Provine v. Thornton

Calhoon, J., delivered the opinion of the court This is a proceeding to annul a sale made by a substituted trustee. The land under consideration had been held for years, and was held at the time of the execution of the trust deed, by appellees as a home place, all as part of one plantation, although [401] eighty acres of it were about a half mile removed from the balance of the property, but connected with it by a public road. The trustee, in making the sale, first sold this detached tract of eighty acres, announcing when he sold it that the sale was to be final, and it would not be resold together with the balance as a whole under the law. It is well shown that this act made the property bring less than it otherwise would have brought. This failure on the part of the trustee is one of the grounds for the annulment of his sale. - Another ground is that the substitution of Moring as trustee for Provine, the original trustee, was not properly of record before the sale was made. We regard these two propositions only necessary to be noticed. Beeognizing that the usual signification of the word “tract,” as applied to land, is contiguity of the parcels of property, the question remains as to the proper definition of it in its application in this case to trust deeds under the constitution and laws of this state. Section 111 of the constitution provides that “all lands comprising a single tract sold,” etc., “shall be first offered in subdivisions not exceeding 160 acres,” etc., “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.” By Ann. Code 1892, § 2443, it is provided that “all lands comprising a single tract,, and wholly described by the subdivisions of the governmental surveys, sold under mortgages and deeds of trust hereinafter executed, shall be sold in the manner provided by section 111 of the constitution.” In our view the lands involved in this litigation comprised only a single tract, and they therefore should have been sold as if they lay contiguously. We are satisfied that, within the purview of the law, the fact that eighty acres of the property were separated from the main body of the land in the conveyance did not make that eighty acres a separate tract. Pierce v. Reed, 3 Neb. (Unof.), 874, 93 N. W., 154; 27 Cyc., p. 480. The text of this latter is as follows: “On the other hand, although the premises may be susceptible of division or actually divided, [402] yet if they are used, occupied, or naturally constitute one farm, or one lot, the property should be offered as a whole.” We have here the property recognized as one plantation for years, bought as such by the grantors, and so conveyed by them in the mortgage, and we have the further fact that one of the mortgagors, being there present, himself took this view and urged upon the •trustee to sell accordingly. This conclusion would have no effect, of course, upon the actions of a trustee in selling separate and independent plantations, where the question of contiguity might be decisive. The ground of our opinion, in the case before us, is the fact of this and the body of the land being one plantation and the home place. On the other proposition we think the sale was properly vacated by the court below, because there was no sufficient record, before the sale, of the substitution of the trustee. We cannot escape the conclusion that the result of the decisions of our court means that this substitution must precede the sale, and must so appear that it would furnish evidence of title to the purchaser at the trustee’s sale such as would be good in an action of ejectment. It is said in the case of Hyde v. Hoffman (Miss.), 31 South., 415, 416, that “the statute was intended, not only to give security to titles, but to induce bidders to offer a fair price for the pi’operty sold.” White v. Jenkins, 79 Miss., 57, 28 South., 570; Shipp v. New South B. & L. Ass’n, 81 Miss., 17, 32 South., 904. In this last case the court said: “It was the very purpose of the statute that there should be record of such substitution as of all other substitutions of trustees.” Under the act of 1896 it is distinctly provided that sales of land made by substituted trustees “shall not convey the interests of the grantor or- grantors therein until the substitution appear of record in the office of the chancery clerk of the county where the land is situated. Such substitution may appear by a separate instrument recorded as other recordable instruments, or it may be attached to, or a copy thereof may be indorsed by the chancery clerk on, the deed book where such deed of trust is recorded.” Laws 1896, [403] p. 105, c. 96. In the case at bar there was certainly no substitution by a separate instrument, recorded as other recordable instruments, because the paper of substitution was not acknowledged, so as to be recordable, and it was not pretended to be recorded as a separate instrument. It certainly was not bodily attached to the deed book on which the trust deed was recorded, and there is no showing that a copy of it was indorsed by the chancery clerk on the deed book where the trust deed was recorded. Besides, it must be observed that Provine was the trustee in the original trust deed, and that, in his paper refusing to act, he refuses to act as trustee “named in the deed of trust to me executed by Jas. Thornton [and others, naming them] on the 1st day of January, 1900, and recorded in the chancery clerk’s office in Calhoun county, Mississippi, in Deed Book ———, page —■—.” On this refusal the action of Newberger was to make and sign the substitutionary paper, reciting that “on account of the refusal of J. P. Provine to act as trustee in a certain deed of trust executed to him as trustee on January 1, 1900, by Jas. Thornton [and others, naming them], wherein I, the undersigned, am beneficiary, I hereby make, constitute and appoint W. E. Moring trustee in place and stead of said Provine, according to the provisions of said deed in trust.” The blanks in the first paper were never filled until long after the sale. If it could be held that there was a sufficient copy of these' two papers, indorsed by the chancery clerk on the deed book where the deed of trust is recorded, still, if a person contemplating a purchase had gone there, he would not have found the deed as mentioned, but would have seen recorded a trust deed from Jas. Thornton “of the first part, J. P. Provine of the third part,” without the name of any party of the second part or beneficiary in the instrument. It is true that at the head of the instrument, and before it begins, there appear the words, “Jas. Thornton, Deed of Trust to Edwin Newberger.” That recorded trust deed shows an indebtedness to Provine, the party of the third part; and the conveyance is to the party of the second part, [404] who does not appear in the instrument, and it proceeds to state that “whereas, the party of the first part is indebted to the party of the third part [Provine] in the sum,” etc., and it proceeds to provide that, on default, it should be lawful for the party of the second part, whom it does not name, at the request of the party of the third part, who is Provine, to take possession and sell, etc., and it concludes that, in the event of the death of the party of the second part, not named, or his refusal to1 act, the party of the third part, Provine, is empowered to fill his place by appointment. If the mistake was in copying, and if the original trust deed was right, it would not alter the case, because the reference is to a deed book without number or lettering and the page left blank, and so, if the contemplating purchaser had found the deed as it was recorded in the deed book, he would not have found any such instrument as he could buy under, and could not have proceeded in an action of ejectment. In fact, he would have been powerless, except by invoking the intervention of the chancery court. If there had been no attempted record of the instrument, but a reference to a trust deed lodged for record, and it had been left there for record, the rule would have been different. The doctrine of putting one on notice cannot apply to a casé where a particular deed is referred to, even if it had been referred to by the proper deed book and its page, when that deed has on its face no legal pertinency to the actual sale. We think that,' where a copy of such papers “may be indorsed by the chancery clerk on the deed book where such deed of trust is recorded,” there should be some showing that it was the act of the chancery clerk, though we do not decide now that this or the blanks in the paper would avoid the trustee’s sale. Affirmed.