Kelly v. Skates

SteveNS, J., delivered the opinion of the court. Appellee, Skates, instituted this action to recover possession of a certain tract of land then occupied by appellant, Marcus Kelly, the plaintiff alleging in his affidavit that he was the owner of the premises and legally entitled to the immediate possession thereof, and that the defendant, upon due notice, refused to vacate. On the trial of the case in the circuit court appellee relied upon a trustee’s deed executed by the trustee in a certain deed of trust given by Kelly upon the premises in question to secure an indebtedness in favor of Skates. The cause was submitted to a jury, and there was a verdict and judgment in favor of the plaintiff, from which appellant appeals. The sole question raised by this appeal is the contention of appellant that the deed of trust provided that the trustee should makei sale of the lands in front of Gr. W. Skates’ store; that there was an oral agreement to change the place of sale, and that this agreement,, being oral,, was invalid, and that this “changing of the place of sale from that named in.the deed of trust to another place so vitiated the sale that it is void and of no force and effect.” The plaintiff contended and introduced testimony tending to prove that the indebtedness secured by the trust deed was long past due and unpaid; that demand was made upon Kelly for payment; that Kelly expressed himself as being unable to pay the debt; that plaintiff thereupon warned the defendant that he would be compelled to foreclose; and that Kelly thereupon stated “that if he was going to sell the land, he wanted to sell it at Utica, where there would be somebody to bid on it;” that thereupon the parties agreed that the sale would take place in front of the post office in the town of Utica; that due advertisement was made of the sale, and Kelly was informed of the time and the changed place, and made no objection to the sale tak [899] ing place in the town of Utica. ■ There is testimony tending to show that Mr. Skates’ store was located in a rural settlement some six miles from the town of Utica, and that- there are no houses or industries there except the one store and residence, the property of Mr. Skates, while the town of Utica has several hundred inhabitants, and was a more public place and more available to prospective purchasers. ■ The testimony tends to show also that appellant insisted upon the land being sold in Utica, and that he told appellee that he would have a man ready to pay the money or bid in the place, and that one conversation to this effect took place after the trustee in the deed of trust had instructions to sell, and after the trustee had informed appellant that the sale would be made in the town of' Utica. There is no question of fraud or bad faith, and no point is made upon the method of advertisement or sale except as to'the place of sale. Appellant submits that: “The place of sale could not be changed from that named in a deed of trust unless the change was made by a written instrument, duly signed and acknowledged with the same solemnity as the original deed of trust.” We do not believe the law so limits the right of contract. The oral agreement to change the place of sale does not, in our judgment, violate any statute of our state. The agreement questioned was certainly not a contract for the sale of lands, and was not a declaration of or the creation of any trust or confidence in any lands. Sections 4780 apd 4781, Code of 1906 (Hemingway’s Code, section 3124 and section 3125), were not violated. The oral agreement only pertains to one of the material conditions upon which the trustee could exercise his power of sale. The deed of trust was not silent as to the place of sale, and under the general law of contracts we see no obstacle in the way of the parties changing the written stipulation as to the place- of sale900 by an oral understanding. The combined efforts of counsel for both parties bave failed to find or refer us to any case that directly bears upon the question, except the case of Chandler v. Peters (Tex.), 44 S. W. 867. There Chandler is the mortgagor, and himself made an oral request of the trustee to sell the lands in Polk county instead of Galveston county, and thereby induced the sale to be made at a place other than the one stipulated for in the writing. The court, speaking-through Fly, J., observed: “If appellant, by his words and conduct, induced the sale of the land to take place in Polk county instead of Galveston county, and was present and by his conduct encouraging the sale of the premises, and any one was induced by such acts to buy the land appellant would, we believe, be estopped from denying the validity of the sale.” The facts of that case may be somewhat stronger against the contention of appellant than the facts of the present case,. but the principle, we believe, is essentially the same. There is no evidence that appellant here appeared at the sale and actively encouraged bidding. There was abundant evidence, however, that he requested that the sale be made in Utica, and that he was duly informed of the time and changed place, and had an opportunity of being present. He “by his words and-conduct” is estopped now to question the validity of this sale. By his affirmative action he has caused the sale to be made at a place of which he now complains. The undisputed proof shows that Utica was a more advantageous place to sell. Frequently trustees in deeds of trust have been invested with a discretion in naming the place of foreclosure, and the right of the parties to so contract has not been challenged. Our court, in Lee v. Hawks, 68 Miss. 669, 9 So. 828, 13 L. R. A. 633, said: [901] “A defense may be made by showing an executed parol agreement waiving or annulling a particular provision of tbe written contract,” and, quoting from Mr. Benjamin on Sales, “parol evidence to prove,- not a substantial contract, but tbe assent of tbe defendant .to a substituted mode of preformance of tbe original contract, when that performance is completed, is admissible. ’ ’ Upon tbe sole contention here' made, we think tbe learned circuit court committed no error in tbe instructions complained of, and tbe judgment of tbe lower court will be affirmed. Affirmed.