Jones v. Frank

Sykes, J., delivered the opinion of the court. The appellee, Frank, brought an ejectment suit against' appellants to obtain possession of a forty-acre tract of land in Bolivan county. The facts are uncontroverted. The appellants, while owners of the land, gave a deed of trust upon it to secure the payment of some borrowed money. The deed of trust recited that, in case of the failure to pay the note at maturity, the trustee should sell the property to the highest bidder for cash 4 4 after first advertising according to section 2772 of the Mississippi [298] Code, of 1906, and amendments thereto.” The plaintiff in the court'below introduced in evidence the trustee’s deed, over the objection of the defendants. This deed recites with particularity the authority vested in the trustee, that default was made in the payment of the indebtedness, and that the trustee was instructed to sell the land according to the terms of the deed of trust, and then it contains this provision: “I, the said trustee, did on the 12th day of February, 1915, offer for sale and sell the property conveyed to me as trustee, in front of the post office in the town of Shel- , by, Miss., at or about the hour of one o ’clock p. m., after having first advertised the time, terms, and place of said (sale, for three weeks prior thereto, in the Cleveland Enterprise, a newspaper published in, and having a general circulation in Bolivar county, whereupon appeared from among divers persons there assembled, John T. McDonald and bid the sum- of twelve hundred dollars, that being the highest and best bid received, etc.” The deed from McDonald to the appellee in which this land was conveyed to the appellee was then introduced in evidence by appellee, also over the objection of appellant. This was all of the testimony introduced. A peremptory instruction was requested both by plaintiff and defendants. The court granted this instruction on behalf of the plaintiff, and judgment was entered in his favor, from which judgment this appeal is prosecuted. The precise question tó be decided is whether or not when the trustee’s deed is considered as a whole and the recitals therein about the advertisement in the newspapers for three weeks, and no mention is therein made of the posting of a notice of the sale at the courthouse door as required by section 2772, Code of 1906,' we are to presume from the execution of this deed that the sale was properly made? This court has repeatedly held that, where a deed has been executed by a trustee purporting [299] to convey as trustee lands, the presumption of law is., not only that the recitals of the deed are true, but that all-essential conditions were complied with’in making’ the sale; also, that the presumption is to be indulged that the trustee did those acts in pais, which were conditions precedent to a valid exercise of the power of sale. Graham v. Fitts, 53 Miss. 307; Enochs v. Miller, 60 Miss. 19; McCaughn v. Young, 85 Miss. 278, 37 So. 839. In these cases, however, the trustee’s deed either recited a compliance wit'll the terms and conditions of the deed of trust relating to the advertisment and mode of sale, or was ' wholly silent as to these conditions. ■ • The case under consideration is different from any of the cases above referred to. The-trustee’s deed in this case attempts to state fu-lly everything that was done by . the trustee beginning with the power to act- and reciting in detail the advertisment made by him, the time, mode, and manner of sale, as well as the purchaser. As is said in the case of McCaughn v. Young, supra, the .careful conveyancer usually inserts in a trustee’s deed the grant of power authorizing him to act and a recital of the performance of the formalities usually incident to foreclosure of trust deeds. In this case the trustee attempted to fully give this history. He explicitly states that he sold the land “after having first advertised the time, terms and place of sale, for three weeks prior thereto, in the Cleveland Enterprise, a newspaper published in, and having a general, circulation in Bolivar county.” He makes no mention of posting a notice for the required time at the courthouse door. In the case of Fauntleroy v. Mardis, 85 So. 96, recently decided, we held that the posting of a notice at the courthouse door was a part of the advertisment of sale required under section 2772, Code of 1906; section 2276, Hemingway’s Code. This trustee’s deed is not silent as to the advertisment of the proposed sale made by him, but explicity states that it [300] was by publication in the newspaper., This newspaper ■ publication is only a part of the advertisment. In writing the deed his mind was explicitly directed to the kind of advertisment which he made, and in this deed he recites only a part of the advertisment necessary to the validity of a sale under section 2772. This being true, we think the legal maxim of expressio unites est exclusio alterius applies, and that this recital in the deed of trust overcomes the prima-facie presumption that the trustee performed all of these acts in pais required of him. In order for this trustee’s deed to have been admissible in testimony, the burden of proof further rested upon the plaintiff to prove that a notice of the sale was posted at the courthouse door at Cleveland.. In the case of. Minor v. Natchez, 4 Smedes & M. 602, 43 Am. Dec. 488, the return of the marshal on a writ of venditioni exponas showed that — “Legal notice of which sale I had given in the public newspaper called the Courier published in the city of Natchez, etc.” The marshal’s deed recited: “That the said marshal, having given thirty days ’ previous notice that the above-described property would be sold at public auction, etc.” The proper notice in that case in the absence of an agreement of the owner of the land was by posting for thirty days five notices of the sale. It will be noted that the marshal’s return recited only the publication of notice in the newspaper, while his deed recited the giving of a thirty days’ notice. In /the opinion in that case the court assumes that return of the marshal in which he describes the notice given him, namely, the publication in the newspaper, was the only notice of the sale therein given, thereby in effect applying this legal maxim. Reversed and remanded.,