Fred B. Smith, of Ripley, and Marvin Crawford, of New Albany, for appellant.
Did the deed of trust executed by Mrs. McClellan to W.I. Hancock sufficiently describe the land conveyed to sustain a valid foreclosure thereof, so far as she is concerned?
The courts have clearly and definitely established the fact that an exception in a deed is to be construed strictly against the grantor, and if anything fails, the exception will fail and not the grant. Ambiguity, uncertainty, or irregularity in the description of land, excepted from a conveyance does not make the conveyance void for uncertainty. When there is a definite description in a deed, followed by an exception which is uncertain or erroneous, the exception fails but the description stands. In other words, if the whole tract of land is correctly described in a deed, and an exception is made thereto, which is improperly described, it is the exception only that fails and not the grant, as between the parties the title to all of the land passes from the grantor to the grantee, and the grantee and not the grantor derives the benefit. After all, the office of the description of an exception is not to identify the land, because it is not being conveyed, but it is merely for the purpose of furnishing the means for identification, and the failure to properly identify the land excepted does not make the deed inoperative as to the land described. These principles are definitely established, as will be seen from the citations hereinafter set forth.
We think we can rest our case on this point by the citation of one Mississippi authority, as it is one of the leading, if not the leading, case in America on the question and it has been cited and quoted as an authority throughout the length and breadth of the land, and that is the case of McAllister v. Honea, 71 Miss. 256 . We believe that this case settles conclusively this question,
but to establish the fact that it is the true and correct holding of the courts of the land we likewise mention other authorities. See 18 C.J. 384; Southern Iron and Steel Company v. Stowers (Ala.), 66 So. 678; Shell Petroleum Corporation v. Ward, 100 Fed. (2d Series) 778 (Fifth Circuit); Smith v. Blinn (Ala.), 127 So. 156; 16 Am. Jur., section 315; 16 Am. Jur. 319; Lang v. Waters, 156 Calif. 142, 19 Ann. Cas. 1208; Conner v. Anderson (Ind.), 8 N.E. (2d Series) 422.
On this point, in the lower court, the appellee relied entirely on the case of Hesdorffer v. Welsh, 90 So. 3. In that case there were three questions, on which the lower court decided the issue. We are interested solely in the third question; briefly stated, the facts are these, the mortgagor owned the east half of the southeast quarter of the southwest quarter of Section 35. He executed a mortgage conveying the east half of the southeast quarter of the southeast quarter of Section 35. This error was later discovered, the land was readvertised, and they sold then the east half of the southeast quarter of the southwest quarter of Section 35, without having the trust deed reformed or corrected, and at this latter sale the property only brought $100, which price was held by the court to be grossly inadequate. Its occurs to us that a mere statement of the facts clearly reveals that that case does not remotely touch the question involved in this litigation. There was no proposition there of an erroneous description of an exception, in fact, there was no exception from the deed at all.
Therefore, we respectfully submit that the law, applicable to this case, is not that which applies to an erroneous description of property sought to be conveyed but is that which applies where there is merely an error in the description of an exception, which, being true, the appellee can not take advantage of an erroneous description of the exception, and as to her, the deed of trust was not void, as claimed in her petition.
Was the notice of Trustee's sale sufficient to legally sustain foreclosure?
They contended that because of the description contained in the advertisement that the advertisement was void, and the property was misdescribed.
The same rule as hereinbefore set forth would have application here, in that, if there was a misdescription of the property in the notice, it was a misdescription of the exception and not of the property conveyed. In truth and in fact, the ten and half acres sought to be excepted is alleged to have been in the northwest quarter of the northeast quarter of Section 17, while the notice of trustee's sale states that it was in the northeast corner. The same rule, as hereinbefore outlined, relative to an error in the description of the exception, would likewise have application to an error in the description of the notice of sale. However, we respectfully submit that land does not have to be accurately described in the notice of the sale. There is no statute which directs or provides that the notice shall give an accurate description, according to metes and bounds, or legal subdivision, of the property to be sold, and so far as we have been able to discover there is no decision of our court which so requires. The only object of the notice is to call attention to the fact that the property of certain persons is to be sold, and if the advertisement is sufficient in a general way to put interested parties on notice, and call attention to the fact that a certain farm is to be sold, this meets every legal requirement. The only requirement of the statute is that found in Section 2167 of the Mississippi Code of 1930. The statutory requirement is as to the manner of the publication and posting of the notice, and that it shall disclose the name of the mortgagor or mortgagors, and the only requirements of the deed of trust itself are that the notice shall give the time, place, and terms of the sale.
See 41 C.J., pages 951 and 952, Section 1391; Yellowly v. Beardsley, 76 Miss. 613 ; Nichols v. Nichols (Ala.),
68 So. 187; Redus v. Easterling, 110 So. 769 ; Weyburn v. Watkins, 90 Miss. 733 ; Blunt v. Basnight, 183 S.E. 405 , 209 N.C. 268 .
As heretofore stated, the object of the advertisement is to apprise the public that the sale will take place, and in general terms notify them of the thing to be sold. This rule is set out in 19 R.C.L. 598, section 413.
Is any claim that Mrs. McClellan might have barred by her failure to probate same?
The appellees say that she was not required to probate the claim because it was one for tort which did not lie in contract. The relation of landlord and tenant is a contractual relation, either expressed or implied, and where a person permits another to occupy land, without any objection, as was done in this case, Mr. Hancock, and his grantees, occupying the land for more than four years, before any objection whatever was made, the relation of landlord and tenant will be implied. Hamilton v. Federal Land Bank, 167 So. 643; 35 C.J. 957.
The only difference between an expressed contract and an implied contract is the fact that in the former the parties arrive at their agreement by words, either oral or written, and in the latter their agreement is arrived at by a consideration of their actions and conduct, a contract existing between the parties in either event, the only difference being in the character of evidence necessary to establish the contract. 12 Am. Jur. 449; 12 Am. Jur. 502; First National Bank v. Matlock, 99 Okla. 150 , 226 P. 328; 13 C.J. 244.
In the event the sale was not good, then the relation of landlord and tenant existed between Hancock and Mrs. McClellan by implication and her claim would grow out of an implied contract, which would require probate under the statute within six months to prevent it from being barred.
Smallwood Darden, of Oxford, for appellee, Mrs. Thella McClellan.
Our complaint as to the foreclosure of the land involved here is not that the original deed of trust was void and that it could not have been corrected had Mr. Hancock desired to go into the Chancery Court of Union County, Mississippi, to have the deed of trust reformed so as to reflect a description of the property actually owned by Mrs. McClellan. Our complaint is that he did not do this, but that in an effort to foreclose in pais, no valid foreclosure was made.
The deed of trust given by Mrs. McClellan to Hancock did not describe the land she owned. The Trustee in giving the notice of sale did not describe either the land that Mrs. McClellan owned, nor the land described in the original deed of trust. The Trustee's Deed did not convey to Mr. Hancock the land which Mrs. McClellan actually owned.
The requisites of a proper and suitable notice of sale under the power of sale given in a mortgage were enunciated by our court in the case of Yellowly v. Beardsley, 76 Miss. 613 , 24 So. 973. In Tyler v. Herring at page 288 of 19 Am. St. Rep., the court said: "`Manifestly, the objects to be accomplished by a notice of sale are to advise the public of what is to be sold, and the time when, and the place where, and the terms upon which, it may be bought; and the essentials of a notice of sale under a trust deed are therefore a statement of the time, place and terms of sale, and such a description of the property to be sold as, if read by persons familar with the neighborhood, will advise them of what is to be sold, and upon what terms it can be bought, and induce them to attend the sale as prospective bidders, should they feel an inclination to invest in the property to be sold.' And he concludes by saying that, `under ordinary circumstances, it is indispensable, in a notice of sale, to set forth the time and place of sale, and a correct description of the property.'
The purpose of notice is not only to notify mortgagor, but the public, that the property may bring a fair price. Perry, Trusts, sec. 608o, 608r; 26 Am. Eng. Enc. Law 901, 902; note to Warren v. Tiffany, 9 Abb. Prac. 66." That case is also authority for our position that where the notice of sale is insufficient, a foreclosure made under such notice is void.
The rule is stated in 19 R.C.L. 598; 19 R.C.L. 600; 41 C.J. 949; 41 C.J. 951.
In Hesdorffer v. Welsh, 127 Miss. 261 , 90 So. 3, a question was raised as to the validity of a foreclosure under a mortgage given on the E 1/2 of the SE 1/4 of the SE 1/4 of Section 35 and the NE 1/4 of the NW 1/4 of Section 2. In fact the mortgagor owned the E 1/2 of the SE 1/4 of the SW 1/4 of 35 and the NE 1/4 of the NW 1/4 of 2. The Trustee, in advertising, did not carry the description in the original deed of trust and when he made a deed under the foreclosure sale to the purchaser, he described the land as it was described in the deed of trust, but not the land which the mortgagor actually owned.
Under the most charitable view that we can take of Hancock's position, he was a tenant at will. Being a tenant, if he sold timber off of the lands, he committed waste, and is subject to an action for damages in the nature of trespass on the case. Board of Supervisors of Warren County v. Gans, 80 Miss. 76 , 31 So. 539. He was also liable to account for the rent he had received and collected on the property and the question of limitation and other matters in defense to Mrs. McClellan's claim for rent against the Hancocks are not properly triable in this cause at this time, as was decided by this court in the prior appeal of this case.
In the appellant's brief it occurs to this appellee that there are only two questions discussed which are of any importance in determining the issues in this case. The first is whether or not the deed of trust was void and the second is whether or not the foreclosure was void.
The appellant in his brief discussed at great length the case of McAllister v. Honea, 71 Miss. 256 , 14 So. 264.
Here there is no question of the validity or invalidity of an absolute conveyance of land by a deed made for a valuable consideration as there was in the McAllister case. Mrs. McClellan has not, and does not, claim that the mortgage given to Hancock is so defective on account of the error of description as to be void and utterly invalid. The question here is whether or not Mrs. McClellan has obtained the benefit of the rules in reference to the foreclosure of a mortgage which are essential to the validity of that foreclosure.
In the Honea case the exception was indefinite. In the instant case the exception is very definite but is erroneous. There is no question under the law about where the land is that was advertised in the notice of sale. The trustee advertised for sale the northeast quarter except 10 1/2 acres being at the Northeast corner. He thereby advertised all of 160 acres, 10 1/2 acres of which were owned by a third party not interested in the mortgage transaction, and excluded 10 1/2 acres owned by the mortgagor in the form of a square in the northeast corner of the mortgagor's tract.
Swan v. Mtg. Co., 75 Miss. 907 , 23 So. 627; W.C. Early Co. v. Long, 89 Miss. 285 , 42 So. 348.
In the notice of foreclosure, the exception described by the trustee in every particular and respect complies with the requirements as set out in the McAllister case as a good and valid exception. The only trouble with it is that it is an erroneous exception, and that erroneously there was land described for sale which the mortgagor did not own to the knowledge of those persons who were familar with the neighborhood.
Appellants confuse erroneousness of exception with indefiniteness of description.
To apply the McAllister case and say that the effect of it is to render the foreclosure sale valid is to say, in effect, that wherever land is described as a tract, less or except
a certain portion thereof which is also definitely and positively described, it makes no difference whether or not that which is definitely described as excepted is in truth and in fact a correct exception and whether in truth and in fact the property intended to be mortgaged and which was owned by the mortgagor, was actually described or not.
We respectfully submit that the rule laid down in McAllister v. Honea, supra, does not have that effect.
Hugh N. Clayton, of New Albany, for appellee, L.R. Pyle, Administrator.
Did the deed of trust executed by Mrs. McClellan to W.I. Hancock sufficiently describe the land conveyed to sustain a valid foreclosure thereof, so far as she is concerned?
The appellants in the authorities produced confuse erroneousness of exception with indefiniteness of description. They also confuse the rule that is applicable where a deed is given with that announced by the Supreme Court of our State as governing the foreclosure of a deed of trust.
The first case cited by the appellants is that of McAllister v. Honea, 71 Miss. 256 , 14 So. 264. This is a case in which a creditor of the grantor undertook to set aside a deed because of the ambiguity of the description of an exception to a larger tract conveyed in the deed. There was no question but that the grantor, Mrs. Burkett, owed the grantee, Mrs. McAllister, a sum of money and it was not maintained that the value of the land conveyed by Mrs. Burkett exceeded the sum she owed Mrs. McAllister. This court held that the deed was not void although the exception of 6 acres from an 80 acre tract was indefinitely described saying "the ambiguity of description relates not to the land conveyed but to the 6 acres excepted."
There is no question here of the validity per se of an absolute conveyance of land by a deed made for a valuable
consideration as there was in the McAllister case. Mrs. McClellan has not and does not claim that the mortgage is so defective on account of the error of description to be utterly void. She maintains, and in this the Administrator concurs, that the attempted foreclosure of the deed of trust was invalid as will be discussed subsequently in this brief by virtue of the authority of Hesdorffer v. Welsh, 127 Miss. 261 , 90 So. 3.
The next citation of appellants is from 18 C.J. 384, where the rule quoted deals with ambiguities of exceptions in deeds. This is not the question in the present case. Likewise, the case of Southern Iron Steel Company v. Stowers (Ala.), 66 So. 678, deals with a vague and uncertain description of an exception in a deed. To the same effect are the cases of Shell Petroleum Corporation v. Ward, 100 F.2d 778 ; Smith v. Blinn (Ala.), 127 So. 156; 16 Am. Jur. 315 and 319; Lang v. Waters, 156 Calif. 142, 19 Ann. Cas. 1208; and Conner v. Anderson (Ind.), 8 N.E.2d 422 .
We, therefore, respectfully submit that the rule with reference to ambiguity and uncertainty of exceptions in deeds wherein the exception attempts to apply to a larger tract is not applicable in determining whether or not, under the decision of the Mississippi Supreme Court, W.I. Hancock foreclosed the deed of trust he held in such a manner as to make himself the owner of the land owned by Mrs. McClellan so as to prevent her from becoming a creditor of his estate because of his entry and possession upon said land and the cutting of timber therefrom.
Was the notice of trustee's sale sufficient to legally sustain foreclosure?
The first citation of authority other than Section 2167 of the 1930 Code of Mississippi dealing with foreclosures under deeds of trust and the provisions in the deed of trust itself relative thereto, which statute and provision certainly do govern in this case, is 41 C.J., section 1391. We do not question the accuracy or correctness of the rule quoted and it is of interest to note that the Editors
of Corpus Juris have cited in support of their statement of the rule contained in said Section 1391, the cases of Hesdorffer v. Welsh, 127 Miss. 261 , 90 So. 3, and Yellowly v. Beardsley, 76 Miss. 613 , 24 So. 973, on both of which cases the appellees rely in the instant case.
It is our position that the appellants improperly apply the rule stated in Section 1391 in the instant case. This rule from Corpus Juris requires that the property be described with such certainty that the public "by the exercise of ordinary intelligence" may be able to identify it. A person of ordinary intelligence would not purchase land sold by a trustee under foreclosure in pais without investigating the title. No reasonably prudent man would purchase property unless he had satisfied himself that he would get what he would buy.
The next case cited by the appellants is the case of Yellowly v. Beardsley, 76 Miss. 613 , 24 So. 973. In like manner, we do not object to the correctness of the rule quoted from the Yellowly case. However, it is rather significant that the appellants failed to give the last part of the quotation which concludes in these words: "And he concludes by saying that, `under ordinary circumstances, it is indispensable, in a notice of sale, to set forth the time and the place of sale, and a correct description of the property.' The purpose of notice is not only to notify mortgagor, but the public, that the property may bring a fair price." It will be seen that the Yellowly Case requires, reading the complete quotation, "a correct description of the property." This was not given in the instant case.
Appellants cite Nichols v. Nichols (Ala.), 68 So. 187; Readus v. Easterling, 145 Miss. 13 , 110 So. 769 ; Weyburn v. Watkins, 90 Miss. 733 , 44 So. 145; Jones v. Frank, 85 So. 310; McCaughn v. Young, 85 Miss. 289 ; Graham v. Fetts, 53 Miss. 307 ; Blunt v. Basnight, 183 S.E. 405 , 209 N.C. 268 ; 19 R.C.L., section 413.
The authorities quoted by the appellants fall into two groups. The first group announces the general rule
governing the function of notices of foreclosure to which we do not object but deny that the notice in this case comes within the rules so announced. The second group consists of cases where the facts are not similar to the instant case and, therefore, do not sustain the legality per se of the notice of sale given by Isom Hancock, Trustee.
Is any claim that Mrs. McClellan might have barred by her failure to probate same?
With reference to the authorities cited, we do not disagree but say that they are inapplicable. The case of Hamilton v. Federal Land Bank, 167 So. 643, 175 Miss. 462 , involved a case where there was a tenancy from year to year and rent was paid by the tenant and accepted by the landlord. The rule announced in 35 C.J., page 95, is of no practical benefit in the present case. We agree with the rules as stated in 12 Am. Jur. 449 and 502; First National Bank v. Matlock, 99 Okla. 150 , 226 P. 328; and 13 C.J. 244. As stated in the brief of Mrs. McClellan, Hancock was a tenant at will under the authority of Board of Supervisors of Warren County v. Gans, 80 Miss. 76 , 31 So. 539; Ezelle v. Parker, 41 Miss. 520 .
It, therefore, appears without dispute that Hancock was a tenant at will on the land of Mrs. McClellan. The record shows that Hancock went into possession of the land under the trustee's deed, that he collected rents therefrom, and that he cut and sold some of the timber from the land. The cutting of the timber constituted waste. This Court in the case of Moss Point Lumber Company v. Board of Supervisors of Harrison County, 89 Miss. 448 , 42 So. 290, has stated that the cutting of timber as was done in this case constitutes waste. A tenant committing waste is guilty of a tort. This court has held in the case of Feld v. Boradofski, 87 Miss. 727 , 40 So. 816, that the statute with reference to the probating of claims against the estate of a deceased person has reference to contractual claims and not those ex delicto.
Gray v. Harris, 43 Miss. 421 ; Robinett v. Starling, 72 Miss. 654 , 18 So. 421; 2 Words Phrases, 1205, 1206; Sledge Norfleet Co. v. Dye, 140 Miss. 779 , 106 So. 519 ; Sumrall v. Sumrall, 24 Miss. 258 ; Stephens v. Duckworth, 196 So. 219 .
Therefore, Mrs. McClellan does not have to probate her claim and is not barred because she did not do so since (1) it is partially based on a tort, (2) the administrator would not prima facie be entitled to credit if the same should have been paid and (3) the amount of rent and the amount of damages constitutes a "liability" and not a "claim" within the meaning of the statutes upon probated claims.
Fred B. Smith, of Ripley, and Marvin Crawford, of New Albany, for appellants, in reply.
It appears from a comparison of the various briefs heretofore filed that the real issue before the court is whether or not there was an error in an exception of a portion of the land in the deed of trust, so that the applicable rule was the one laid down in the case of McAllister v. Honea, 71 Miss. 256 , and the numerous other authorities sustaining the rule announced in that case; or whether the error was not merely one of exception, but an error in the grant making the applicable rule that laid down in Hesdorffer v. Welsh, 127 Miss. 251 , 90 So. 300 .
In view of these positions it occurs to us that the first thing to determine is when the law applies which was announced in the case of McAllister v. Honea, which brings us to a consideration of the question as to what is an exception. We must bear in mind that in the present case both the deed of trust which was foreclosed and the foreclosure notice contain the definite, specific description of a quarter section of land at the very beginning of the description of the property, in the following language, "the northeast quarter of Section 17, Township 8, Range 4 East." Then, following this specific grant of a quarter
section of land, there is contained the clause, "except 10 1/2 acres described as follows:" Then there follows a description of the 10 1/2 acres which is said to be excepted and in this description there occurs an error, not an error as to the whole property granted, that is fixed and definite as to the northeast quarter of Section 17, and is never varied or changed, but the error is as to the description of the 10 1/2 acres which is excepted therefrom.
We can't see where there can be any possible question but that the law applicable is that dealing with an erroneous description of an exception. The mortgage itself denominated it as an exception, as it used the word "exception." Therefore, we have an instrument that conveys an entire quarter section of land; after doing so, it creates an exception thereon, and it excepts therefrom 10 1/2 acres of the whole. There was no error whatever in the description of the quarter section but there was an error in the description of the excepted 10 1/2 acres. If that is not a situation where the rule, as announced in McAllister v. Honea, would be applicable, then we can't conceive of a situation where there would be a set of circumstances to which you could apply the rule and say that the error was in the exception and therefore the rule applies.
But the McAllister-Honea case itself definitely determines when it is applicable. It is applicable to an error in the description of exceptions, and the case itself definitely defined an exception, such as would cause the rule to apply. Among other things the court said: "An exception is a clause of a deed whereby the grantor excepts something out of that which he had before granted by the deed . . ."
If any other citation of authorities were needed to determine just what an "exception" is, we could make innumerable ones. It has been held in the cases hereinafter cited that an "exception" in a deed is a clause in the deed which withdraws from its operation some part of the thing granted, which would otherwise have passed
to the grantee under the previous general description: Deaver v. Aaron, 126 S.E. 382, 159 Ga. 597 ; Powell v. Bighorn Low Line Ditch Company, 263 P. 692 , 81 Mont. 431 ; Johnson v. Peck, 63 P.2d 251 ; Blackman v. Striker, 37 N.E. 484 , 142 N.Y. 555 ; Elliott v. Small, 29 N.W. 158, 35 Minn. 396 ; Devlin on Deeds, section 979.
If this was an exception in the deed, and the grant of the whole quarter was correctly described, and the error was in the exception, there can be no question as to what the true rule is; that is, the grant stands, the exception fails, and the grantor cannot question the validity of the instrument or the proceedings thereunder for its foreclosure. See Nunnery v. Ford, 92 Miss. 365 .
In view of our deductions in this matter it is still unnecessary to go into and analyze the case of Hesdorffer v. Welsh, as, in our judgment, it has absolutely no application to this cause. The facts in that case reveal that there was no exception, and that the error of description was in the grant itself. The party executing the mortgage simply conveyed land which he did not own; there were two foreclosures, one undertaking to convey the land that he actually owned, and the other undertaking to convey the land that he did not own. Of course, neither conveyed good title. The foreclosure of the land described in the mortgage did not convey good title because the mortgagor didn't own that land; the foreclosure of the land that he did own didn't convey good title, because that land was not conveyed by the mortgage.
Argued orally by Fred B. Smith, for appellant, and by Hugh N. Clayton, for the Administrator.