
    Sarah E. Melsheimer v. Theodore McKnight.
    [46 South., 827.]
    1. Deeds oe Trust. Trustee’s sales. Oode '1892, § 2484. It., § 3486. Time and manner of sale.
    
    A deed of trust fixing the place of sale and stipulating that “notice and manner of sale to he as provided by law where no provision is made in the contract:”—
    
      (а) Is not wholly within Code 1892, § 2484, requiring sales under mortgages with power of sale and deeds of trust, silent as to the place and terms of sale and mode of advertising, to be made as sheriffs sales of like property are made; 'but
    (б) By the contract the statute last cited and Code 1892, § 3486, regulating sheriffs sales of land, govern as to notice and manner of sale, leaving the day (but not the hour) of sale, after proper notice, to the discretion of the trustee.
    2. Ejectment. Judgment. Parties concluded. Res adjudicata. Landlord. Sut-ienant.
    
    A landlord, no.t made a party to and not having notice of an action in ejectment against a sub-tenant, is not affected by the judgment.
    From the chancery court of Issaquena county.
    Hon. Percy Bell, Chancellor.
    Mrs. Melsheimer, appellant, was complainant in the court below; McKmight, appellee, was defendant there. From a decree in defendant’s favor the complainant appealed to the supreme court.
    In 1890 Peter Middleton and wife executed a deed of trust, conveying the land in question, to secure Melsheimer, the husband of the appellant, for money borrowed. On March 10, 1903, si. substituted trustee sold the land under the deed of trust, and it was purchased by Melsheimer, the highest bidder for cash, but the deed was made to Mrs. Melsheimer by her husband’s direction. Afterwards McKnight pur-chased the land from Peter Middleton and wife and brought an ejectment suit against one Reed, a sub-tenant of the land in possession thereof, no notice of the ejectment suit being given to Mrs. Melsheimer, and McKniglit obtained judgment for the possession of the land, and afterwards entered into possession. In April, 1904, complainant filed her bill in the chancery court, setting up her purchase of the property at the foreclosure sale, and prayed that the deed to defendant from Middleton and wife be canceled as a cloud upon her title. Defendant demurred to the bill; the demurrer was sustained, and the bill dismissed. The court below held that the trustee’s sale at which complainant purchased was void, becafise not made in accordance with Code 1892, § 3486, as required by Code 1892, § 2484, providing that when sales under deeds of trust shall be made, if the instrument be silent as to the place and terms of sale, sales should be made as provided by law for sales under execution. Code 1892, § 2484, is as follows :
    “2484. (1237.) Same — How Sale Made When Terms Not Specified. — If a deed of trust or mortgage, with a power of sale, be silent as to the place and terms of sale and mode of advertising, a sale may be made after condition broken, for cash, upon such notice, and at such time and place as is required for sheriff’s sales of like property.”
    Code 1892, § 3486, relating to sheriff’s sales of land, is as follows :
    “3486. (1759.) Sales of Land — How and When Made. — ■ Sales of land may be made on the first Monday of every month, or on the first Monday or Tuesday of a term of the circuit court of the county, and shall be advertised in a newspaper published in the county, once in each week for three successive weeks.”
    Other facts are stated in the opinion of the court.
    
      Dabney & Dabney, for appellant.
    The notice given for the sale was in conformity with the statute. The only feature of the deed of trust to be considered is the word “manner” as “the notice and manner of sale” were to be as provided by law, where no provision is made in the trust-deed ; in other words, as provided by law for a sale under execution. The chancellor, in his opinion, holds that the word “manner” means “method of making the sale,” that is “the means adopted and plan followed in the actual sale”; but he says that because there is no provision in the' deed of trust as to the “time” of sale, that is to say the day of sale, it should have been made on a day provided for execution sales.
    The error of this view, we think, is manifest; in the first place this statute has no application unless the deed of trust “be silent as to the place and terms of sale and mode of advertising.” There must be silence as to each and every one of these; namely, place, terms and notice. If any one of them is provided for in the deed of trust, it does not fall within the statute. In the case at bar all three are named because it adopts as a part of the deed of trust, the provisions of the statute. The statute, therefore, by virtue of the provision, becomes operative as a part of the contract and not as the law. Therefore, the court manifestly erred in holding that the statute, as a law of the state, had no application whatever* But even if part of this statute were not made a part of the contract, by its terms, and notice and manner of sale were not provided for in the deed of trust at all; and admitting that the statute has application, still there is nothing in the statute to sustain the chancellor in his view that because the time (i. e. day) was not named in the deed of trust, one of the days, named for execution-sales should be adopted.
    It will be observed that this statute does not say anything whatever about the time; it is only place, terms and mode of advertising, and we are at a complete loss to understand how the chancellor could have interpolated the word time into the statute.
    He agrees with us that the word “manner” does not embrace the time (the day) of sale, and he bases his decision entirely upon the fact that no time is named in the deed of trust, although the statute contains no provision that where no time is provided for in the deed of trust, the time for execution sales shall be adopted.
    It is argued, however, by opposing counsel, that the word “manner” necessarily embraces that feature of the statute which fixes the day of sale.
    The chancellor does not take this view of it, but he refers to this contention and seems to reach the conclusion that, in any event, the sale is void. He seems to have a process of reasoning which we cannot adopt and the fallacy of -which, we think, is apparent.
    In reply to opposing counsel as to this, we say it would be enlarging very much the ordinary definition and meaning of the word “manner” to have it comprehend so much. The lexicographers do not give it such a broad meaning as here contended for, that is, that “the manner of sale” should mean the particular day of the week on which the sale is to be made.
    That the parties did not mean it, we think, is clear, when we come to consider that the purpose of the legislature in providing that sales under execution should be made on the first Monday of the month or the first or second day of a term of one of the principal courts of the county, was to have such sales made at times when the probabilities were the greatest for a large number of persons to be assembled at the court house. It is a well known fact that people as a rule assemble at court houses on the first two days o.f these courts, and on the first Mondays of months when the board of supervisors is in session, more than other days in the month; and it was evidently the purpose of the legislature to have these sales made at such times, when the probabilities were greatest for publicity and the chances of obtaining bidders. The deed of trust named Halpin Station as the place of sale. It is not a county seat as this court judicially knows. The greater the probabilities of persons assembling at the court house on the first Monday of the month, or the first two days of one of the courts, the greater the probabilities of a scarcity of persons at other points in the county, as the assembling at the court house must necessarily be at the expense of the other parts of the county, and draw the people from those other sections.
    It would follow that the reasons for having such sales made at the court house on one of those- days would be the strongest reason why such sales should not be made at any other place in the county on such days.
    The sale had to be made at Halpin Station, because so provided in the trust deed; therefore, of all other days, one of the days on which opposing counsel say the sale should have been made, would have been the worst day that could have been selected. It cannot be presumed that any such purpose and intention entered into the contemplation of the parties when this deed of trust was made.
    
      MeKnigM & MeKnigM, for appellee^
    The trustee’s sale to complainant was void because it was not made on the first Monday of any month, nor on the first Monday or Tuesday of any term of the circuit court of Issaquena county.
    The deed in trust provides that upon default being made in the debt secured the trustee “shall sell said property and land or a sufficiency thereof to satisfy the indebtedness aforesaid then unpaid, at Halpin Station in said county, notice and manner of sale to be as provided for by law where no provision is made in the contract.”
    The place is named, but the notice and manner of sale, which include everything else in reference to the sale except the place, are to be as provided for by law where there is no provision in the contract. This contract says in substance that the trustee shall sell at Halpin Station, but as to any other act he shall go according to the provisions of the law governing sales where there is no provision in the contract.
    The object-and purpose of the law contained in Code 1892, § 24-84, as to the silence of deeds in trust with power of sale, was to take away from tbe trustee tbe power wbicb he theretofore held for fixing the time and place of sale. It is perfectly evident that tbis deed in trust bad in view the very provisions of' tbe law as contained in tbe above section, and especially in Code 1892, § 3186, wbicb provides that the sale shall be made on tbe first Monday, etc., and shall be advertised in a newspaper, etc., and that tbe parties bad agreed and bad intended simply to fix tbe place and let tbis statute govern tbe rest, and that purpose and intention, is covered by the words “notice and manner of sale to be as provided for by law where no provision is made in tbe contract.”
    If tbe effect of Code 1892, § 2181, was to take away from the trustee tbe power to fix tbe time, place, etc., of a sale, where none was fixed by tbe instrument, then tbe trustee bad no power to fix tbe time, place, etc., unless tbe instrument itself clothed him with that power. Tbe instrument in tbis case did not fix anything except tbe place and did not empower tbe trustee to fix that wbicb was not fixed by it, but left everything else unprovided for unless everything else to be done by tbe trustee is covered by tbe expression “notice and manner of sale.” There can be no doubt about tbe notice required being that'mentioned in Code 1892, § 3886, and tbe only disputed point is whether tbe manner of sale covers everything else with reference to tbe making of tbe sale except tbe place and advertisement. In other words, does manner of sale cover tbe time at wbicb tbe sale is to be-made. We respectfully submit that under the two sections quoted there is nothing else to be covered by manner of sale except that it is to be sold for “cash . . . and at such time . . . as is required for sheriff’s sales of like property.” Tbis deed in trust writes tbe statute into itself.
    Our contention is not in conflict but in accord with tbe bolding of tbis court in tbe case of Goodman, v. Building & Loam, Association, 71 Miss., 310, 11 South., 116, and Williams v. Dreyfus,, 79 Miss., 215. See also as to Manner of Sale, 28 Am. & Eng. Encyc. of Law (2d ed.), 804 (3) and notes 4 and 5, and Harris v. Doherty, 119 Mass., 142: The Banlc v. McOlure, 64 N. W., 992.
    Code 1892, § 1677, makes judgments in 'ejectment res adju> dicata, against “all persons claiming from, through or under the party against whom it is recovered,” and the landlord, who claims the reversion “from” the tenant is bound by the judgment against the sub-tenant.
   Mates, J.,

delivered the opinion of the court.

It is our view that the demurrer should have been overruled. In so far as is shown by the bill of complaint, whieh is admitted by the demurrer, the sale of March 10, 1903,- was a valid sale and conveyed a good title to the purchaser. The deed of trust provides, in case of default being made in the payment of the debt secured, thereby making it necessary to sell the property, that the trustee “shall sell said property and land, or a sufficiency thereof, to satisfy the indebtedness aforesaid then unpaid, at Halpin Station, in said county, notice and manner of ■sale to be as provided by law where no provision is made in the contract.” By the terms,of the mortgage contract Code 1892, § 2484, is to be operative in the enforcement of the contract to the extent specified; that is to say, the notice of sale shall be as required by the statute, and the manner of sale shall also be according to the statute. These are the only two elements of the contract left to the control of the statute for enforcement. Code 1892, § 3486, providing how notice of sales shall be given, requires advertisement in a newspaper published in the county for three consecutive weeks. The allegations of the bill show more than a compliance with the statute on the subject of notice. Therefore this question is eliminated from the discussion.

The manner of sale is fixed by Code 1892, § 3489. By this section the sale must be made at auction to the ■bigbest bidder for cash, not sooner than. 11 o’clock in tbe forenoon nor later than 4 o’clock in the afternoon. Tbis is tbe manner in which tbe sale is to be made by incorporating into tbe contract tbe statute, and tbe bill shows a compliance with tbis requirement, unless it can be said tbat tbe manner of sale mentioned in tbe contract necessarily includes tbe other element of tbe statute which fixes tbe time of sale; tbat is to say, tbe particular day of tbe month on which all sales made by law are to take place. We cannot agree tbat a correct interpretation of tbis contract makes it necessary, not only to give tbe same notice and to make the sale in tbe same way that tbe law requires, but also to require tbat tbe sale be made on no other day of tbe month than tbe one designated by law for sales of land under •execution. Tbe contract expressly limits tbe operation of tbe statute to tbe two things named; that is, notice and manner of •sale. Manner of sale in tbis contract only means tbat tbe statute shall control as to tbe hours within which tbe sale shall be made, and tbat tbe property shall be sold at public auction to the bigbest bidder for cash. Tbe place where tbe sale shall be made is named in tbe contract, and tbe day on which it shall "be made constitutes no part of tbe manner of sale named in tbe contract, but is left to tbe discretion of tbe trustee to- name, provided, only, tbat tbe day named shall be after tbe time it is re•quired tbat tbe notice shall be published.

Tbis deed in trust is not silent either as to tbe place or terms of sale within tbe meaning of Code 1892, § 2484. Tbe place is named expressly, and tbe terms of sale are fixed in tbe contract, as provided for in Code 1892, § 3489. Therefore by tbe contract both tbe place and terms of sale •are fixed, and tbe day of tbe month on which tbis sale shall take placéis left in tbis contract to fixation by tbe trustee after proper notice. It did not have to be on tbe first Monday -of any month in order to be valid, and, of course, it was unnecessary tbat it be made on tbe first Monday or Tuesday of a term'of the circuit court of the county. There could be no reason for this last requirement, since a circuit court is not held at Halpin Station at any time.

No precise rule can be framed by which it may always be determined in all cases the exact meaning of the word “manner,” etc., when used in a contract or statute. The particular-contract or statute in which it is used must always be examined, and its meaning’ determined in the light of same. In Bankers' Life Ins. Co. v. Robbins, 59 Neb., 174, 80 N. W., 484, it is said: “The manner of doing a thing has reference to the way of doing — to the method of procedure — and the element of time does not seem to be involved.” In United States v. Morris, 1 Curtis (U. S. C. C.), 23, Fed. Cas. No. 15,815, it is said: “Generally the time of doing an act and the manner of doing an act are distinct things.” See, also, Goodman v. Durant, 71 Miss., 310, 14 South., 146; Williams v. Dreyfus, 79 Miss., 245, 30 South., 633.

We do not deem it necessary to discuss the other questions, raised by the demurrer, further than to say that the-appellant is not affected by the judgment in ejectment, rendered against the tenant of a tenant, since she had no, notice of the suit in anyway and was not made a party to same.

The case is reversed and remanded, with leave to answer within thirty days from date mandate is filed in the court below.

Reversed.  