Tyler v. Herring

Citations

• 67 Miss. 169

Syllabus

<p>1. Trust Deed. Power of sale. Possession by trustee.</p> <p>Where a trust deed provides that upon default “the trustees shall immediately take possession, and having given notice sell the land conveyed,” such possession is not a condition precedent to the power of sale. Vaughn v. Powell, 65 Miss. 402.</p> <p>2. Trustee’s Sale. Ministerial acts. Agent.</p> <p>The merely ministerial acts of posting notices and conducting the sale may be performed without the presence of the trustee by an agent selected by him, if the trustee ratifies such acts and makes the deed.</p> <p>3. Trustee’s Sale. Acts in pais. Presumption.</p> <p>Where a trustee sells land under a trust deed, a proper conveyance by him is prima fade evidence of the performance of all necessary ministerial acts before sale. But this is a mere presumption, and, if there is evidence to impeach the sale, one who attacks it is not required to show, by a preponderance of the evidence, that such acts were not performed.</p> <p>4. Same. Notice. Presumption. Pvidence. Instruction.</p> <p>Where plaintiff in ejectment, claiming under a trustee’s sale, not resting on the presumption arising from his deed, introduces the trustee who testifies that he only knows from information that notice of sale was given, and the other evidence leaves room to doubt whether it was properly given, it is error to charge the jury that the burden of proof is on the defendant to show by a preponderance of evidence, to the satisfaction of the jury, that notice was not given.</p>