107; Jenks vs. Alexander, 11 Paige 619; Bunce vs. Reed, 16 Barb. 347. Sale is not void because the notice does not state the amount of the debt: Wiswall vs. Ross, 4 Port. (Ala.) 321.

SEC. 28. Notice-Effect of want of.-If the notice is not publisted for the requisite length of time, the sale is void, not merely voidable; no title passes, and the purchaser cannot maintain ejectment or other action: Bunce vs. Reed, 16 Barb. 350, and cases; Baldridge vs. Walton, 1 Mo. 520; Gibson vs. Jones, 5 Leigh 370; Jackson vs. Clark, 7 Johns. 217, 226. And so if the sale is made. on the wrong day: Miller vs. Hull, 4 Denio 104; Dana vs. Farrington, 4 Minn. 433. But defects in the publication of notice were held to be cured by the lapse of a long time-in one case sixteen years, in another, twenty-four years without objection-the Court supplying the defects by presumption: Bergen vs. Bennett, 1 Caine's C. E. 1; Demarest vs. Wynkoop, 3 Johns. Ch. 129. Third persons cannot object that the trustee did not give proper notice; this can only come from the grantor in the deed of trust, or some person who sustained injury: Wightman vs. Doe (ejectment) 24 Miss. 675; Hillegas vs. Hillegas, 5 Barr 97; Casey vs. Colvin, 11 Ala. 514; Edmonson vs. Walsh, 27 Ala. 578; Infra sec. 37.

SEC. 29. Adjournment of sale-Power implied-When and how exercised.-The deed need not expressly give the trustee power to adjourn. It is implied unless inhibited. He may adjourn, giving proper notice, not only to a different time, but to a different place: Richards vs. Holmes, 18 How. (U. S.) 143; Jackson vs. Clark, 7 Johns. 217, 225; Sayles vs. Smith, 12 Wend. 57; Miller vs. Hull, 4 Denio 104; Baldridge vs. Walton, 1 Mo. 520.

This is a matter of discretion which must be properly exercised; 18 How. 147. If few are present, and the bids low, it is the clear duty of the trustee to adjourn: Johnson vs. Eason, 3 Ired. (Eq.) 336; supra, sec. 20.

Regularly, the adjournment should be on the day and at the place of sale, and the same notice given which is required in the first instance. When thus postponed, it need not be for the length

1 A sale on Sunday, however improper it may be, is yet valid, not being a judicial proceeding, unless prohibited by statute: Sayles vs. Smith, 12 Wend. 57. VOL. XI.-46

of time at first required: Per SPENCER, J., 7 Johns. 217, 225.1 But if notice of postponement before the day of sale be published, and the sale is made on the day originally fixed, it is void and confers no title Jackson vs. Clark, 7 Johns. 217. So if the sale is adjourned on the ground, the published notice of such adjournment must conform to the adjournment previously announced, or the sale will be void: Miller vs. Hull, supra; sec. 25, supra, note 2. As to republication of defective notice and postponement of sales, see also Cole vs. Moffit, 20 Barb. 18; Sayles vs. Smith, 12 Wend. 57; Westgate vs. Handlin, 7 How. Pr. R. 372.

SEC. 30. Effect of sale in barring equity of redemption, and cutting off subsequent incumbrancers-Effect of irregular sale, &c. -In sales under powers, two questions have been made: 1st. Whether the donee of the power could lawfully sell without appication to, and the previous order of, a Court of equity. 2. If so, will such sale bar the equity of redemption?

On the first question, as we have seen (supra, sec. 3), there was much doubt until it was fully and finally settled in England, in A. D. 1802, by Clay vs. Sharpe, apud Sugd. on Vend., Appendix No. 14. Since then, the validity of such sales without the prior sanction of Court has been unquestioned: Corder vs. Morgan, 18 Ves. 344; Sims vs. Huntley, 2 How. (Miss.) 896. Clay vs. Sharpe also decided that where a sale was regularly made under a power, even though it was without the assent of the owner, and against his resistance, the title passes to the purchaser. And because it is unnecessary that he should do so, a Court of equity will not entertain a bill to compel the owner to join in a deed to the pur

chaser.

As to the second question above, the law is equally clear. The right to redeem remains until the sale is made pursuant to the power, but not afterwards, unless there is a statute, or some extrinsic

1 The learned Justice suggests the quere whether there could be a postponement before the day of sale, unless it be for the full time fixed by the statute or the deed See also 4 Minn. 433.

Adjournment made at time and place advertised need not be published: Ccz vs. Halstead, 1 Green Ch. 311; s. P. 1 Stockt. 287.

matter of equity:1 Corder vs. Morgan, supra; Turner vs. Johnson, 10 Ohio 204; 4 Kent 147; Eaton vs. Whiting, 3 Pick. 484; Brisbane vs. Stoughton, 17 Ohio 482; Bloom vs. Rensselaer, 15 Ill. 506; 7 Johns. Ch. 145; supra, sec. 11. The purchaser's title is absolute and irredeemable, and the sale bars even infants, heirs, and married women: Demarest vs. Wynkoop, 3 Johns. Ch. 129; 7 Id. 45; 10 Ohio 204; supra, sec. 5.

As such sale extinguishes the debtor's equity of redemption (supra, sec. 11), his only right after the sale is to what surplus may remain after the liquidation of the debt for which the property was sold; and as to the premises, he is a mere tenant at sufferance: Kinsley v. Ames, 2 Met. 29; Bank vs. Guttschlick, 14 Pet. 19. The purchaser is entitled to the crops growing on the land at time of sale: Shepherd vs. Philbrick, 2 Denio 174.

As the object of the sale is to cut off the right of redemption, proceedings to foreclose by notice and sale conclusively acknowledge the right to redeem, even though such right would not otherwise exist: Calkins vs. Isbell, 20 N. Y. 147.

If the statute allows a certain time after sale in which to redeem, then the purchaser acquires an inchoate title, subject to be defeated if redeemed, absolute if not redeemed, in which case it relates back to the time of purchase. When his title is perfected by deed, he may maintain case or trover for trespasses committed by the mortgagor or others, after the purchase and before the time for redemption expired: Stout vs. Keyes, 2 Doug. 184; Rich vs. Baker, 2 Denio 79; 17 Barb. 157; Howard's N. Y. Code 432 (Ed. 1859).

Mere tender within the time does not reinvest mortgagor with the title. If the tender is refused, resort must be had to chancery: Smith vs. Anders, 21 Ala. 728.

While on this subject, it may be remarked that general statutes

1 Thus where the trustee or mortgagee has power "to sell to the highest bidder and of the proceeds first to pay," &c., a sale passes an indefeasible and irredeemable estate to the purchaser: Turner vs. Johnson, 10 Ohio 204; Johnson vs. Turner, 7 Ohio, pt. 2, p. 216. But the right to redeem is not barred (unless perhaps in the case of a bonâ fide purchaser) by a sale made after a tender of the full amount due the creditor and a refusal to accept: Burnet vs Denniston, 5 Johns. Ch. 35.

allowing redemptions from "sales under decrees of court" have no application to sales made under powers: Bloom vs. Rensselaer, 15 Ill. 503.

A valid sale under a prior deed of trust cuts off subsequent mortgages and judgments: Wiswall vs. Ross, 4 Port. (Ala.) 321; Pahlman vs. Shumway, 24 Ill. 127; Bodine vs. Moore, 18 N. Y. 347; 9 Iowa 407; Brown vs. Bartee, 10 Sm. & Mar. 268. In this last case (Brown vs. Bartee), it was held that a sale even to the beneficiary under a prior deed of trust, cut off a subsequent judgment against the trustor,' even though prior to such sale by the trustee, but after the judgment, the trustor has conveyed absolutely to the beneficiary.2

A sale under a junior deed of trust carries to the purchaser the equity of redemption of the grantor :3 Graham vs. King, 15 Ala. 563; supra, sec. 11. An attempted sale under a power by which no title passes, will yet amount to an assignment of that part of the mortgage-debt for which the premises were bid off: Gilbert vs. Cooley, Walk. Ch. 494; Jackson vs. Bowen, 7 Cow. 13; Grovenor vs. Day, 1 Clark 109. If the purchaser at a cash sale does not pay the money in a reasonable time, the trustee may treat the sale as a nullity. If such purchaser has been guilty of unreasonable delay in tendering or paying his bid, equity will not enforce specific performance at his instance: Heur vs. Rutkowski, 18 Mo. 216.

SEC. 31. The trustee's deed-The title of grantee of trustee— Fraud-Consideration-Covenants.-The trustee, as we have seen

1 This word (trustor), the correlative of trustee, though used in Scotch law, and in itself very significant and convenient, has not been adopted in England, and is rarely used in the United States. See 9 Ire. (Law) 191:" Burrill's Law Dict. Its convenience and appropriateness should secure its general adoption and use.

2 As to rights of subsequent lien-holders under New York Statute, see Benedict vs. Gilman, 4 Paige 58, Id. 526; Klock vs. Cronkhite, 1 Hill 107; Post vs. Arnot, 2 Denio 344; generally, infra sec. 40.

3 Equity will not, except under special circumstances, compel the holder of a prior deed of trust, past due, to accept redemption from and to assign the same to the holder of a second deed of trust not yet due, as this might enable the latter to oppress the debtor: How vs. Graham, 21 Mo. 163.

(supra, sec. 10), takes the legal title upon a declared trust; and the grantee of the trustee takes the legal title which was before held by the trustee, and such grantee may recover in ejectment without showing that the trustee, in making the sale, complied with the conditions by advertising, &c.: Reece vs. Allen, 5 Gillman 236. · The Court of Appeals in Virginia hold the same doctrine, and go further, and decide that such grantee cannot be defeated in a Court of law, and may recover possession; although the jury specially found that the trustee and purchaser were both guilty of fraud at the time of the sale by the trustee-questions of fraud, unless the deed is absolutely void, belonging to a Court of Chancery, where the sale can be set aside or the purchaser treated as a trustee : Taylor vs. King, 6 Munf. 358; Harris vs. Harris, Id. 367; Gibson vs. Jones, 5 Leigh 370; Carrington vs. Goddin, 13 Gratt. 601; Christian vs. Yancey, 2 Patton & Heath 240; Skipworth vs. Cunningham, 8 Leigh 271; 10 Id. 183; Stimpson vs. Fries, 2 Jones (Eq.) 156; 7 Ired. (Law) 418; Newman vs. Jackson, 12 Wheat. 570;2 Rowan vs. Lamb, 4 G. Greene 468; 11 Iowa 589. But in equity it is different, as the purchaser takes upon himself the risk of the regularity and fairness of the sale, and on a bill to set it aside he must prove its regularity: Norman vs. Hill, 2 Patton & Heath 676; infra, sec. 36.

At law, the legal title passes by the conveyance of the trustee, although he may be guilty of a breach of trust, or fail to comply with the terms of the trust: Gale vs. Mensing, 20 Mo. 461; Bank,

1 The fraud to defeat the deed in a court of law must be fraud in the factum. Fraudulent representations which may have induced the party to make the deed or fraud in the consideration, do not avoid the deed at law: Gwynn vs. Hodge, 4 Jones (Law) 168, and cases.

2.The conveyance by the trustee is a sufficient title to enable his alienee to recover in ejectment, unless the objection that the trustee's notice was so defective that no title passed to the purchaser is maintainable." Whether the conveyance

by the trustee would pass the legal title if there had been no notice at all, the court had no occasion to decide: 12 Wheat. 570. That it would not, see Jackson vs. Clark, 7 Johns. 217, and remarks of Court on page 226, where it is said (the action being ejectment) that the purchaser must show the regularity of the notice and sale as part of his title: Miller vs. Hull, 4 Denio 104; King vs. Buntz, 11 Barb. 192 Sherwood vs. Reed, 7 Hill 431; Dana vs. Farrington, 4 Minn. 433.