King v. Jones

Holden, J., delivered the opinion of the court. The appellant, -James King, sued the appellee, W. E. Jones, in ejectment for the possession of the land involved in this suit. Upon the conclusion of the testimony a peremptory instruction was granted the appellee, defendant below, from which this appeal is prosecuted. [328] The correctness of the action of the lower court depends entirely upon the settlement of one question in the case, and that is whether or not the appellee, Jones, obtained a valid title to the land under a foreclosure sale. Appellant, King, had executed a deed of trust upon the land in favor of one Mobley, trustee, for the benefit of one Perry. Upon failure to pay the amount due under the deed of trust, the beneficiary, Perry, substituted one G. O. Eeid as trustee in the place of the said Mobley. The substitution written upon the deed of trust was in the following language: “I hereby appoint G. O. Eeid as substituted trustee instead of M. C. Mobley to execute this deed of trust. [Signed] W. W. Perry. 2/1/1911.” The beneficiary, Perry, lodged this substitution with the chancery clerk of the county, who, through his deputy, copied it on the margin of the record of the said deed of trust, and Perry signed this marginal notation of the substitution. Following this the substituted trustee proceeded to sell the land under the terms of the deed of trust, after having given the proper notice, and executed a deed to the purchaser, who afterwards deeded it to the appellee. The precise inquiry is whether or not there was a legal and valid recordation of the substitution of the trustee so as to make it appear of record as required by section 2773, Code of 1906, section 2277, Hemingway’s Code, which is as follows: “Substitution of Trustee Must Appear of Eecord.— Sales of land made under deeds of trust by substituted trustees shall not convey the interest of the grantor or grantors threin, but shall be absolutely null and void, both at law and in equity, unless the substitution shall appear of record in the office of the chancery clerk of the county where the land is situated, and [329] unless it shall so appear by being actually spread at large upon the record before the first advertisement or notice of sale shall have been posted or published; the filing for record or lodging with the clerk not being sufficient. Such substitution, however, may so appear by a separate instrument recorded as above set out in all respects, or a copy of such substitution may be recorded as above set out. (Laws 1896 c. 966.)” Putting the question in another way: If the substitution of the trustee here did not appear of record before the first notice of sale was made, this sale is absolutely void, and the appellant would be entitled to reversal because he would still have the legal title to the land; but, if the notation upon the margin of the record of the deed of trust by the chancery clerk in the manner and language employed here is a substitution “appearing of record” in the office, of the chancery clerk, then the statute, has been substitutally complied with and the sale was void. It will be observed that the statute provides two methods whereby the substitution of the trustee may be recorded. The method first appearing in the' section is the one that was pursued by the beneficiary in this case. This court has never decided the point involved. However, we find no great difficulty in reaching the conclusion that the statute was substantially complied with and that the sale by the substituted trustee was legal and valid in the case before us. The contention of appellant that the notation of the substitution on the margin of the record of the deed of trust was unofficial and not a legal and valid recordation of the substitution because the notation on the record did not appear by official attestation to have been made.by the chancery clerk, or under his direction or supervision, is untenable, in our judgment, for the reason that the evidence in this case shows as a matter of fact that, while the chancery clerk did not attest [330] the notation on the record, nevertheless he wrote it there and it was signed by the beneficiary under the supervision of the clerk. Certainly the clerk “spread” the substitution upon the record in the performance of the functions of his office. The clerk having made the notation on the record under his charge, the substitution then and there legally “appeared of record.” Of course, the notation record of the substitution of the trustee would have been more satisfactory and conclusive had the clerk attested the notation and signature of the beneficiary; but, in the absence of such attestation by the clerk, the proof offered in this record was competent to show that as a matter of fact the clerk did in his official capacity spread on the record the substitution of the trustee by writing it there and seeing it signed by the beneficiary. ■ We have carefully avoided passing upon the question of whether or not the- substitution of a trustee recorded by notation on the record by the beneficiary without the knowledge of the clerk is a valid and legal record of the substitution. We do not decide this point because it is unnecessary to do so. Ip the meantime the legislature may make the statute clearer in this regard by some change or amendment thereto. The judgment of the lower court is affirmed. Affirmed.