Smith v. Williams-Brooke Co.

Stevens, J., delivered the opinion of the court. Williams-Brooke Company, appellee herein, instituted this action of unlawful entry and detainer against appellant in accordance with procedure outlined by chapter 147 of the present Code. From an adverse judgment entered against him by the unlawful entry and detainer court appellant, as the defendant in the proceedings, appealed to the circuit court, and upon the trial of the cause on its merits in the circuit court a peremptory instruction was granted in favor of appellee, as plaintiff. From the judgment entered in pursuance of said instruction, appellee brings the case to this court for review. Appellee is a firm doing a mercantile business in Newton county, and in the usual course of its business accepted from appellant a deed of trust to secure a certain promissory note in the sum. of one hundred and sixty-five dollars due and owing by W. H. Smith, appellant, and his wife, Eosa Smith, and — 398 — also to secure subsequent advances. The promissory note was payable on or before November 1, 1911. The deed of trust in question , was given upon a mule and forty acres of land, as well as the entire crop to be grown during the year 1911. Default having been made in the payment of the indebtedness secured by the deed of trust, W. C. Longmire, the trustee named in the trust deed,' in pursuance of the provisions of the instrument, duly published in January, 1912, notice of foreclosure sale, and on February 13, 1912, sold the real estate at public auction in accordance with law and the provisions of the deed of trust. Appellee, the beneficiary bid in the property and received from the trustee the usual trustee’s deed. Appellant having refused to surrender possession of the premises conveyed by the trustee’s deed, appellee resorted to this possessory action for relief. On the trial of the case in the circuit court the appellant, as a witness in his own behalf, testified that he had paid a part of the indebtedness secured by the deed of trust, and “offered to pay the balance.” The substantial portion of his testimony on this point is disclosed by the record as having been introduced in the absence of the jury, and is as follows: “Q. You say that left a balance of eighty-four dollars and fifty-two cents? A. Yes, sir. Q. When did you offer to pay it? (Objection. Objection sustained. Exception.) A. In December, 1911.” After all the testimony had been introduced the court peremptorily charged the jury to find for the plaintiff and refused the several instructions requested by the defendant. One of the refused instructions was, in effect, a statement' that, if the jury believed from the evidence that the defendant in December, 1911, “offered to pay, and did make a legal tender, the balance due, on the said deed of trust,” and that said company refused to accept said payment, and thereafter instructed the trustee, W. C. Longmire, to advertise and sell the land mentioned in the deed of trust, said sale was void. — 399 — The evidence fails to disclose any irregularity in the notice of the trustee’s sale,, in the manner of conducting the sale, or in making the sale. The only question that merits consideration is the contention of counsel for appellant that, a tender of the balance due on the •deed of trust having been made to the beneficiary before the deed of trust was foreclosed, and this tender having been refused, any sale by the trustee is void and conveyed no title. Whatever the holding may be in other states as to the effect of a legal tender upon the lien of a mortgage or deed of trust, our court has long since repudiated the doctrine that a tender of the amount secured by deed of trust discharges the lien given and ■ evidenced by the instrument. Campbell, C. J., in the case of Tishimingo Savings Institution v. Buchanan et al., 60 Miss 496, announces the- views of the court as follows: “We repudiate the0 doctrine that a tender of the sum due discharges the lien of a mortgage or deed of trust. There was a reason for such doctrine when a mortgage was an absolute conveyance of the estate, if the debt was not paid according to its terms; but it is without .any sensible foundation in the present view of mortgages as mere securities for debts.” The right of the purchaser of land at a trustee’s sale to maintain this action of unlawful entry and detainer was expressly approved in the case of Marks v. Howard et al., 70 Miss. 445, 12 So. 145. Appellant’s offer to pay, according to his testimony, was in December, after there was a default in the payment of the indebtedness secured by the deed of trust, and therefore .after breach of the conditions contained in the instrument itself. The court heard the testimony of Mr. Smith in reference to payment of a part of the indebtedness and tender of the balance, this evidence being fully inquired into in the absence of the jury; and, after all the witness had to say on this subject was incorporated — 400 — into the record, the court held the evidence incompetent on thé issue raised by the possessory action here prose-, cuted. The action of the court in excluding this testimony and in refusing the instruction based hereon was, in our judgment, correct. It has been expressly held by our court that purely equitable defenses cannot be interposed in this action of unlawful entry and detainer. There was no showing by Mr. Smith that the terms of the deed of trust in reference to foreclosure were not complied with. The trustee, in making the sale, satisfied the terms of the instrument and the law of the land. That a trustee’s deed is prima facie evidence of the correctness of its recitals was expressly recognized by our court in Tyler v. Herring, 67 Miss. 169, 6 So. 840, 19 Am. St. Rep. 263, and other adjudications of this court. In the case mentioned Judge Campbell well says: ‘ ‘ The true view is that the plaintiff begins and ends with the burden of proof. Introducing the trustee’s deed, he makes a prima facie case. It then devolves upon the defendant to meet the case thus made, failing in which the plaintiff is entitled to recover.” The only way the defendant attempted to meet the case made by the plaintiff was to show one single solitary offer to pay the balance of the secured debt a long while prior to the first publication of the notice of sale. The tender testified about was not even kept good. In Home Association v. Leonard, 77 Miss. 39, 25 So. 351, our court, through Whitfield, J., said of the defenses therein attempted to be interposed that: “The defenses which would be available, if any, are equitable, and cannot be interposed in this action. . . . The trust deeds are not void for illegality; and, if it be true that the equitable defenses can be sustained by proof — as to the sufficiency of which proof we say nothing now — the appellees may have their day in the appropriate forum.” — 401 — If a tender after the day fixed for payment were a discharge of the lien, as appears to be the holding in New York and Michigan, then the evidence in this case would perhaps have been relevant. Even then the tender should be kept good, Tuthill v. Morris, 81 N. Y. 94. But, if this tender does not discharge the lien, as expressly held by our own court, then certainly the trustee had the right upon request to foreclose. It would be inconsistent to hold- that the beneficiary still has his lien, but does not enjoy the right to have his lien foreclosed. There cannot be a right without a remedy. If the beneficiary still owns a lien,' he still has the right to have the lien foreclosed in accordance with the contract of the parties. Our court is not alone in the holding announced by. it in Tishimingo Savings Institution v. Buchanan et al., supra. Mr. Jones in his work on Mortgages (6th Ed.) par. 892, lays down this rule: “A tender of the amount due on a mortgage after breach of the condition does not operate at common law as a discharge of the debtor’s liability. If a debtor wishes to extinguish his liability for subsequently accruing interest, or is seeking some affirmative relief, the tender must be kept good, to avail anything. The appropriate office of a tender, then, is to relieve the debtor from subsequently accruing interest to preserve the right of redemption, or to protect him from the costs of a suit to redeem.” In some of the states the lien of the mortgage is discharged by a tender, but, as stated, this rule does not obtain in Mississippi, and in its application to the facts of any particular case the courts of those states giving such effect to a tender are not in accord. Mr. Jones in paragraph 1894 further says: “Upon the delivery of the deed the purchaser is entitled to the possession of the property, and he may maintain a writ of entry or an action of ejectment to recover it. ” — 402 — And in paragraph. 1798: “A sale under the power after a tender made, and not accepted, transfers the legal title and possession; but the mortgagor may preserve his right to redeem against a purchaser by giving him notice before or at the sale of the tender. Until he is restored to the legal right of possession by a decree of court in equity he can neither maintain nor defend a writ of entry against one claiming under the mortgage.» The foreclosure is complete by the sale notwithstanding the tender. And, unless the mortgagor proceeds in equity to redeem, the purchaser is entitled to possession, and may recover it by a writ of entry, although he purchased with full knowledge that after breach and before the sale the mortgagor tendered the whole amount due under the mortgage.” In the case of Crain et al. v. McGoon, 86 Ill. 431, 29 Am. Rep. 37, the court makes this observation: “When it is reflected that no serious hardship is imposed on a party making a tender by requiring him to keep it good, it would seem clearly unjust, under .•circumstances like those alluded to, to require a party to whom a tender is made, after the day of payment has passed, to elect at once to accept or reject it, at the peril of losing his security if, he misjudges as to his rights. An exceptional instance of injustice that would result from such a rule is found in facts disclosed by this record.” The holding of the Illinois court in this case was expressly approved by the supreme court of Florida in Matthews et al. v. Lindsay et al., 20 Fla. 962, the court, among other things, saying: “The rule prevailing in New York and in Michigan that a tender after a debt became due operates to discharge thé mortgage and to leave the mortgagee only, a personal remedy for his debt has not been adopted in other states.” — 403 — The universal weight of authority is to the effect that a tender once made must he kept good. On this point Briekell, C. J., in Frank v. Pickens, 69 Ala. 369, makes the following sensible statement: “The tender having been made, there is a duty resting upon the party making it to keep the money safely, ready to pay it over whenever the other party may manifest his willingness to accept it. A neglect of the duty or disabling himself from performing it is ah abandonment of the tender. And, when the benefit of the tender is claimed in court, the money must be produced and placed in the custody of the court, so that, if the tender is adjudged good, the money may be awarded to the party to whom it is then ascertained to belong rightfully. Smith v. Phillips, 47 Wis. 202, 2 N. W. 285. If the defense of appellant is 'made to square with this announcement of the law, then he has certainly failed to measure up to the requirements; he did not keep his tender good; he did not bring the money into court; and for all this court now knows he may not be able to pay the balance admitted to be due. We are not called upon in this action to say what the rights of appellant may be. He might well have gone into equity and enjoined the sale, tendering i into court at the time the amount due, and thereby prevented the very sale here complained of. He máy yét have his right of redemption in the proper form. As to this we express no opinion. It might also be observed that appellant made no tender to the trustee before or on the day of sale. The trustee is .a disinterested party, selected by the parties themselves. He has a duty to perform. If a tender of the correct amount had been fairly made to the trustee, he could and should have accepted the, money. Instead of keeping good the tender, appellant sits idly by while the trustee advertises his home for sale and suffers a sale to be concluded and a conveyance — 404 — made. The deed of trust, the solemn contract of the parties, should not and cannot he so easily abrogated. So long as the lien existed the trustee had the right to foreclose. Having the right to foreclose, he had the right to sell in accord with the terms of the instrument. This he did. There is no showing of oppression or fraud. Appellee was not required to explain why the tender was refused, because the court excluded the testimony of appellant, rendering it unnecessary for appellee to rebut or explain. The only particle of evidence upon which to predicate fraud is the testimony of appellant that appellee refused his one, single offer to pay in December, after the debt was due, and at least a month before the trustee began action. Affirmed.