Opinion
No. 35801.
March 12, 1945. Suggestion of Error Overruled April 23, 1945.
1. PLEADING.
Where trustee's deed which was made an exhibit to complaint seeking to cancel such deed referred to the thereinafter described land, recited that trustee had advertised such land for sale and then proceeded to describe the land and convey it, such recitals in exhibit controlled on demurrer as to what land was advertised for sale, particularly where complaint did not allege what land was so advertised.
2. APPEAL AND ERROR.
In determining whether demurrer to complaint was properly sustained, Supreme Court could not consider matter filed by appellees as an addenda to their brief, but not appearing in the record on appeal as filed in Supreme Court.
3. PLEADING.
Where recitals in trustee's deed which was made an exhibit to complaint seeking to cancel foreclosure sale, trustee's deed and subsequent conveyance by purchaser at foreclosure sale disclosed that land subject to deed of trust was incorrectly described in notice of foreclosure sale, complaint, though it did not allege what land was described in notice of sale, stated a cause of action good as against demurrer.
4. MORTGAGES.
Where land subject to deed of trust is correctly described in notice of foreclosure sale but incorrectly described in trustee's deed made pursuant thereto, purchaser at foreclosure sale will be entitled to receive at any time a corrected deed from trustee describing land conveyed by deed of trust, offered for sale under notice, and struck off to purchaser.
5. MORTGAGES.
Trustee's deed made pursuant to foreclosure sale is not subject to cancellation at instance of mortgagors merely because it purports to convey land not conveyed by deed of trust in which land mortgagors claimed no interest, if notice of foreclosure sale correctly described land conveyed by deed of trust.
6. MORTGAGES.
The provision "according to law" inserted by pen or typewriter in portion of printed form used in executing deed of trust providing for sale of land in event of default "after giving notice of time, place and terms of sale by advertisement posted at least ____ days before day of sale in three public places" in county, superseded quoted printed provision in its entirety so that only such advertisement of foreclosure sale as was required by law in force when deed of trust was executed and foreclosed was necessary (Code 1930, sec. 2167).
7. CONTRACTS.
While written or typewritten parts of a contract prevail over the printed parts, whenever it is possible by any reasonable interpretation when there is no conflict or inconsistency between the two, they should be reconciled so as to give effect to both.
ON SUGGESTION OF ERROR. (In Banc. April 23, 1945.) [ 21 So.2d 916. No. 35801.]APPEAL AND ERROR.
Where Supreme Court determined that exhibits to complaint controlled on demurrer and reversed and remanded cause, Supreme Court's opinion did not preclude amendment to bill so as to exhibit true and correct copies of instruments involved or any other proper amendment by either side in the further trial of cause in lower court, but application to amend, if permission was needed, was required to be made to chancellor.
APPEAL from chancery court of De Soto county, HON. R.E. JACKSON, Special Chancellor.
L.E. Farley and Kenneth Rayner, both of Memphis, for appellants.
The statute specifies a minimum requirement in the foreclosure of mortgages or deeds of trust under a power of sale.
Code of 1930, Sec. 2167, Code of 1942, Sec. 888.
The method of foreclosure required by the statute is not exclusive; the parties may contract for additional requirements, provided same are not contrary to the statute.
Wilczinski v. Watson, 110 Miss. 86, 69 So. 1009.
Powers of sale in a mortgage or deed of trust are contractual and the mortgagee or trustee is held to compliance with the letter of the contract, where same contains valid requirements not in conflict with the statute.
Wilkinson v. Federal Land Bank of New Orleans, 168 Miss. 645, 150 So. 218; Wilczinski v. Watson, supra.
Where there is conflict between written (or typewritten) and printed parts of a contract, the written (or typewritten) parts prevail over the printed part, but this rule applies only where there is irreconcilable conflict between the written and printed parts. In the absence of such conflict the principle prevails that the contract should be so construed as to give effect to every word and expression contained therein, it being presumed that the instrument contains no clauses not intended by the parties.
Hardie-Tynes Foundry Machine Co. v. Glen Allen Oil Mill, 84 Miss. 259, 36 So. 262; Kratzenstein v. Western Assur. Co., 116 N.Y. 54, 22 N.E. 221, 5 L.R.A. 799; Ohio Mich. Coal Co. v. Clarkson Coal Dock Co., 266 F. 189; Allen et al. v. Turner et al. (C.C.A. 5), 258 F. 180; 17 C.J. 730, Sec. 310.
Advertisement of foreclosure sale must correctly describe the land to be sold, and if any tract thereof is misdescribed, entire proceeding and the trustee's deed thereunder are void.
Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3.
Gerald Chatham, of Hernando, for appellee, S.B. Dean.
This case involves a sale of lands in pais made by a trustee under an instrument conferring a power of sale upon him under certain prescribed terms and conditions. The power of sale conferred upon said trustee was exercised and trustee's deeds were executed to the purchasers pursuant to the sales made by each trustee. The question then presented is, were the sales made within the prescribed terms and conditions set forth in the trust deeds conferring the power of sale? Section 2167 of the Code of 1930 sets forth the statutory scheme for the foreclosure of trust deeds with power of sale and this particular statute at the time of the foreclosure of the trust deeds in question was in force and effect at said time and determines the validity of sales made under trust deeds with power of sale, including the case at bar. In the two trust deeds involved in this litigation the phrase, "according to law," which it is conceded was interlined in the printed forms, referred without question to Section 2167 of the Code of 1930, which was the law at that time in force and effect prescribing the method of foreclosure of trust deeds with power of sale.
It is well known that further and additional provisions agreed upon by the parties for a longer period of advertisement or additional precautionary methods can be contracted for in addition to those provided for in the above section.
Wilczinski v. Watson, 110 Miss. 86, 69 So. 1009.
The further proposition then arises in the case at bar as to whether or not any additional provisions were contracted by the parties in addition to the minimum requirements provided for by the statute. We might observe in the beginning that had not the words "according to law" been inserted in the trust deeds in question an attempted foreclosure by the trustees exclusively under the methods and provisions set forth in said trust deeds would not have been valid and would not have effectually conveyed the title to the lands described therein. This is apparent for the reason that the trust deeds without the words "according to law" would not have met the minimum requirements of the statute, but would have merely provided: "And after giving notice of the time, place, and terms of sale by advertisement at least ____ days before the day of sale in three public places in DeSoto County." Since it is evident that the scrivener and the parties recognized that this provision for the advertisement of sale was not sufficient to meet the requirements of law, they ignored it and inserted the words, "according to law," and left blank the space provided for the number of days of advertisement in the so-called "three public places in DeSoto County." The intention of the parties, therefore, is as clearly manifested by the interlineation as though they had proceeded further and stricken out or interlined those words providing for an advertisement posted at least ____ days before the day of sale in three public places.' It is as simple as this, how many days is ____ days? How many days would the trustees have posted the notice in three public places in DeSoto County if the instrument itself provided that they should be posted in said three public places for ____ days? To ask it is to answer it. In leaving the space blank provided for the number of days that the advertisement should be posted it gives the exact meaning that a blank space always conveys and that is absolutely nothing.
Lore v. Smith, 161 Miss. 579, 133 So. 214; 13 C.J. 308.
It is universally held that where there is a conflict between written and printed parts of a contract, the written parts prevail over the printed parts, and it may be that this rule applies only where there is an irreconcilable conflict between the written and printed parts as stated in the brief for appellants, and the rule is further stated that in the absence of such conflict the principle prevails that the contract should be so construed as to give effect to every word and expression contained therein. The conflict between the written matter "according to law" in the trust deeds in the case at bar and the printed matter is glaring. It must be presumed that the parties to the trust deeds knew what "according to law" meant, and since it was written into the contract by the parties and became part of the contract it must be interpreted and construed by this Court in the light of its literal meaning and we have only to refer to the statute to find what that meaning is. The printed matter pertaining to the method of advertisement was not an additional requirement within the rule used in the Wilczinski case, supra, because it was not an intelligible sequence to the written interlineation "according to law," but was merely meaningless surplusage from which the trustees could glean no light, guidance, or direction, and the best evidence of this fact is a mere reading of that part of the printed matter pertaining to the method of advertisement. The parties did not write after the words "according to law" that "in addition thereto" or with any other phraseology indicating that it was the intention of the parties to impose any further or additional provisions for a different period or method of advertisement than that prescribed by statute.
Lore v. Smith, supra; American Terricotta Co. v. Surety Co., 199 Ill. 545; 17 C.J.S. 729.
Another question that has been injected into this case for the first time on appeal is that the trustee's deed did not correctly describe some of the lands advertised for sale and that this contributed to the scarcity of bidders. It is evident from a reading of the pleadings and the exhibits that the lands were correctly advertised in the notice of sale and were repeatedly referred to throughout the trustee's deed and proof as being the lands described in the notice of sale and the trust deeds as being the lands which the appellants are suing for and the lands that the appellees, S.B. Dean and J.W. Pounders, Sr., went into possession of immediately following the foreclosure. We do not think that this is any defect that would affect the validity of the sale unless it would affirmatively appear from the pleadings themselves that there was a misdescription of the lands in the advertisement and certainly this is not even charged.
The only objection that the appellants seem to have is that the lands were not correctly described in the trustee's deed, and who are they to be heard to object if Mr. Dean did not get the lands he purchased at the sale. The appellee, Dean, if he so desires, can by timely application seek to have the trustee's deed reformed so as to correctly describe the lands purchased by him if there is any error in the description, but this in no wise affects the validity of the sale and in no wise concerns the appellants except that in their desperation they are trying to deprive the appellees of what is justly and rightly theirs.
R.F.B. Logan, of Hernando, for appellee, J.W. Pounders, Sr.
A writing is incomplete as an agreement where blanks as to essential matters are left in it, unless they can be supplied from other parts of the writing itself or unless and until such blanks are lawfully filled.
Lore v. Smith, 161 Miss. 579, 133 So. 214; Williams v. Crutcher, 5 How. (13 Miss.) 71, 35 Am. Dec. 422; 13 C.J. 308.
If this Court should now overrule Lore v. Smith, supra, it will be effective only from the date of such overruling. The overruling of a decision of a court which has rendered a course of action necessary does not operate to affect the legality of the situation under the former decisions, especially as to contracts and legislation made in pursuance of law as declared by the highest court of the state or nation.
Brock v. Adler, 180 Miss. 118, 177 So. 523; Mississippi State Tax Commission v. Brown, 188 Miss. 483, 195 So. 465, 127 A.L.R. 919; Chenault v. State, 154 Miss. 21, 122 So. 98; Village of Zama v. Ayres Separate School District, 120 Miss. 444, 82 So. 313; New York Life Ins. Co. v. Boling, 177 Miss. 172, 169 So. 882, 111 A.L.R. 967; Childress v. State, 188 Miss. 573, 195 So. 583.
It is contended that the notice of the sale of the lands by Tipton, trustee, did not correctly describe the lands to be sold, and, therefore, the sale made by Tipton, trustee, was wholly void. The Mississippi cases cited by counsel for appellants are based on a misdescription either in the trust deed being foreclosed, or in the trustee's notice of sale, and of course those cases cannot apply in the case at bar for the reason that the Pruitt lands were correctly described in the trust deed and also correctly described in the trustee's notice of sale, and no one could have been misled as to what land was actually offered for sale and knocked off to S.B. Dean.
The presumption that the trustee's deed was pursuant to and following the notice of sale must fail.
Jones et al. v. Frank et al., 123 Miss. 280, 85 So. 310.
If there is a conflict between the exhibit and the allegations of the bill, the former controls.
North American Life Ins. Co. v. Smith et al., 178 Miss. 238, 172 So. 135.
Exhibits filed with the bill as part of it shall be considered on demurrer as if copied in the bill.
White v. Thomas, 52 Miss. 49; Code of 1930, Sec. 374.
Argued orally by Kenneth Rayner, for appellants, and by R.F.B. Logan, for appellees.
The appellants, John Pruitt and others, seek to cancel as a cloud upon their title to certain lands in DeSoto County, two foreclosure sales thereof made on January 5, 1934, and the trustees' deeds made pursuant thereto in favor of the appellee, S.B. Dean, as purchaser, together with a subsequent conveyance from the said Dean to the appellee J.W. Pounders, Sr., for a part of the lands involved.
Upon the hearing the defendants demurred to the bill of complaint, as amended, the demurrers were sustained, and the suit was dismissed. While the order dismissing the bill was a final decree, the same purported to allow this appeal to settle the controlling principles of the case, and it does not appear as to whether or not the complainants were afforded an opportunity to plead further, and declined to do so, upon the sustaining of the demurrers, and before the suit was finally dismissed.
The bill of complaint alleged that John Pruitt, Sr., died intestate seized and possessed of the N.E. I/4 of Section 30, except the W. 1/2 of the W. 1/2 thereof, and also the W. 1/2 of the N.W. I/4 of Section 29, Township 2, Range 8 W., in DeSoto County; that thereafter on March 8, 1929, three of the then sole surviving heirs at law of the said John Pruitt, Sr., deceased, executed and delivered a deed of trust conveying the said lands to J.R. Tipton, as trustee for Dean Company, to secure an indebtedness of approximately $3,400; and that thereafter on June 1, 1929, the remaining heir at law of the said John Pruitt, Sr., deceased, executed and delivered to Grady Johnson, as trustee for Dean Company, a deed of trust on the W. 1/2 of the W. 1/2 of the N.E. I/4 of said Section 30, and all of his claim and interest in the W. 1/2 of the N.W. I/4 of said Section 29 to secure an indebtedness owing by him to Dean Company amounting to $1,129.47, but fails to allege whether or not the said remaining heir at law then owned an interest in the N.E. I/4 of said Section 30 other than W. 1/2 of the W. 1/2 thereof, and the case proceeded in the trial court as if the remainder of the said N.E. I/4 belonged solely to the three heirs who had executed the deed of trust of March 8, 1929, in favor of J.R. Tipton, trustee.
The validity of the title claimed to have been acquired by the appellee S.B. Dean at the foreclosure sale is challenged on two grounds, (1) that the said lands were not advertised for sale pursuant to the terms and provisions of the deeds of trust, in that the deed of trust in favor of J.R. Tipton, trustee, provided for the sale of the land to be made by him "after giving notice of the time, place and terms of the sale, by advertisement posted at least ____ days, according to law, before the day of sale in three public places in DeSoto County," and that the deed of trust in favor of Grady Johnson, trustee, provided for the sale of the land to be made by such trustee "after giving notice of the time, place and terms of sale, by advertisement posted at least ____ days before the day of sale in three public places, according to law, in DeSoto County," whereas it is alleged that each of said trustees advertised the land described in the deeds of trust, respectively, for sale after having published a notice in the "Times Promoter," a local newspaper, for three consecutive weeks next preceding the date of sale and after having posted a copy of such notice of the sale at the courthouse at Hernando, in DeSoto County, and without having posted a notice in two additional public places other than the courthouse in said county, for said length of time; and (2) because the deed executed by J.R. Tipton, trustee, discloses that he conveyed to the purchaser at such sale, along with the lands situated in the N.E. I/4 of Section 30, the W. 1/2 of the N.E. I/4 of Section 29, instead of the W. 1/2 of the N.W. I/4 thereof, the latter eighty acres being that owned by the grantors named in the deed of trust, and having been correctly described therein.
We shall discuss these two grounds of objection to the sale in their reverse order, and it should be here stated that the bill of complaint does not allege that the W. 1/2 of the N.W. I/4, Section 29, was not described in this trustee's notice of sale. It is urged, however, in the brief of counsel for the appellants that it should be presumed that in executing the trustee's deed the draftsman thereof followed his notice of sale as to the description when he undertook to convey to the purchaser the W. 1/2 of the N.E. I/4 of Section 29, instead of the W. 1/2 of the N.W. I/4 thereof. But we are of the opinion that there is no better reason for indulging this presumption than there would be for presuming that the trustee in preparing his notice of sale had embodied therein the description of the lands found in the deed of trust, which he evidently had before him, when preparing such notice.
However, the real difficulty confronting the Court in the above matter is that the trustee's deed executed by the said Tipton, trustee, and made an exhibit to the bill of complaint, refers to the "hereinafter described land" and recites that he had advertised "said land" for sale, and then proceeds to thereafter describe the land and convey the same by describing it in his deed as the W. 1/2 of the N.E. I/4, Section 29, instead of the W. 1/2 of the N.W. I/4 thereof. Since the bill of complaint seeks to cancel the said trustee's deed, and makes the same an exhibit thereto, the recitals of the exhibit will control as against the allegations of the bill of complaint, and particularly as against the failure of the bill to allege as to whether or not he advertised the W. 1/2 of the N.E. I/4 of Section 29, instead of the W. 1/2 of the N.W. I/4 thereof. In other words, the exhibit recites what the trustee did, and its recitals control on demurrer as to what land was advertised for sale.
To meet the situation thus presented in view of the holding of this Court in the cases of Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3, and Hancock et al. v. Pyle et al., 191 Miss. 546, 3 So.2d 851, wherein it was said to be in the interest of the mortgagor and essential to the validity of a foreclosure sale that the land be correctly described in the notice of sale in order that prospective bidders may know what land is to be offered, the appellees state in their brief that when the complainants made the trustee's deed, executed by Tipton, trustee, an exhibit to the bill of complaint, they failed to copy from the deed records of the county the said instrument in its entirety in that they failed to copy as a part of such exhibit the printer's proof of the publication of said notice; and the appellees say that they have therefore copied the said trustee's deed from the record in its entirety and file the same as an addenda to their brief, showing that the land was, in fact, correctly described in the notice of sale as being the W. 1/2 of the N.W. I/4, Section 29, instead of the W. 1/2 of the N.E. I/4 thereof. However, since this proof of publication of notice does not appear in the record, as filed in this court, we are not at liberty to look to this addenda to the appellees' brief as a part of the record on appeal. And when the addenda is disregarded it will be readily seen that the bill of complaint states a ground for relief under the decisions above referred to, and that, therefore, the bill of complaint was good against a demurrer in so far as the foreclosure by the said Tipton, trustee, is concerned, and that since Pounders purchased from Dean a part of the land involved in said foreclosure, both of them should have been required to answer the bill and show the true facts as to whether or not the notice of sale had erroneously described the land which was being offered for sale.
If the fact is that the land owned by the mortgagors as described in the deed of trust was correctly described in the notice of sale, then the purchaser at such sale would have been entitled to receive at any time a corrected deed from the trustee, describing the land conveyed by the deed of trust, offered for sale under the notice, and struck off to the purchaser; and, moreover, the complainants could not have urged any valid objection to such corrected deed being executed. Nor would they be entitled in such event to have the trustee's deed cancelled as actually executed solely on the ground that the same attempted to convey the W. 1/2 of the N.E. I/4 of Section 29, not described in their deed of trust, since they claim no interest therein. Moreover, they allege in their bill that the purchaser at the sale made by Tipton, trustee, on January 5, 1934, went into possession of the lands described in the deed of trust and that he and his vendee have been in possession thereof since the date of such sale.
The error in description hereinbefore referred to did not appear in the foreclosure sale made by Grady Johnson, trustee, and therefore the sale under such foreclosure is valid so far as that objection is concerned.
It now becomes necessary to determine whether or not both of the sales were rendered invalid because of the alleged failure of the trustees to comply with the terms of the deeds of trust in regard to where the notices of sale should be posted.
While the question is not free from difficulty, we are of the opinion that since it is conceded that printed forms were used for the execution of both deeds of trust, which provide, in printed language, for the sale of the land to be made in the event of default "after giving notice of the time, place, and terms of sale, by advertisement posted at least ____ days before the day of sale in three public places in DeSoto County," and that this printed provision was modified by the draftsman of such deeds of trust, either with pen and ink or by typewriter, before their execution, by inserting in the said quoted printed provision in the deed of trust in favor of the said Tipton, trustee, immediately after the words "posted at least ____ days," the words "according to law," and by inserting in the said quoted printed provision in the deed of trust in favor of Grady Johnson, trustee, after the words "in three public places" the words "according to law," the parties intended that the words "according to law" in each of said deeds of trust should be substituted for the entire printed provision hereinbefore quoted relating to how the notice of the time, place, and terms of sale should be given; that is to say, that since the quoted provision, as a whole, in the printed form, dealt with the matter of how the sale should be advertised, and real estate, as well as personal property, was being conveyed by the deeds of trust, the parties in modifying such provision by inserting the words "according to law" intended that the sale should be advertised only in the manner then provided by law under Section 2772, Code 1906, Section 2431, Hem. Code of 1927, Section 2167, Code 1930, which were in force at the time of the execution of the deeds of trust and the foreclosures thereof, and which statutes provide that the advertisement of the sale of lands "under mortgages and deeds of trust . . . shall be . . . for three consecutive weeks preceding such sale, in a newspaper published in the county . . . and by posting one notice at the courthouse of the county where the land is situated, for said time, . . . 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."
Although it was held in construing the above quoted statutory provision in the case of Wilczinski v. Watson, 110 Miss. 86, 69 So. 1009, that such statute does not take away the right of the parties to contract for a longer period of advertisement, or for other additional safeguards for the benefit of the mortgagors, and that where the deed of trust involved in that case provided for thirty days advertised notice of sale, a sale made after only twenty-two days of publication of the notice of sale did not comply with the terms of the deed of trust and was therefore void, it is nevertheless true that the question for decision in the case at bar is controlled by whether or not the parties intended by the use of the term "according to law" that these sales, respectively, should be advertised by publication in the county newspaper for three weeks preceding the sale, and by posting a copy of the notice at the courthouse door — thereby fully complying with the law — and in addition thereto by posting such copy in two public places in the county other than the courthouse, or, on the other hand, intended by the insertion of the words "according to law" to thereby substitute the statutory method of advertising the land for sale in lieu of the entire printed provision in the deed of trust hereinbefore quoted dealing specifically with the question of how the lands should be advertised for sale. The trial court adopted the latter view.
It will be observed that the statutory provision in question relates not only to the length of time within which the notice of sale is to be published and posted but also as to where it is to be done, and since the printed provisions in the two deeds of trust here under consideration when providing for the sale to be made "after giving notice of the time, place and terms of sale, by advertisement posted at least ____ days before the day of sale in three public places" dealt with both the time within which and the places where the advertisement was to be made, it would appear that the contention of the appellees is sound when they say that in modifying the quoted printed language by inserting with ink or typewriter the words "according to law," the modification not only prescribed the length of time but also the places where the advertisement should be made in lieu of the printed provision in that behalf, and was intended as a substitute therefor. It will be noted that the words "in three public places in DeSoto County" are a part and parcel of the entire clause requiring notice of the sale to be given "by advertisement posted at least ____ days before the day of sale in three public places in DeSoto County." And it would therefore seem to be the more reasonable construction to hold that since "according to law" has reference to the statute dealing with both the time within which and the places where the notice shall be published and posted, the insertion of such term was intended as a substitute for the entire printed provision in that behalf. If it had been provided that the advertisement should be "according to law" and also "in three public places," the sale as made would be void under the Wilczinski case, supra, the provision being a matter of contract.
While not controlling on the question it would seem from the fact that the sufficiency of the publication was not challenged by the mortgagors for nearly nine years after the sale, during all of which time the purchaser and his vendee were in possession of the land, the parties themselves must have understood that the insertion of the words "according to law" in the printed form, instead of filling in the blank space therein, was intended to substitute the statutory method of advertisement in lieu of the incomplete printed provision for the sale to be advertised by posting notice "at least ____ days before the day of sale in three public places in DeSoto County" — a meaningless provision without the insertion of the words "according to law."
On the other hand, the argument is somewhat persuasive that the insertion of the words "according to law" was intended as a substitute only for the words "posted at least ____ days," and that the stipulation for the sale to be advertised "in three public places in DeSoto County," not having been eliminated, the same remained in full force and effect. However, we are of the opinion that the contrary view hereinbefore stated by us is the better one under the circumstances.
In so holding, we are not unmindful of the rule that while written (or typewritten) parts of a contract prevail over the printed part, it is nevertheless true that whenever it is possible by any reasonable interpretation, when there is no conflict or inconsistency between the two, they should be reconciled so as to give effect to both. However, we have decided after a careful study of the instruments in question that a reasonable interpretation of them leads only to the conclusion that the inserted typewritten words in reference to how the lands were to be advertised had the effect of superseding the printed provision in regard thereto in its entirety.
From what we have said it follows that the bill of complaint stated no ground for relief as against the foreclosure under the deed of trust in favor of Grady Johnson, trustee, and none against the foreclosure under the deed of trust in favor of J.R. Tipton, trustee, except, as hereinbefore stated, on the ground that it affirmatively appears from the record now before us, and particularly from the recitals of the trustee's deed made by Tipton, that the mistake in the land description affected his notice of sale as well as his deed to the purchaser.
The cause having been heard only on demurrer, the same must, therefore, be reversed and remanded.
Reversed and remanded.
L.A. Smith, J., recused himself.
ON SUGGESTION OF ERROR.
Appellees, in a combination motion and suggestion of error, have stated that the two trust deeds exhibited by them to the bill herein were copies of certified copies of the recorded instruments as furnished to them by the chancery clerk, and which certified copies so furnished were erroneous and not true copies of the recorded instruments, especially in respect to the requirements for advertising the property for sale, and they ask that we grant permission to them to amend their bill so as to exhibit true and correct copies of such instruments and present the true facts to the lower court.
Our original opinion herein does not preclude such amendment, or any other proper amendment, or pleading, by either side, in the further trial of the cause in the lower court, but application so to do, if permission is needed, should be made to the chancellor.
Suggestion of error overruled.