Williams v. Dreyfus

CalhooN, J.,

delivered the opinion of the court.

The trust deed provides that, ‘£ if default is made in payment, the trustee shall take possession of said property, and, having given thirty days’ notice of the time, place and terms of sale, by posting, ’ ’ etc., ‘ ‘ sell said property for cash at public auction at Jackson or any suitable place.” We conclude, and so hold, that the instrument is not 1 ‘ silent as to the place and terms of sale and mode of advertising, ’ ’ and that, therefore, code 1892, § 2484, providing that, in case of such silence, the sale shall be upon the notice and at the time and place of sheriff’s sales, does not apply. We think that, under its terms, the deed necessarily gives the power to the trustee to determine these details of the execution of the trust.

The second clause of the instrument having relation to the performance of the trust is as follows: “And should the trustee, at any time, believe said property, or any part thereof, endangered as security for said payments, he shall take the same in his possession and hold till said payments are made, or till said property is sold as aforesaid; but, until demanded by the trustee for either of the purposes as aforesaid, said parties of the first part may hold the same.”

Construing the powers granted in this instrument in the two clauses set forth, it was not a prerequisite to a valid sale that the trustee should demand possession or take possession of the land. To hold otherwise would do violence to the reasoning and conclusion of this court in the cases of Tyler v. Herring, 67 Miss., 169, s.c. 6 So. Rep., 840; 19 Am. St. Rep., 263; Vaughn v. Powell, 65 Miss., 401, 4 So. Rep., 257; Hamilton v. Halpin, 68 Miss., 99, 8 So. Rep., 739.

Affirmed.