Rawlings v. Anderson

*635 Pack, J. Appellant, in his bill and amended bill, attacked the validity of a foreclosure sale of land made by R. H. Brandon, substituted trustee, under a deed of trust executed by appellant to the Federal Land Bank, as beneficiary, and also challenged the foreclosure sale of certain live stock under a chattel mortgage executed by appellant to one Mr. Byrnes, as beneficiary. Both sales were attacked on the ground of fraud on the part of Anderson and Byrnes, and also on the further ground that the substituted trustee did not offer the land for sale and sell it in accordance with the terms and proAÚsions of the instrument itself, as required by section 2772, Code 1906 (section 2431, Hemingway’s 1927 Code). The demurrer of defendant Byrnes to the bill, as amended, was sustained. Anderson answered under oath; answer under oáth not being waived. Every allegation of fraud was denied in the answer. It put in issue every controverted fact, and the answer was made a cross-bill. *636 On these issues the court heard oral proof and documentary evidence. A final decree was rendered for the defendant, holding that said sales were free' from fraud, and the decree dismissed the bill. There being a conflict in the evidence as to the allegations of fraud, and the chancellor having found for the defendant, this finding will not be disturbed in so far as it relates to the issue of fraud. The serious question in the case, however, is whether or not the trustee’s sale of the land is subject to the other attack made upon it. The land embraced in the deed of trust was described as follows: “Retirement plantation, in Adams county, Mississippi, containing about eight hundred (800) acres and being the northwesterly portion of section twenty (20), township five (5) north, range one (1) west, bounded on the north by Beekman property, on the east by Beekman, south by Franklin plantation,- and west by ‘Deerfield plantation.’ ” That part of section 2772, Code 1906 (section 2431, Hemingway’s 1927 Code), pertinent to this question reads as follows: “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. ” Section 111 of the state Constitution directs that: “All lands comprising a single tract sold in pursuance of decree of court, or execution, shall be first offered in subdivisions not exceeding one hundred and sixty acres, or one quarter section, and then offered as an entirety, and the price bid for the latter shall control only when it shall exceed the aggregate of the bids for the same in subdivisions as aforesaid; but the chancery court, in *637 cases before it, may decree otherwise if deemed advisa- > ble to do so.” Appellant’s contention is that this land comprises a single tract and is “wholly described by the governmental subdivisions and surveys” (italics ours); that the statute above quoted applies; that this statute was not complied with in the trustee’s sale of the land, and therefore the sale is void. Appellee counters with the contention that the land in question is not “wholly described in the deed of trust by governmental subdivisions and surveys ; ’ ’ that it is described as one tract bounded by physical boundaries, and therefore should have been sold in its entirety; that in offering the land in “undivided” or “undescribed” parcels the trustee did so out of “an abundance of caution,” and not because he was required by statute or the deed of trust so to do. From these conflicting contentions some interesting questions arise: (1) Does the phrase, “wholly described by governmental subdivisions and surveys,” have reference to the government plan of subdividing land into sections, townships, and ranges, with the sections subdivided into halves, quarter sections, etc., or do the words have reference to any and all kinds of official surveys made by the government as might be shown by maps or surveys of that particular territory? (2) Shall we determine if the particular land is “wholly described by governmental subdivisions and surveys” from the description in the deed of trust or mortgage or as it appears in the original government survey of the particular territory involved? A decision of these questions is pretermitted, as we think another question is decisive of the case at bar. It will be noted that one of the appellant’s objections to the sale is that it was not made “in the manner and form as required by the said mortgage and deed of trust.” The deed of trust directs the trustee, in case of sale, to offer and sell the land, or a “ sufficiency there *638 of,” etc., to satisfy the debt. Does this language bind tbe trustee to sell it in parcels instead of en-masse?- And, if in parcels, would it not be controlled by tbe statutory scheme, as provided by tbe Code section, supraf Foreclosure ' sales in deeds of trust or mortgages, in parcels or in bulk, may be directed by tbe contracting parties. Even tbe statutory requirement of section 2431, Hemingway’s 1927 Code, may be waived. Brown v. British & American Mortgage Co., 86 Miss. 388, 38 So. 312. The trustee is tbe agent of both parties, and it is bis duty to sell tbe land in such manner as will be most beneficial to tbe debtor. In tbe absence of express directions, or statutory requirement, he may use bis own discretion, but it must be free from fraud, and tbe discretion not abused. 19 R. C. L. 607, case note, 92 Am. St. Rep. 585. It appears to us that tbe parties have adopted tbe plan of selling the land here in parcels—for bow could a trustee offer for sale a “sufficiency” of tbe land to pay tbe debt, if it were not first offered in known parcels or known subdivisions? This brings us to the next question: Did tbe trustee offer and sell tbe land in parcels or subdivisions? The undisputed proof is that be first offered it in one hy/ndred sixty-acre lots “undescribed” (italics ours). This was probably done as an attempted compliance with tbe statutory scheme. We think it falls short of such compliance. No person could intelligently bid on an undescribed one hundred sixty-acre tract. If, perchance, bis bid equalled the indebtedness, no valid deed could be executed to an “undescribed” tract. We bold, therefore, that tbe trustee’s sale of tbe land was void, and tbe case, for that reason, should be reversed and remanded. Reversed and remanded.