Appellee filed its bill in the chancery court of Chickasaw county against W.A. Wilkinson and J.L. Ward, who are the appellants, and R.W. Paden to quiet and establish its title to certain lands in Chickasaw county bought by it at a mortgage foreclosure sale, and to recover a deficiency judgment against the defendants in the sum of approximately five thousand dollars.
In 1922 Wilkinson was a member of the Houston National Farm Loan Association of Houston, in this state, and the owner of one hundred shares of stock of the association. He obtained a loan from appellee in the sum of ten thousand dollars, giving a note therefor and a mortgage on his lands in Chickasaw county to secure the note.
In 1923 Wilkinson conveyed the mortgaged lands to appellant J.L. Ward in consideration of Ward's assuming the balance due on the mortgage indebtedness to appellee; other considerations were mentioned in the conveyance. The assumption of the indebtedness to appellee was set forth specifically as a part of the consideration for the conveyance.
In 1924 Wilkinson and Ward joined in a written application to the Houston National Farm Loan Association requesting that Wilkinson's stock in the association be *Page 658 transferred to Ward. In the application Ward reasserted his assumption of the mortgage indebtedness to appellee and agreed to carry out all the conditions and stipulations contained in the original application of Wilkinson. Appellee was given notice of the application for the transfer of the stock from Wilkinson to Ward and approved the same and recognized Ward as principal mortgagor.
In 1928 Ward conveyed the mortgaged property to R.W. Paden in consideration of Paden's assuming the balance due on the mortgage indebtedness and other considerations mentioned in the deed. The assumption by Paden of the mortgage indebtedness was expressly and plainly set forth in the conveyance. On the same day the conveyance was made from Ward to Paden, they both joined in a written application to the Houston National Farm Loan Association and appellee requesting the association to admit Paden to membership therein and that Ward's stock in the association be transferred to Paden, and that Paden be recognized and accepted as the principal mortgagor "with the reservation that neither the original borrower nor any subsequent transferees shall be released from the obligation until it is fully paid." The stock was accordingly transferred to Paden with the approval of appellee, and thereafter appellee recognized Paden as the principal mortgagor.
On August 5, 1929, default having been made in the payment of the mortgage indebtedness, foreclosure took place under the power of sale by the trustee, and the property was bought in by appellee for the sum of five thousand dollars. Upon demand of appellee, Paden and his tenants refused to surrender possession of the lands. Thereupon appellee filed its bill in this case to quiet and establish its title to the lands and to recover possession thereof and a deficiency judgment.
The published notice of the sale set forth the name of the original mortgagor, Wilkinson, but did not set forth *Page 659 the name of Paden. Appellants contend that for that reason the foreclosure sale was void. The applicable provision of section 2167, Code 1930, is in this language: "And such notice and advertisement shall disclose the name of the mortgagor or mortgagors whose property is advertised for sale. No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary." This provision of the statute did not appear in the Code of 1906 (section 2772). That section of the Code was amended by chapter 180, Laws of 1908; the only change made in the statute by this amendment was the provision of the statute quoted above as it appears now in section 2167, Code 1930.
In volume 3 (8 Ed.) of Jones on Mortgages, sections 2285-2288, there is a discussion of the origin and history of the foreclosure of mortgages in pais. The author says, among other things, in section 2285: "Powers of sale in a mortgage are contractual, and as there are many opportunities for oppression in their enforcement courts of equity are disposed to scrutinize them, and to hold the mortgagee to the letter of the contract."
The statute is in derogation of common law and must be strictly pursued. It will be noted that the statute itself, in effect, so provides, for it expressly declares all sales made in violation of this clause shall be void. What does the phrase in the statute "mortgagor or mortgagors whose property is advertised for sale" mean? Is the statute satisfied if the advertisement states alone the original mortgagor and fails to name the last vendee through the original mortgagor — in this case, Paden? Ward and Paden were as truly mortgagors as was Wilkinson; they assumed the mortgage indebtedness as a part of the consideration of their conveyances, and this was done with appellee's knowledge and approval, and after each conveyance the vendee was recognized as the principal mortgagor. When the foreclosure took place *Page 660 neither Wilkinson nor Ward owned the land, but Paden did. Paden was therefore a mortgagor whose property was advertised for foreclosure. The policy of the statute is that those who own the mortgaged premises have notice — constructive notice — of the time and place of the foreclosure sale, so that they can be present and bid or have bidders present to protect their interests. Wilkinson and Ward were interested, but not so much so as Paden. Paden was the mortgagor in possession; he was the mortgagor whose property was advertised for sale. That could not be said of either Ward or Wilkinson. Still, Ward and Wilkinson were interested in Paden having notice, for, under the law, Paden had become the principal debtor and Ward and Wilkinson, his sureties, in the order named. Gilliam v. McLemore, 141 Miss. 253,106 So. 99, 43 A.L.R. 79. We hold, therefore, that the failure to name Paden in the advertisement as mortgagor rendered the sale void.
Appellee contends, however, that the sale ought to be upheld "on account of the dire consequences that would flow from a contrary construction of the statute," and to sustain that contention it refers to the case of Conard Furniture Co. v. Mississippi State Tax Commission, 160 Miss. 185, 133 So. 652, 656. In that case the court held that in construing a statute of doubtful meaning "the consequences of any particular construction should be considered, whether they be good or bad." The trouble about that argument is we have here a statute which, in our judgment, is not of doubtful construction; it just says "mortgagor or mortgagors whose property is advertised for sale." That signifies Paden in this case and nobody else. He was the mortgagor whose property was advertised for sale and the only one whose property was advertised for sale.
Reversed, and bill dismissed. *Page 661