Smith v. Beard , 128 Miss. 1 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

The appellants, complainants below, seek by their bill to redeem certain lands sold to the appellee, Mrs. Beard, by the trustee, her husband, at a sale of the lands duly advertised and sold in accordance with the terms of the deed of trust. The grantors in this deed of trust were Mr. and Mrs. Dashiell. The trustee was Mr. Beard, the husband of the beneficiary, Mrs. M. A. Beard. Default having been made in the payment of the indebtedness, at the request of the beneficiary the trustee duly advertised the lands for sale and the -beneficiary, Mrs. Beard, being the highest bidder,- purchased them for six thousand, five hundred dollars. From the testimony in the case the chancellor was amply justified in believing that the lands brought a fair price. There is also no question but what the grantors at the time the loan was negotiated knew and understood they were to borrow this money from Mrs. Beard, and as a matter of fact it was Mrs. Beard’s money they borrowed. While there are numerous assignments of error, there is only one which calls for a written opinion.

It is the contention of the appellants that, since the trustee, Mr. Beard, could not have purchased this land at his sale, for that reason his wife could not purchase and the sale is voidable. They rely, among others, on the case of Houston v. Building & Loan Association, 80 Miss. 31, 31 So. 540, 92 Am. St. Rep. 565, and 81 Miss. 386, 32 So. 911, which case holds that a mortgagee cannot, at his own foreclosure sale, under a power contained in the mortgage, purchase the mortgaged property, either directly or indirectly, unless the mortgage confers such right or the mortgagor consents to the purchase, and the sale may be avoided by the mortgagor or his assigns without proof of fraud or unfairness therein. And they also rely on certain authorities, among others 13 R. C. L., section 395, p. 1353, announcing the proposition that:

“The principle which renders an agent incompetent to-purchase from himself renders him alike incompetent to sell to his wife.”

These authorities are inapplicable in this case. The parties to the deed of trust were all sui juris. They solemnly agreed to the arrangement whereby the grantors borrowed this money from Mrs. Beard, made her husband the trustee in the deed of trust, and by its terms expressly authorized him to sell this property, under certain conditions, to the highest bidder for cash. Of course, the beneficiary in a deed of trust of this kind has a right to bid at this sale. In fact, it is a very valuable right, whereby he may protect himself by buying in the property and preventing it from being sacrificed for at least less than the value of his indebtedness if he so desires. Though in this instance the beneficiary is the wife of the trustee, she is still the beneficiary in the deed of trust, and is vitally in-tally interested in protecting her interest at the sale. By this form of a deed of trust no discretionary powers are vested in the trustee. It becomes his duty to advertise and sell the property when so requested in accordance with the terms of the deed of trust and to sell to the highest bidder for cash. In such a deed of trust, certainly where the wife is the beneficiary, the reasons why the wife of a trustee cannot buy in the property at his sale do not apply.

It is further contended that by agreement of the parties the trustee’s deed to Mrs. Beard was really a mortgage. The testimony on this proposition, briefly stated, }s to the effect that after the sale, and before the trustee’s deed was executed, Mr. Beard told the grantors that what his wife really wanted was her money, and that if they would pay this amount of money within ninety days that his wife would sell the property back to the grantors. This is almost an everyday occurrence, and is nothing more than an offer to resell the property within a reasonable time.

The chancellor was correct in dismissing the bill, and his decree is affinmed.

Affirmed.