Smith v. Walsh
Smith v. Walsh
Opinion of the Court
delivered the opinion of the court.
We are unwilling to disturb the judgment of the lower court in granting a new trial upon the first verdict. The rule that the action of the trial court upon a motion for a new trial is to be favorably considered upon appeal, and supported unless manifest error appears, is peculiarly applicable where the new trial has been granted, since in such cases the rights of the parties are not
There is no error in the record of the second trial, nor is the question whether by an equitable estoppel the legal title to land can pass presented. The question was involved in the first trial, but the jury found as a fact that the defendant was not estopped, and the court set aside the verdict because of newly discovered testimony which would show existence of the legal title in the plaintiff by proper conveyances.
Whether Smith was indebted to McCutchen & Co., and whether there had been a re-advertisement of the sale, were rendered immaterial by his acts in soliciting Walsh to appear at the sale and buy in the property at the price of three hundred dollars, which McCutchen & Co. claimed to be due to them. Smith’s request to Walsh was equivalent to a declaration by him that the sum claimed was due and that the acts in pais required to be done by the trustee had been performed. The advertisement of the sale was required for the benefit of Smith, and it might be waived by him without rendering the sale obnoxious to the statute of frauds. There appears in the record a complete chain of the legal title to the land, and this being the case, it is immaterial that the doing of other acts not required to be done by the statute of frauds was waived by Smith.
The. judgment is affirmed.
Reference
- Full Case Name
- John Smith v. David Walsh
- Cited By
- 13 cases
- Status
- Published
- Syllabus
- 1. New Tbiae. Granted by trial judge. How viewed by this court. The rule that the action of a trial court upon a motion for a new trial will be considered favorably and sustained by this court, unless manifest error appears therein, is peculiarly applicable where the trial is granted, since the rights of the parties are not finally settled as they are where a new trial is refused. Dorr y. Watson, 28 Miss. 383, cited. 2. Deed oe Tbtist. Objections to sale wider. Waived by grantor. Case in judgment. S., the grantor in a deed of trust upon a tract of land, induced W., a third person, to attend on a certain day a sale of the land under the deed of trust and buy in the land, it being agreed that S. should have an opportunity to redeem the land by paying W. whatever amount he should have to pay for the same. W. did attend the sale and buy the land, paying therefor the amount claimed by the beneficiary in the trust-deed. S., having failed for many years to pay W. and redeem the land, and being sued in ejectment for the land, sought to defeat the action by showing that he did not owe anything upon the deed of trust under which the land was sold, and that the sale was not properly advertised. Held, that such objections were rendered immaterial by*the act of S. in soliciting W. to appear at the sale and buy in the land, which was equivalent to a declaration that the sum claimed by the beneficiary in the trust-deed was due, and that all acts in pais required to be done by the trustee had been performed.