Jones v. Salmon

Anderson, J., delivered the opinion of the court. This was a bill in chancery by the appellant, Israel Jones, against the appellees, T. E. Salmon et al, to cancel a conveyance of land made in pursuance of a power in a trust deed, and to redeem the same. Appellees’ demurrer to the bill was sustained, and, appellant declining leave to amend, a decree Avas entered dismissing the bill, from Avhich appellant prosecutes this appeal. Appellant was grantor in the trust deed in question, and appellee Mrs. Scott, Avas the cestui que trust therein. After condition broken there was a foreclosure of the trust deed in pais through Magruder, substituted trustee therein, at which foreclosure sale the cestui que trust, Mrs. Scott, became the purchaser of the land involved, receiving a deed thereto in the usual form, from such substituted trustee. Afterwards the appellee Mrs. Scott conveyed the land to the appellee Salmon. By his bill appellant sought to have said conveyance declared void and canceled, and to redeem the land involved on two grounds: First, because under the poAver contained in the trust deed the substitution of Magruder in place of Mims, the trustee named therein, Avas unauthorized and void; and, second, because said substituted trustee advertised said sale more than three Aveeks next preceding the date on which it Avas made; and in a manner calculated to mislead prospective bidders. We Avill consider these propositions in the order named. The poAver contained in the trust deed in question providing for the substitution of a trustee is in this language: [518] “If from any cause E. K. Mims, the trustee above named, or any succeeding trustee, should fail or refuse to act as such when thereto requested, that then and in that event that party of the third part, or the legal holder of the notes herein secured, shall have the right to appoint in writing another person in the place and stead of the said E. K. Mims, or of any succeeding or substituted trustee,” etc. The trustee named in the deed of trust, Mims, died before condition broken. After condition broken, and on the 12th day of March, 1915, the appellee, Mrs. Scott, by her deed substituted J. D. Magruder in the place of said Mims, reciting in such deed, as the reason therefor, “the said E. K. Mims not being able and willing to execute said trust.” ' It is contended on behalf of the appellant that the decree of the court below must be reversed on the authority of Guion v. Pickett, 42 Miss. 77, and authorities from other states along the same line. In the Guión case at the time of the foreclosure of the trust deed involved the trustee therein named, as here, had died, and the foreclosure took place through a substituted trustee. The power of substitution in that deed of trust provided: “And in case the said trustee shall neglect or refuse” [italics ours] “to execute the trust reposed in him, then the said Jane E. Pickett may appoint some other person to execute the said trust, who shall have, and execute, all the powers and duties conferred and imposed by said deed of trust, upon the said Eobert A. Clarke, trustee as aforesaid.” The court held the substitution under that power to be void on the ground that a condition had arisen not provided for in the power; that such power of appointment must be strictly construed, using the following language, in part: “In the construction of powers, the intention of the parties, if compatible with law, governs the court. But that intention is to be collected from the instrument creating the power. And with regard to the appointment of a new trustee, the power authorizing it should express plain [519] ly the cases in which a new trustee may be appointed, and it should embrace every event that can render such' appointment necessary — such as the neglect or refusal of the trustee to act, his death, absence from the country, wish to retire from the office, or incapacity to discharge its duties. Hill on Trustees, 251. The appointment of a new trustee under a power cannot properly be made, unless the terms of the power clearly and distinctly authorize the appointment in the particular event which may have occurred.” It is true, as contended by appellant, that the principle of strict construction of such a power declared by the court in that case is in line with the great weight of authority in this country. It will be noted, however, that the power of substitution in that case provided that it should only be exercised in the event the trustee named in the deed of trust “neglects or refuses” (Italics ours.) The court held that the trustee named who had died had neither neglected nor refused, that a dead man was unable either to neglect or refuse, and that, therefore, death was not provided for. We decline to overrule that case, as is insisted by appellees should be done. But the doctrine of strict construction was extended by it far enough. We decline to go further. It is therefore a question of the application of that principle to the power here involved. The power of substitution in the present case, in our opinion, is clearly distinguishable, both in language and in substance, from the power involved in that case. In this case it is provided that if the trustee named in the deed of trust should “fail or refuse” (italics ours) “to act as such when thereto requested,” the holder of the note secured should have the right to substitute another trustee. We think this is broader than the power involved in the Guión case, supra. “Fail or refuse” is more comprehensive than “neglect or refuse.” It cannot be said that one who is dead neglects or refuses to act. He cannot refuse, and we think it equally clear that he cannot neglect to act, because each of those words carries with it the idea of a living person able to act, but either refusing or neglecting to act. While [520] the word “fail,” used in the power involved in this case, does not necessarily carry with it the idea that the person who fails is living, “fail” has a very broad meaning. One who is dead has certainly failed so far as doing the things of this life are concerned. , In the argument for the appellee stress is laid on the language in the power “when thereto requested.” It is said that a dead man cannot be requested; and that of course is true, but a vain and useless thing is never required. The other cases in this state relied on by the appellant (McNeill v. Lee, 79 Miss. 455, 30 So. 821 ; Clark v. Wilson, 53 Miss. 128, and Ready v. Hamm, 46 Miss. 422) merely reaffirm the principle of strict construction laid down in Guion v. Pickett, supra. The power of substitution involved in neither of those cases was anything like the power involved in the present case. We therefore conclude that the substitution in this case was authorized. The facts with reference to the other question whether the sale is void on account of the manner of its advertisement are as follows: The substituted trustee, Magruder, first advertised the sale to take place on the 5th day of April, 1915, which appeared in two issues of a weekly netvspaper of the county, March 19th and March 26th. Before its appearance in the third issue it was discovered that if the sale took place on the day advertised, the 5th of April, there would result a failure to comply with the statute (section 2772, Code of 1906; section 2276, Hemingway’s Code), in that the land would not have been advertised for three consecutive weeks preceding the sale. The trustee then had the day of sale changed in the advertisement to May 5,1915, and it so appeared in the newspaper in the issues of April 2d, 9th, 16th, 23d, and 30th, five in all; therefore it was advertised more than four weeks next pi*eceding the day of sale; and less than one week elapsed between the last issue of the paper in which said advertisement appeared and the day of sale. It is contended that because the statute required the sale to be [521] advertised three consecutive weeks preceding the day of sale that advertising for a longer time was unauthorized and void. We are unable to see the force of this reasoning. It is inconceivable how any harm could have resulted from .advertising the land for a longer time than was required, while it is easy to understand how harm might result by advertising for a shorter time than the law requires. And it is argued that the change of the date of the sale under the circumstances mentioned was calculated to mislead prospective bidders. We think not. If any prospective bidder had read either one or both of the issues of the paper advertising the sale for the 5th of April it might have resulted in such prospective bidder attending, at such place and time. And on so appearing and finding that the sale did not take place, he would have been put on inquiry, which Avould have unerringly resulted, if pursued, in his ascertaining the postponed date of the sale., We do not see how either the grantor in the trust deed, or prospective bidders, or others interested, could have been, misled by this change in the advertisement. Affirmed.,