Williams v. Dreyfus

Mississippi Supreme Court
Williams v. Dreyfus, 79 Miss. 245 (Miss. 1901)
Calhoon

Williams v. Dreyfus

Opinion of the Court

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, *250endangered 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.

Reference

Full Case Name
Green Williams et at. v. Solomon Dreyfus
Cited By
4 cases
Status
Published
Syllabus
1. Deed of Trust. Trustee’s sale. Code 1892, ? 2484. Place of sale. A deed of trust authorizing’ the trustee to sell the property conveyed for cash, at public auction, “at Jackson or any suitable place,” after giving thirty days’ notice of the time, place and terms of sale by posting written notices in three public places in the county, is not silent as to the terms, place of sale and mode of advertising, within the meaning of code 1892, $ 2484, providing that, in cases where deeds of trust are silent in these particulars, sales under them shall be made as sheriff’s sales of like property are required to be made. 2. Same. Possession of'trustee. Demand. It is not a prerequisite to a valid sale under a deed of trust that the trustee should either take or demand possession of the property, although the deed provides that, if default be made, the trustee shall take possession and sell, and, further, that, if he, at any time, believes the property endangered as security, he shall take possession and hold until payment is made or until sold, but, until demanded by the trustee, the grantor may retain possession.