Graham v. Fitts

Campbell, J., delivered the opinion of the court. The plaintiffs in error executed a deed of trust conveying land to J. C. Bogle, as trustee, to secure a debt to T. T. Bonner. The condition of the deed of trust is in these words, viz.: “ Should said parties of the first part fail to pay and to satisfy said note at maturity, then it shall be the duty of the party of the second part (trustee), at the request of the party of the third part (Bonner), after giving thirty days’ notice of the time and place of sale, by posting the same in three or more public places in said county and State, to proceed to sell at public auction for cash in hand to the highest bidder all the described lands,” &c. The debt matured and was not paid. Bonner, the beneficiary, had died, and an administrator of his [312] estate was appointed, a,t whose instance the trustee posted notices of a sale of the land conveyed by the deed of trust to be made on the 30th January, 1875. Three notices were posted thirty days before the day of sale. One was posted at the court-house door ; another at the post-office in West Point, the county seat of the county; and a third at some place in the country in the same county. The notice of the sale posted at the post-office was posted on- the inside of the door, so that it could not be read when the door was shut. Said door usually stood open every day from 8 o’clock, A. M., to 5 o’clock, P. M., and every Sunday from 8 o’clock, A. M., to 10 o’clock, A. M., and was then closed until Monday morning. When the door was open the notice was plainly to be seen. The evidence warrants the conclusion that the notice posted at the court house was removed before the sale, that that at the post office remained posted until the sale, and there was no ■evidence as to that- in the country. The sale was made by the trustee • at public auction to the highest bidder for cash, was bid off by the administrator, J. C. Bonner, in his individual capacity, and was duly conveyed to him by the trustee. Subsequently J. C. Bonner conveyed the land by quitclaim deed to E. J. Fitts, who is a defendant in error and the wife of the co-defendant in error. The plaintiffs in error, who were grantors in said deed of trust, remained in possession; the defendants in error brought ejectment, and on trial the foregoing facts were developed. Verdict and judgment were rendered in favor of the plaintiffs below, and hence this writ of error by those who were the defendants below. Many questions were made in the trial below, which have been discussed in the brief of the counsel for the plaintiffs in error with a wealth of learning and profusion of citations rarely surpassed; but we do not consider it necessary to notice the questions in detail, since we think the true point in the case was missed in the trial below, and the result reached upon a misconception of the real question which disposes of the case. Some of the charges by the judge to the jury given at the instance of the plaintiffs and the defendants were erroneous ; but the plaintiffs in error had the benefit of more errors in their favor than the defendants did. We will not [313] particularize, but will give our view of tbe case, as made by the record, as a whole. The contest below was upon the question whether the notices which the trustee had posted remained continuously as posted until the sale, or, if not, whether they were removed by the fraud or procurement of the grantors in the deed of trust, and whether the grantors were estopped to controvert the validity of the sale. The court below sustained the view that the three notices must have remained up until the sale; and, if not, that the sale was void and conferred no title on the grantee of the trustee, and all other questions were subordinated to this one. In our view this was wholly immaterial. The trustee having given thirty days’ notice of the time and place of sale, by posting notices in three public places in the county, had the power to sell the land. It was not necessary to the valid exercise of the power of sale that the notices should have remained posted every day up to the sale. It was not the duty of the trustee to make daily and hourly observation at the three public places of the notices, so as to insure their remaining posted. It is not true that the displacement of the posted notices by casualty or design would invalidate a sale under them, after they had been duly posted. The grantors in the deed of trust having prescribed notice by posting must be held to have assumed the risk of the removal of some or all of the notices by accident or design. The trustee is the chosen agent of the grantor in a deed of trust, vested by him with the legal title to be by him conveyed to a purchaser at the sale to be made under the deed of trust; and when he has determined on a day of sale, and has posted the proper notices according to the deed of trust at the proper time, he may lawfully sell on the day designated, without regard to the fact that wind or rain or some mischievous or evil-disposed person may have removed one or all of the notices. Any other rule would invalidate most sales under deeds of trust which authorize a sale upon posted notices. It would place it in the power of mischievous or evil-minded persons to defeat every proposed sale under such deeds of trust. Any such rule is impracticable and impolitic. Titles would be so insecure under it as to forbid competition at such sales, and lead to the sacrifice of property. [314] The court below properly held that a presumption is to be indulged that the trustee did those acts in pais which were conditions precedent to a valid sale by him, and that the burden of showing the contrary was on those who questioned the validity of the sale. But apart from this presumption in favor of the purchaser at the sale, the fact that notices were posted by the trustee at three places was not denied by the plaintiffs in error, and was fairly established. It is insisted that the notice at the post office was not sufficient, because the door was closed every Sunday after 10 o’clock, A. M. This made no difference. The law does not contemplate that notices of sales will be inspected on Sunday. It is urged that the court house and post office were in the same town, and within one hundred and fifty yards of each other, and that they were not two public places. This objection is not valid. Three different places of public resort, where people would be likely to see the notices and learn of the sale were meant by the terms employed in the deed of trust. Much must be left to the discretion of the trustee as to the selection of places at which to post notices. If one hundred and fifty yards is too short a distance to separate two public places, what space shall be adopted as being great enough ? The law has no rule on the subject. We think that the sale was valid, and that a proper result was reached in the trial, although by a different method from that indicated by this opinion, and as upon the facts of the case the defendants in error were entitled to the judgment they obtained, it is affirmed.