Maulsby v. Barker

;Mr. Justice James,,

after' stating tbe case, delivered the opinion of the court.

It is contended that the advertisement of the projDOsed sale should have followed the provisions of the deed of trust for the original advertisement,-.namely,-for three weeks, three times a week, whereas it. was published only from the 24th of March to the 9th of April, and consequently the sale having been made without following the provisions of the trust, it was absolutely void and gave no title whereon to support an action of ejectment by the purchaser. A number 'of authorities were cited by defendant’s counsel, to the effect that where the power prescribed in the deed of trust is. not followed, the sale is void.

We do not regard that point as material in this case, and there is, therefore, no necessity to decide it, for, whatever may be, the law in that respect, we have given weight to a circumstance which takes the case out of that discussion. It appears from the testimony, which is very brief, that the defendant, when the property'was about to be sold, called Upon one of the trustees, and informed him that he would be able to settle the matter by the 9th of April.

All the evidence offered in the case is set out in the bill of exceptions, and we are, therefore, authorized to treat it as a case stated. We think that, upon the whole case, the suggestion of the defendant was that the trustees should wait until the 9th of April; and then if he did not make the provision for the debt which he hoped to do, the sale should take place on that day. Clearly, where the owner of the property agrees that' the advertisement may be for a shorter period than that expressed in the deed, he is estopped from setting up the objection that the provision made in the deed 'as to advertising was not followed.

His defence is an equitable one, which he is allowed to make in an action of ejectment, although the plaintiff must 'show a legal title. But he has no equitable defence against the plaintiff’s taking possession, if he himself authorized the trustees to postpone the sale less than three weeks, and to advertise accordingly. The judgment must therefore be affirmed.