In this case, the appellee failed. Jaubert Bros. v. Walker, 203 Miss. 242, 33 So.2d 827; Yates v. Meade, 68 Miss. 787, 10 So. 75. Jas. D. Thames, Vicksburg, for appellee.

The court has repeatedly held that a circuit judge cannot grant a peremptory instruction under such circumstances, but at this moment we have found no case squarely dealing with the point. However, the court has held in Jaubert Brothers v. Walker, 33 So.2d 827, that a motion to strike answers on ground that they presented no defense sufficient in law, admitted every fact asserted in their answers. Likewise, in the case of Greenwood Grocery Company v. Bennett (a circuit court case) 58 So. 482, the court said in the third syllabus: "Courts of law are organized for the purpose of trying causes upon their merits and only in exceptional cases should the trial court refuse to permit amendments of pleadings or proceedings."

While New York has clearly determined that foreclosure may in some circumstances be permissible, there appears to be no authoritative statement as to whether or not it may sometimes be dispensed with, as is the case in other jurisdictions. See Jaubert Bros., Inc. v. Walker, 203 Miss. 242, 33 So.2d 827 (1948) (property worth less than debt); Note, Conveyance from Mortgagor to Mortgagee as Foreclosure of Junior Liens, 48 Colum.L.Rev. 955 (1948); cf. R.P.A.P.L. §§ 1401, 1411. This question was not discussed by the parties, and is premature in the absence of a final determination of the value of the property; therefore, it need not be determined at the present time.

The rule of law is that a foreclosure sale, held for property which falls into default, will normally cut off the rights of one holding a secondary deed of trust where amounts paid are sufficient to absolve only a primary deed of trust. Jaubert Bros., Inc. v. Walker, 203 Miss. 242, 33 So.2d 827 (1948). Further, a party holding a secondary deed of trust has no right to notice of foreclosure, Miss. Code Ann. § 89-1-55 (1972) [Contra: Uniform Land Transaction Act (1975), see also, G. Abbott, Priority Problems, 50 Miss. L.J. 665, 680 (1979)], or statutory right of redemption in Mississippi, but may only assert an interest prior to foreclosure by paying amounts due and subsequently engaging in foreclosure for nonpayment of his secondary deed of trust.

I. The Chancery Court erred in sustaining the motion of the complainant to strike the answer and the amendment thereto of the defendant. Boise Mtr. Co. v. St. Paul Mercury, 112 P.2d 1011; Church v. Consolidated Indem. Ins. Co. (N.J.), 174 A. 488; Clinton Cotton Oil Co. v. Hartford A. I. (S.C.), 186 S.E. 399; Commercial Casualty Co. v. Tri-State Transit Co. of La., 190 Miss. 560, 1 So.2d 221; Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279; Dilworth v. Federal Reserve Bank, 170 Miss. 373, 150 So. 821; 154 So. 535; Drewek v. Milwaukee Automobile Ins. Co. (Wis.), 240 N.W. 881; Green v. Travelers Ins. Co., 36 N.E.2d 620; Hartford Acc. Indem. Co. v. Peach, 68 S.E.2d 520; Jaubert Bros. v. Walker, 203 Miss. 242, 33 So.2d 827; Kennedy v. Porter, 176 Miss. 742, 170 So. 286; Lunt v. Aetna Life Ins. Co. (Mass.), 159 N.E. 461; Maryland Casualty Co. v. Stockstill, 111 F.2d 450; M.L. Virden Lumber Co. v. Sherwood, 167 Miss. 297, 139 So. 813; Myrick v. Mansell, 184 Miss. 701, 185 So. 581; National Mutual Cas. Co. v. Clark, 193 Miss. 27, 7 So.2d 200; Parkhurst v. McGraw, 24 Miss. 134; Pomes v. McComb City, 121 Miss. 425, 83 So. 636; Rodenkirk v. State Farm Mutual (Ill.), 60 N.E.2d 269; United States F. G. Co. v. W.G. Cook, 181 Miss. 619, 179 So. 551; United States F. G. Co. v. Wilson, 184 Miss. 823, 185 So. 802; United States F. G. Co. v. Yazoo Cooperage Co., 157 Miss. 27, 127 So. 529; Yazoo M.V.R. Co. v. Fields, 188 Miss. 725, 195 So. 489; Annos. 85 A.L.R. 65(d), 65 et seq., 126 A.L.R. 1105, 160 A.L.R. 527, 41 A.L.R. 2d 964; 54 Am. Jur. 182, 185; 30 C.J.S. 227; 45 C.J.S. 994; Appleman on Insurance Law Practice, Secs. 4682, 4686; Griffith's Mississippi Chancery (2d ed.), Sec. 372 p. 355. P.L. Douglas, Starkvi

III. The appellant failed to prove by any clear and convincing evidence that appellees perpetrated any fraud upon it in connection with the execution of the truck leases. Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 42 So.2d 431, 434; Jones v. Jones, 227 Miss. 1, 85 So.2d 580, 581; Jaubert Bros., Inc. v. Walker, 203 Miss. 242, 33 So.2d 827, 830; Metropolitan Life Ins. Co. v. Hall, 152 Miss. 413, 118 So. 826; Thames v. Thames, 222 Miss. 617, 76 So.2d 707, 710; Thomas, v. B. Rosenberg Sons, Inc., 153 Miss. 314, 120 So. 732, 733; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301, 303; Tyler v. Herring, 67 Miss. 169, 6 So. 840, 841; Weems, v. State, 210 Miss. 824, 50 So.2d 398-99; Willoughby v. Pope, 101 Miss. 808, 58 So. 705.

II. The bill of complaint filed by appellants in the former proceedings to enjoin the foreclosure of the deed of trust, because there had been a merger of the mortgage lien in the fee, was not vulnerable to a general demurrer which admitted the averments of the bill of complaint; and the Court should have have considered testimony to establish the intent of the parties. Santa Cruz v. State, 223 Miss. 617, 78 So.2d 900; Baily v. Eakes, 168 Ark. 872, 271 S.W. 978; Campbell v. Carter, 14 Ill. 286; Loomer v. Wheelwright, 3 Sandf. Ch. (N.Y.) 135; Beacham v. Gurney, 91 Iowa 621, 60 N.W. 187; Erett v. Wheeler, 109 Minn. 157, 123 N.W. 414; Yates v. Head, 63 Miss. 787, 10 So. 75; Jaubert Bros. v. Walker, 203 Miss. 242, 33 So.2d 827; 37 Am. Jur., Mortgages, Sec. 1193. O.L. McLeod, Pascagoula, for appellees.

I. By the motion to strike the petition for leave to file a bill of review, and the bill of review, the appellee admitted material facts asserted in said petition and bill of review and supported by the sworn statements attached thereto. Eden Drainage Dist. of Yazoo County v. Swaim, 213 Miss. 368, 54 So.2d 547, 55 So.2d 439; Ford v. Commercial Securities Co., Inc., 220 Miss. 157, 70 So.2d 525, 72 So.2d 201; Jaubert Bros. v. Walker, 212 Miss. 386, 33 So.2d 827; Sec. 1300, Code 1942; 41 Am. Jur., Pleading, Sec. 353; 30 C.J.S., Equity, Sec. 196; 71 C.J.S., Pleading, Sec. 248; Griffith's Miss. Chancery Practice, Secs. 640, 649. II. The appellee was under a duty to deal justly with the repossessed automobiles in order that the equitable rights of appellant and the conditional vendee would be fully protected.

Equitable foreclosures are recognized in this state. Jaubert Bros. v. Walker, 203 Miss. 242, 33 So.2d 827. The court there stated the rule in these words: "The casual reaction of the legal mind is that the only manner by which a junior lienholder may be put out of the way by a senior encumbrance is to formally foreclose by a public sale either by a trustee or by a commissioner, in which case the trustee's or the commissioner's deed will relate back to the date of the senior encumbrance, so far as junior encumbrancers are concerned.