McMahan v. American Building & Loan & Tontine Savings Ass'n

Woods, C. J., delivered the opinion of the court. By the terms of the trust deed from the appellant to the ap-pellee, the trustee therein named, and his successor, appointed as therein provided for, was required to advertise the property on default made in payment of the sum intended to be secured by'the trust deed, in some newspaper published in Lauderdale county, ‘£ for four weeks next before the day of sale, ’ ’ giving time, terms, and place of sale. This was his sole authority to sell, and he was bound to comply strictly with the terms of the power conferred upon him. This he did not do. The advertisement made by the trustee appeared for the first time in the newspaper on March 6, 1897, and the fourth and last publication was made on March 27, 1897, whereby nine days intervened between the last named day and the day when the sale was made, on April 5, 1897. There was not, therefore, advertisement of sale for four weeks next before the day of sale, as required by the terms of the trust deed; and the sale, thus made in disregard of the plain provisions of the instrument, was a nullity, and the deed made to the purchaser at said sale was void. In the absence of evidence that the sale was advertised for four weeks next before the day of sale, the judgment of the court below should have been for appellant. This view reverses the judgment appealed from, but, to avoid further unnecessary litigation and delay, we think proper to say that we find no other reversible error in the record before us. The letter from the auditor to H. M. McKay, of date March 18, 1896, was incompetent, but it was altogether harmless. The sheriff of Lauderdale should have received the privilege license tax, and the damages of one hundred per cent, thereon, precisely as he did, without any instructions from the [970] auditor, and bis (the sheriff’s) notations on the receipts was eminently prudent and proper. In any view that may be taken, this payment of fifty dollars by appellee to the sheriff, under the act of the legislature, chapter 39, acts of 1896, certainly validates the contract made by appellee with appellant, on February 5, 1896, and if the appellee has been doing business, as counsel for appellant think, since March 1, 1896, when it paid the tax of $25, and damages at the rate of one hundred per cent, thereon, that in no way affects this suit, and that question is not before us. Reversed.