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79 Miss. 245

Williams v. Dreyfus

Mississippi Supreme Court

Decided October 15, 1901

Mississippi Supreme Court · decided 1901-10-15

From the chancery court of, first district, Hinds county. Hon. Henry C. Conn, Chancellor. Williams and others, appellants, were the complainants in the court below; Dreyfus and others, appellees, were defendants there. The defendants claimed the land in controversy under a deed to them made by a trustee in pursuance of a sale under a deed of trust executed by complainants’ ancestor, under whom appellants claimed by inheritance.

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Decided 1901-10-15

How this case has been cited

Cited by 3 later decisions — most recently September 1946

3 state decisions

1019011910192019301940decided

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CalhooN, J.,

¶1delivered the opinion of the court.

¶2The 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.

¶3The 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.”

¶4Construing 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.

¶5Affirmed.

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