Yellowly v. Beardsley , 76 Miss. 613 ( 1898 )

Whitfield, J.,

delivered the opinion of the court.

The notice of the sale in this case does not describe the land to be sold otherwise than by reference to the pages of the record where the trust deed was recorded. Counsel for appellant cite 2 Ping. Chat. Mort., p. 1253, sec. 1347, note 4, to show that this is sufficient. The case cited is Fitzpatrick v. Fitzpatrick, 6 R. I., 64. That volume is not in our library, but we have found the ease in 75 Am. Dec., 681, where we also find, at page 701, the case of Hoffman v. Anthony, 6 R. I., 282, with note. In Fitzpatrick v. Fitzpatrick, not only was there a reference to a recorded plat, but the lot is also particularly described in the notice. In Hoffman v. Anthony, “the lots of land were sufficiently described in the advertisement, ’ ’ and the court held the notice void because it was not! ‘ signed by anybody, and did not name the mortgagor or mortgagee,” and made improper reference to the record. In the note to this case (at page 706, 75 Am. Dec.), the case of Candee v. Burke, 1 Hun, 546, is referred to as holding the doctrine contended for by appellant. But the point in that case was whether the notice was void because it omitted the name of the mortgagee, under a statute of New York, and it is said: ‘‘The mortgage was in all other respects correctly described. ’ ’ And the court puts the decision not on that ground even, but (pages 549 and 550) on the ground that the purchaser was not a party to the suit. This case cites Judd v. O'Brien, 21 N. Y., 186, for support, but in this case the property was described in the notice as “being in the village of Penn Yan, in the county of Yates, known and designated as ‘ Canal Lot Number Seventeen.’ ” In Bacon v. Insurance Co., 131 U. S., 258 (9 Sup. Ct., 787), the contention was simply as to the effect of the misspelling of the mortgagee’s name in a notice, under the statutes of Michigan. And in Wilson v. Page, 76 Me., 279, the notice particularly describes the land. It will thus be seen that none of the authorities relied on by appellant sustain the proposition that, independently of any statute, a mere reference, in a notice of sale in a trust deed, to the page of the record for description of the premises to .be sold, without more, not naming grantor or grantee, and signed by a substituted trustee, is a sufficient description of the land to be sold. On the contrary, the precise question was adjudicated the other way in Reeside v. Peter, 33 Md., 120. The court said: “The authority by which the property is sold, a description thereof full enough to be understood by the public, its popular name, if any, its proximity to other known property, the name of the occupant at the time, or any other prominent characteristics, may all or either afford means of informing the public and others concerned of the identity of the premises. This notice does not state even from or to whom was the deed of trust, but merely refers to the book, among the land records of the county, where that maybe found.” And the sale was held void.

The same rule is approved in Mr. Freeman’s splendid note to Tyler v. Herring, 67 Miss., 169 (19 Am. St. Rep., at p. 288), s.c. 6 South., 840. He says: “ Manifestly.the objects to be accomplished by a notice of sale are to advise the public of what is to be sold, and the time when, and the place where, and the terms upon which it may be bought; and the essentials of a notice of sale under a trust deed are, therefore, a statement of the time, place, and terms of sale, and such a description of the property to be sold as, if read by persons familiar with the neighborhood, will advise them of what is to be sold, and upon what terms it can be bought, and induce them to attend the sale as prospective bidders, should they feel an inclination to invest in the property to be sold. ’ ’ And he concludes by saying that, ‘‘ under ordinary circumstances, it is indispensable in a notice of sale to set forth the time and the place of sale, and a correct description of the property.” The purpose of notice is not only to notify mortgagor, but the public, that the property may bring a fair price. 2 Berry on Trusts, secs. 608o-608r/ 26 Am. & Eng. Ene. L., pp. 901, 902; note to Warren v. Tiffany, 9 Abb. Prac., 66.

We think it clear that the notice was wholly insufficient, and the sale void. Many reasons readily occur to the legal mind why such a description, by reference only, will not do. It would open the door wide to the grossest frauds. But it is said the defect in the notice was not pleaded specifically in the answer. This is true, but is immaterial, as the decree must be reversed on another ground. On the remanding of the case, the chancery court should allow the defendants, upon request to that end, to amend their answer, so as to set up specifically insufficiency of the notice.

It is said the subsequent mortgagee has no right to make the defense of no notice, and such gross inadequacy of consideration as to amount to fraud in the sale. But if, as held in Yates v. Mead, 68 Miss., 787, “in a controversy between junior lienor and senior mortgagee, who has taken the mortgaged property under an absolute conveyance in satisfaction of his mortgage debt, the burden of proof is on the latter to show that such debt was equal to the value of the property taken, and that, the equity of redemption being worthless, no harm resulted to the junior lienholder,” then surely the subsequent mortgagee has an equity to insist that the sale shall not be so managed as fraudulently to sacrifice the property to which he also looks for payment of his debt. But he who seeks equity must do equity, and the amount bid by the complainant (a minor at the time), $105, with six per cent, interest thereon from the day of sale, should be required to be refunded as a condition of annulling the .sale.

For refusing to allow this, the decree must be reversed and the cause remanded for proceedings in accordance with this opinion.