¶1 concurring:
¶2 I agree with the conclusion reached by the majority of the Court. However, I do not agree that the notice (advertisement) of sale is to be treated as an ambiguous instrument and that such an ambiguity may be clarified by resorting to the circumstances surrounding the instrument and the parties concerned. In my judgment, the description of the property to be sold contained in such an advertisement under the requirements of subsection (e) of Code, 38-1-4, is to be regarded per se as either containing a sufficiently clear description of the property to be offered or as inaccurate or inadequate in that respect. The notice and advertisement are made in part for the purpose of attracting purchasers from the general public, and a confused description of the property, accompanied by the likelihood that a sale would be rendered invalid for- that reason, would certainly not attract bidders. Neither would the general public be able to ascertain the property to be offered, or to clarify what the majority opinion terms an “ambiguity” in its description, by resorting to the circumstances under which the advertisement or notice of sale was drawn. *64 The term ambiguity, as I understand it, applies to an instrument that a court has power to clarify by construction. I do not think that, in a strict sense, an advertisement of sale under a trust deed belongs to that class of instruments. I believe that it is a paper which should contain a sufficiently clear description to identify the property to be offered, though it does not have to single out the property with the accuracy required in a conveyance. Code, 38-1-4; 19 R. C. L. 600, sec. 415. I think that the notice of sale is fatally defective for the reason that it does not sufficiently describe the property to be offered for sale due to the confused description of the mineral interest to be reserved, and that the decree below should be reversed for that reason alone.
¶3 Although I regard the question of the trustee’s conduct at the sale and his oral announcement as being of secondary importance in this instance, I cannot follow the majority’s opinion which, I think by clear implication, lays down a general rule which precludes parol testimony relating to what the trustee orally announced was to be sold. I think that the trustee’s announcement of the property to be sold is much more vital and salient than what could be termed “verbal representations”. Spoken representations might be as to the value, quality and other “sales talk”, to which the rule of caveat emptor would apply. But to my mind, and I think under the great weight of authority, this does not apply to a statement of fact required of the trustee and made by him as to what is being offered for sale, including its quantity. I am under the impression that that sort of testimony is admissible even where a trustee’s sale is conducted pursuant to a notice containing a clear description of the property. Crabtree v. Price, 212 Ala. 387, 102 So. 605; Naugher v. Sparks, 110 Ala. 572, 18 So. 45. In a case of the kind before us which involves a trust sale under a notice of sale containing a confusing description, I believe that testimony of that kind should be admissible not only to show what the trustee in fact offered for *65 sale, but it is also relevant as bearing upon what resulted from the confusion which existed in the notice of sale, and in that connection, it should be considered, although, perhaps, of secondary importance.
¶4 Of course, parol testimony in order to establish what the trustee did in fact offer for sale should be quite clear and convincing if offered to overcome the trustee’s report or conveyance. The sufficiency of proof should rest largely in the sound discretion of the trial chancellor.