Corder v. Whitesides

Counsel

J.S. Finch, of Booneville, for appellant. The court erred in confirming the sale made under a void notice. The notice published to the public, advising that the lands of appellants would be sold on the day and date therein stated, is void upon its face. Although a portion of the lands are properly described in said notice, the lands, as shown by the survey, are contiguous, and all tracts together make up the 80 acres which were held by the Chancellor to be the lands intended to be conveyed by appellants in their trust deed to appellees. It will be seen that the four acre tract described in the notice is a void description, which description is as follows: "All of the SW 1/4 of the SW 1/4 of Section 323, Township 7, Range 7 East, which lies east of the Baldwyn and Ratliff Road and being about 4 acres." The above is an impossible description and does not advise appellants and/or the public what lands are to be sold. 19 R.C.L., sec. 415. The authorities are practically all of one accord that the property to be sold must be described in the notice with such a reasonable degree of certainty that the public, by the exercise of ordinary intelligence, may be enabled to identify it, may be directed to the means of obtaining an exact description, if desired. If the notice contains no description at all it is fatally defective, and a sale thereunder is likewise void. 41 C.J., sec. 1391; Yellowley v. Beardsley, 24 So. 973, 76 Miss. 613 , 71 A.S.R. 536. The purpose of the notice is not only to notify the mortgagor, but the public as well, in order that the property may bring a fair price. Yellowley v. Beardsley, 24 So. 973, 76 Miss. 613 ; Wilkinson v. Federal Land Bank of New Orleans, 151 So. 761, 168 Miss. 645 . When notice of sale by publication does not describe the land sought to be sold, a sale upon such notice is void. Hesdorffer v. Welsh, 90 So. 3, 127 Miss. 261 . It will be recalled from the record in the case at bar that the land herein sold was in three separate tracts. However, it further appears from the record that it was sold in a block and no separate bids made on each tract. In such a case where there is a void description as to one of the tracts and no separate bid for the other tracts and the land is sold as a unit, then the entire sale is void. Hesdorffer v. Welsh, 90 So. 3, 127 Miss. 261 . The court erred in issuing the writ of assistance, and commanding the sheriff to remove appellants from their lands pursuant to the confirmation of sale. Certainly it will not be argued or contended by appellees that should the court hold the sale of the lands here in controversy to be null and void, the writ of assistance putting appellants out of possession and appellees in possession of the lands here in question is a proper and legal proceeding. C.R. Bolton, of Tupelo, for appellee. It is argued that the court erred in confirming the sale of the land in question because the notice of sale was void. This argument is predicated on a printer's error in the description of four (4) acres wherein the publication of notice recites this to be all of the SW 1/4 of the SW 1/4 of Section 323, Township 7, Range 7 East which lies East of the Baldwyn and Ratliff road and being about four (4) acres. The report of sale by the trustee properly describes this land as being in Section 32 instead of Section 323 and the only way in which it can be learned from the record that there was reference to the land as being in Section 323 is by reference to the proof of publication in the newspaper which is attached as an exhibit to the report of the trustee. The report further states that the trustee posted notice of sale on the bulletin board at the court house by the description recited in the report of sale which is SW 1/4 of SW 1/4 of Section 32. This report must be taken from the record to be correct and, therefore, the trustee advertised the property by notice on the bulletin board by the correct description. There remains only the question of whether or not the error of the printer was sufficient to make this a void sale. We disagree with the argument of counsel for appellant that this notice as published could have been taken by the public to have meant that the four (4) acres was in either Section 2, 3, 23 or 32. We assert that no reasonable person could have understood this land to be in any other than Section 32. Any interested person would have certainly concluded that this land was all in the SW 1/4 of Section 32. If there were any doubt in his mind as to what land was intended to be sold, reference could have been made to the notice posted in the court house which was as much a part of the publication as that in the newspaper and also to the decree of the court directing the sale to be made, to which reference was made in the notice of sale by the trustee and in which notice was given that the sale would be for confirmation before the Chancellor on the date and time set out in the notice of sale. With all these means of information at hand, only he who would not learn could remain uninformed as to the land which was to be sold, if any doubt arose in his mind thereof. All of this clearly fits the rule announced in the case of Yellowly v. Beardsley, 76 Miss. 613 , 24 So. 973. All of the authorities cited by appellant on the question of error in description, refer to sales in pais by trustee and not sales under foreclosure by action. The rule is much more strict as to description when there is foreclosure under power given in the deed of trust without resorting to a court of equity, and this is the rule undertaken to be applied by appellant. We think we have conformed even to this rule. The requirements for sale under decree of court are not so technical and certainly have been complied with in the notice given by the trustee. 19 R.C.L., sec. 382. Our court has recognized the difference between sales under order of court and sales under power given in the deed of trust and has held that even though the notice given under decree ordering sale be irregular, the sale made is not affected thereby. Hanks v. Neal, 44 Miss. 212 ; Jones v. Spearman, 165 So. 294 . We respectfully submit to the court that all reasonable notices of this sale was given and any one really interested had sufficient means of notice of everything connected with the sale. The mortgagor certainly had notice of it because he was in court and was charged with notice of the decrees and everything that was recited therein, and he was, by the terms of the decree, retained in court for the hearing of the report and the confirmation at a fixed time and place. While we think sufficient notice was given of the sale and everything connected therewith, yet appellant is in no position to make any complaint relative thereto. He had his day in court and it was his privilege and duty to object to the confirmation of the sale on the date set for confirmation, if there were any irregularity connected therewith, and failing to point out to the court anything wrong with the sale or make any objection to the confirmation, he cannot for the first time in this court object to the action of the court below in confirming the sale as reported. The court entered decree on December 18, 1937, the date fixed for confirmation, confirming the sale by the description by which it was ordered to be sold in the decree for sale and by the description by which report of sale was made by the trustee. If there were error in the description in the newspaper advertisement, and if such were sufficient error to prevent its confirmation on proper objection, it was an error which could be waived and the appellant would be held to have waived it by failing to make his objection. The only other assignment of error is that the court granted an order for writ of assistance to remove the appellant from the land after the sale had been made, reported by the trustee, and confirmed and the purchaser reported to the court that the appellant was still holding possession of the land. The decree which was entered on August 7th, by agreement of appellant recited that in consideration of further extension of time to give the appellant an opportunity to make payment of his debt which was many years past due, that if appellant did not make the payment by the time stipulated, that the land should be sold and that he was to surrender possession of the property, and if this was not done the court would issue process to remove him. The court had power to issue this writ without such agreement but it does not lie in appellant's mouth to object to such power when he had theretofore agreed that it should be done.