Day v. Hogans

Smith, C. J., delivered the opinion of the court. This is an appeal from a decree sustaining a demurrer to and dismissing an original bill. As we understand the allegations of the bill, it appears therefrom in substance that in September, 1917, Mrs. M. M. Coleman conveyed certain land to H. C. Flint on which Flint then executed to her a deed of trust to secure the payment of two promissory notes executed by Flint to Mrs. Coleman, one for five hundred dollars due February 1, 1918', and one for eleven thousand seven hundred and fifty dollars due September 1, 1922, each bearing interest at the rate of six per cent, per annum from January 1, 1918. This deed of trust provides that: [135] “It is further agreed and understood by and between the parties hereto that the interest on the above notes shall be payable annually on the 1st day of September, and that should said grantor fail to pay said interest annually when due, or fail to pay any of said notes when same mature, or fail to promptly pay for said timber that may be cut as provided above, all of said indebtedness shall mature and become payable at the option of the said M. M. Coleman, her heirs or assigns or the holder of said notes.” The land described in these two instruments was after-wards conveyed by Flint to the appellant, reconveyed by the appellant to Flint by a deed in which the pine timber growing thereon was excepted, and then by Flint to Hogans by a deed containing the same exception as to the pine timber. All of these deeds subsequent to the Coleman deed of trust conveyed the land subject to the lien of that instrument, but in none of them did the grantees therein assume the payment of the debt secured by the deed of trust. The interest on the deed secured by the Coleman deed of trust was not paid when the same became due under the provisions thereof, and some time thereafter Mrs. Coleman, at the request of Hogans and without formal declaration or notice to the parties in interest of her intention so to do, had the trustee in the deed of trust to sell the land in accordance with its provisions, at which sale Hogans purchased the land for fourteen thousand dollars and thereafter executed to Mrs. Coleman a deed of trust on it. to secure an indebtedness to her of ten thousand dollars. The appellant appeared at the trustee’s sale and made several bids on the land, each being less than that at which it was sold to Hogans. The description of the land is not identical in all these deeds, but it may be that this is the result of a mere clerical error in the making of the record, and no -point thereon is made by either party. The prayer of the bill is that Hogans’s claim to the pine timber by virtue of his purchase of the land at the trustee’s sale and of Mrs. Coleman to a lien thereon by virtue of the deed of trust executed to her by Hogans be canceled. The bill [136] seems to contain an offer on the part of the appellant to pay the appellees such portion of the debt secured by the deed of trust from Flint to Mrs. Coleman as should have been paid by him in order to release the pine timber from the lien thereof. The contentions of the appellant are, in effect: First, that the sale under the Coleman deed of trust is void for the reason that Mrs. C'oleman did not formally declare the debt thereby secured to be due before the proceedihgs were begun by the trustee for the sale of the land; second, the purchase of the land by Hogans inured to both his and the appellant’s benefit; and, third, that the foreclosure of the deed of trust was the result of collusion between Mrs. Coleman and Hogans. The deed of trust does not require any formal declaration or notice by Mrs. Coleman of her intention to exercise the option therein given of collecting the whole debt on the failure of the debtor to pay the interest thereon when due;, consequently she was tinder no duty to make such declaration or to give such notice before foreclosing the deed of trust. 8 C. J. 417. The relation between the appellant and Hogans with reference to the land and the pine timber thereon was not that of tenants in common. Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540; Forest Product & Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279. Each owned his property in severalty and occupied the same relation to each other as they would have had each purchased different portions of the land covered by the Coleman deed of trust, and, while each had certain rights as against the other with reference to the discharge of the deed of trust in so far as it affected his property (27 Cyc. 1365), neither was under the obligation to protect the property of the other nor prohibited from purchasing at the sale under the deed of trust. Hogans was under no duty to the appellant to pay the Coleman deed of trust. The mere fact that he requested Mrs. Coleman to foreclose it violated no right of the appel [137] lant who not only had full knowledge thereof, but was present in person when the trustee made the sale. The bill contains an alternative prayer to the effect that, if the appellant is “not entitled to the timber, the defendant will be required to pay him the sum the land brought at trustee’s sale above the debt.” The appellee is, of course, not entitled to recover from Hogans the entire excess of his bid for the land above the debt secured by the deed of trust. It may be, as to which we, express no opinion, that he would be entitled to recover the proportion of such excess which should have been paid to him because of his ownership of the timber, but the bill contains no allegations presenting that question for decision, and no such claim is made in the brief of the appellant’s counsel. Affirmed.