who were present at the first sale failed to appear at the second, including the one who had bid six hundred dollars for the land at the first sale. After paying the debt secured by the deed of trust and the foreclosure expenses, there remained in the hands of the trustee from the money paid to him for the land by the appellee Sullivan, the sum of eight dollars, which he paid to the appellant Simpson Gray. The appellant Hattie Gray is not shown to have been in any way a party to the conduct of Simpson Gray at the trustee's sale, nor to the receipt by him of the eight dollars from the trustee.
The record does not disclose whether the deed of trust specified "the place and terms of sale and mode of advertising." Counsel seem to assume that the deed of trust does not so provide, and that, consequently, under section 2169, Code 1930, the trustee was required to make the sale "upon such notice, and at such time and place as is required for sheriff's sale of like property."
The argument of counsel for the appellees is, in substance, that the sale to the appellee Sullivan is valid for the reason that it was made within the hours authorized for sales by section 3040, Code 1930, which provides that "sales under execution shall not commence sooner than eleven o'clock in the forenoon, nor continue later than four o'clock in the afternoon." Leaving out of view the fact that the sale was advertised for "at or about twelve o'clock Noon," and assuming that under the advertisement the trustee had the power to commence the sale at any time before four o'clock in the afternoon, the decree of the court below must nevertheless be reversed under the rule announced in McPherson v. Davis, 95 Miss. 215, 48 So. 625. In that case, a trustee offered the property secured by the deed of trust for sale pursuant to an advertisement therefor, and declared McPherson, the highest bidder, to be the purchaser. McPherson failed to make good his bid, and later, on the same day, but after all bidders who appeared at the first sale had dispersed, the trustee again offered the property for sale, and it was purchased by one Lowenberg. The court held that when the purchaser at a trustee's sale fails to make good his bid, the property cannot be offered for resale without a new advertisement therefor, unless the resale is made immediately and before the bidders at the first sale have dispersed. This seems to be in accord with the current of authority. 41 C.J. 986; 23 C.J. 653; 19 R.C.L. 438. That the resale was made within the hours specified for the sale in the advertisement therefor is of no consequence. Judge v. Booge, 47 Mo. 544; Barnard v. Duncan, 38 Mo. 170, 90 Am. Dec. 416.
But it is said that this rule does not apply here, for the reason that the trustee announced that he would resell the property at a later hour. Assuming, but merely for the purpose of the argument, that a resale made at a later hour, pursuant to an unconditional notice that the resale would be made, would be valid, no such notice was here given; for what the trustee announced, was that he would resell the property provided the purchaser at the first sale failed to make good his bid before the time fixed by him therefor.
Again, it is said that the postponement of the resale was for the benefit of, and was acquiesced in by, the appellant Simpson Gray, and therefore neither he nor Mrs. Gray, his wife and cotenant, can complain thereat. Assuming that Simpson Gray would be estopped from complaining, the estoppel cannot be extended to Mrs. Gray. Simpson Gray is not shown to have been authorized to act for her in the matter, and she is not shown to have been, in any way, a party to his conduct. The sale being voidable, Mrs. Gray has the right to have it set aside and to redeem the land from the lien of the deed of trust, which right extends, not to the redemption of an undivided interest in the land, but to the whole of it.
The prayer of the bill should have been granted.
Reversed and remanded.