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his earnings, and that it was the prac-
tice of the plaintiff to pay all labor-
ers in his employment at short
and stated periods. Waugh v. Riley,
8 Mete. (Mass.) 290.

Evidence of a conversation within
the twenty-year period, in which the
mortgagee said to the mortgagor, in
response to the statement of the lat-
ter that he had lost his note, that
such fact was immaterial, and that
the mortgagor could have possession
at any time, is competent to show
that the mortgage is not barred by
the statute of limitations. Perkins v.
Eaton, 64 N. H. 359. 10 Atl. 704.



MORTGAGES. 775

defenses. 2 A variance between the ol)ligation secured and tliat pro-
duced may, consonant to the rule generally obtaining, be explained
by parol.^ Secondary evidence of the contents of the note secured
may be received if its loss or destruction is satisfactorily shown.'*
If an assignee of one of several notes brings the writ, and it appears
that the mortgage has been assigned to the holders of other notes,
who refuse the use of it to the plaintiflf. secondary evidence of the
existence and contents of the mortgage is competent.'' And for this
purpose a cop) from the registry may be received.'"'

b. Under the Issues. — Tf the breach of a particular condition of
the mortgage is alleged the proof must be restricted to the condition
named/ Evidence of possession in another is not admissible in
the defendant's behalf under a plea of payment and mil disseisi)i to
the writ.^ Nor on trial of the general issue would evidence be ad-
missible that the demanded premises are subject to a superior mort-
gage, the holder of which had recovered judgment for possession
to foreclose, and had taken possession, then held, before the demand-
ant's action was begun. ^ But the plea of payment need not be
proved by evidence of a money payment, the application of other
credits being competent." Where the defense alleged is that the



2. Freeland v. Freeland, 102 Mass.
475 ; Bigelow v. Bigelow, 93 Me. 439.
45 Atl. 513.

No Consideration. — Heirs of Mort-
gagor In a suit for foreclosure

against the heirs of the mortgagor it
may be shown that the mortgage was
given without consideration, and pa-
rol may be received to show that no
debt ever existed between the parties
to the instrument. Hannan z'. Han-
nan, 123 Mass. 441, 25 Am. Rep. 121.

3. Barter z\ Mclntire, 13 Gray
(Mass.) 168.

4. Secondary Evidence Admissi-
ble in Case of Loss or Destruction.
Grimes v. Kimball, 3 Allen (Mass.)
518; Ward V. Gunn, 12 Allen
(Mass.) 81.

Inadmissibility of Copy Without
Laying Proper Foundation An-
drews V. Hooper, 13 Mass. 472.

5. Proof by Record. — Johnson v.
Brown, 31 N. II. 405; Poignard v.
Smith, 8 Pick. ( Mass. ) 272.

6. n e of Several Assignees.

Secondary Evidence Johnson v.

Brown, 31 N. H. 405; Poignard v.
Smith. 8 Pick. (Mass.) 272.

7. Where the condition of the
mortgage asserted to be broken is
that the mortgagor shall support and



clothe the demandant, the amount
of the demandant's income is imma-
terial on the question whether the
tenant performed the condition of his
mortgage. Jones v. Smith, 121
Mass. 15.

8. " Under the pleadings the ques-
tion [of possession] was not open.
The tenant's plea of mil disseisin ad-
mitted tliat he was tenant of the free-
hold, and there was no specification
to qualify the effect of this plea."
Richmond Iron Wks. v. Woodruff, 8
Gray (Mass.) 447.

9. Under the General Issue.
Possession of Another Under Para-
mount Mortgage Inadmissible.
Aniidowii z'. IVck, 11 Mclc. (.Mass.)
467.

When the tenant pleads only the
general issue, without any specitica-
tion of defense that he was not ten-
ant of tlie freehold, the demandant is
not required to show the tenant's pos-
session of the premises, nor can the
tenant rely upon such a ground of
defense. Devciis z\ Bower. 6 Gray
(Mass.) 126.

10. What Admissible on Issue
of Payment. — Under a plea that the
plaintiff's mortgage has been paid and
satisfied, evidence that an account due

Vol. vni



776



MORTGAGES.



note secured by the mortgage was given without consideration, to
rebut the evidence of the defendant offered under this plea evi-
dence that the note was given to defraud the mortgagor's creditors
is inadmissible.^^

C. Conditional Judgment as Evidence in Action to Redeem.
If a conditional judgment is rendered on a writ of entry to foreclose,
in the mortgagor's subsequent action to redeem from the mortgage
the judgment so rendered is conclusive evidence of the amount
then due on the mortgage debt.^^

3. By Exercise of Power of Sale. — A. Presumption as to Valid-
ity OF Sale. — Where a sale has been made by a trustee in a deed
of trust and the property conveyed to a purchaser at the sale, the
deed so executed is prima facie evidence of the regularity of the sale
and of the validitv of the title under it." So the trustee's deed is



and owing from the plaintiff to the
defendant was agreed to be applied
in payment of the debt on the mort-
gage is competent. " Under the de-
fense that ' the mortgage was paid,
satisfied and extinguished.' it was
competent to show that the balance
due to the defendant on accovnit, as
stated in the bill of particulars, was
b\' agreement of the parties to be
applied to the payment of this note,
and was in fact so applied. Although
not stated in the bill of particulars
as a sum actually applied to
the discharge of the note, it was
stated as an item in a bill of
particulars ordered by the court, on
the motion of the plaintiff, that ' the
defendants be required to file a bill
of particulars of the payments of
the mortgage, stating the time and
amount of said payments.' The party
was therefore fully apprised by the
bill of particulars filed under this or-
der, and under the general allegation
of payment of the note relied upon
in defense, as to this alleged pay-
ment; and the testimony tending to
prove that this sum was agreed by
the parties to be applied in part pay-
ment of the note was competent evi-
dence and properly admitted." Slay-
ton V. Mclntyre. ii Gray (Mass.)
271.

11. No Consideration — Traud

as Against Creditors Wearse v.

Peirce, 24 Pick. (JMass.) 141.

12. Fuller v. Eastman, 81 Me. 284,
17 Atl. 67; Sparhawk v. Wills, 5 Gray
(Mass.) 423; Ilolbrook v. Bliss, 9
Allen (Mass.) 69.

Vol. VIII



As Against One Not a Party to
Foreclosure — It would not be con-
clusive, however, as against one who
purchased the mortgagor's equity of
redemption before the bringing of
the foreclosure, and who was not a
party to the proceeding. Dooley 7'.
Potter, 140 IMass. 49. 2 N. E. 935.

13. Presumption From Sale and
Execution of Deed. — Graham v.
Fitts, 53 Miss. 307; Lunstord 7'.
Speaks. 112 N. C. 608, 17 S. E. 430.

Right to Sell — It will be pre-
sumed from the fact of a sale of the
mortgaged premises that the mort-
gagor had made a breach of the con-
dition in the mortgage which gave
rise to the right to sell; and if he
asserts the contrary he has the bur-
den of proving it. Pope v. Durant.
26 Iowa 233.

A trustee's sale of property in a
foreign jurisdiction, under a deed of
trust executed in such jurisdiction,
will be presumed, in the absence of
evidence to the contrary, to be reg-
ular and valid in a controversy be-
tween claimants of the fund and un-
der the deed of trust. Eastern Trust
& Bkg. Co. V. American Ice Co., 14
App. D. C. 304.

Where impeaching evidence is in-
troduced the attacking party need not
show non-compliance by a prepon-
derance of the evidence. Tyler v.
Herring, 67 Miss. 169, 6 So. 840.

Proof of a breach of the condition
authorizing sale, together with the
production of the deed, executed to
the purchaser, is prima facie evidence
of title. Western Union Tel. Co. v.



MORTGAGES.



Ill



prima facie evidence of default in the payment of the debt secured.'*
But in an action by a purchaser against the mortgagor, under a
power of sale mortgage, the purchaser has the burden to show by a
preponderance of the evidence that the sale was regular and fair."^
B. Proof of Invalidity. — Where for any reason the validity of
a sale under a power is sought to be impeached, the attacking party
has the burden of establishing the ground of invalidity by clear and
satisfactory evidence.^" Inadequacy merely of the price received



Hearne (Tex. Civ. App.), 40 S.
W. 50.

Statutory Sale. — Possession.
Burden. — Where possession is
sought to be obtained under a fore-
closure by advertisement the plain-
tiff has the burden of showing a
compliance with the requirements of
a valid sale under the statute. Weir
V. Birdsall. 27 App. Div. 404, 50 N.
Y. Supp. 275.

14. Hume v. Hopkins, 140 Mo. 65,
41 S. W. 784; Pope V. Durant, 26
Iowa 233.

The recital in a deed by a trustee,
of a compliance with the conditions
in the deed of trust, is prima facie
evidence of the truth of the matters
recited. Saving & Loan Soc. v.
Deering. 66 Cal. 281. 5 Pac. 353.

15. McMillan v. Baxley, 112 N.
C. 578. 16 S. E. 845.

16. Illinois. — Munn v. Burges,
70 111. 604; Bush ZJ. Sherman, 80 111.
160.

Missouri. — McNew v. Booth, 42
Mo. 189; Forrester v. Scoville, 51 Mo.
268; Kennedy v. Kennedy. 57 Mo.
73 ; Forrester v. Moore. 77 Mo. 651 ;
Jackson v. Wood, 88 Mo. 76.

Rhode Island. — Island Sav. Bank
V. Galvin, 20 R. I. 347. 39 Atl. 196.

IVest Virginia. — Fulton i'. John-
son, 24 W. Va. 95.

IVisconsin. — Hayes v. Frey, 54
Wis. 503, II N. W. 695.

Burden of Proof. — Evidence Con-
sidered It will be presumed that

the trustee in a deed of trust per-
formed the acts required of him as
conditions precedent to a valid sale,
and the party attacking the sale has
the burden of showing the contrary.
Graham v. Pitts, 53 Miss. 301.

Defect in Notice Given Where

a sale is sought to be set aside on
the ground of a defect in the notice,
the party relying upon the defect has



the burden of proving it. Tartt t.
Clayton. 109 111. 579.

Failure of Trustee To Give Notice
of Sale. — The party seeking to have
a sale under a deed of trust set aside
for failure to give notice of the sale
has the burden of establishing his
ground for relief by satisfactory evi-
dence. Lallance v. Fisher, 29 \V.
Va. 512. 2 S. E. 775-

Departure From Terms of Power.

Slight Proof Required Slight

proof of unfairness or departure from
the deed in making a sale, under a
power of sale, or of a departure from
the terms of the power, is required
to set aside the sale. Longwith z'.
Butler. 8 111. 32.

Action by Second Mortgagee. — Col-
lusion Between Mortgagor and Pur-
chaser. — See Hardwicke v. Hamil-
ton, 121 Mo. 465, 26 S. W. 342.
where the evidence was held insuffi-
cient to sustain a decree in favor of
a second mortgage setting aside a
sale under the prior mortgage on the
ground of collusion between the
mortgagor and the purchaser at such
sale.

Evidence Considered and Held To
Show Regular Sale — Naugher zk
Sparks, no Ala. 572, 18 So. 45;
Hairston v. Ward, 108 111. 87; Dry-
den v. Stephens, 19 \V. Va. i.

Collusion Among Bidders — Evi-
dence considered antl held not to
show fraud and collusion among bid-
ders. Keiser z\ Gammon, 95 Mo.
217. 8 S. W. 377-

Inducing Holder of One of Securi-
ties To Remain From Sale For a

case where the evidence was held
sufficient to warrant the setting aside
of a sale, at the instance of a holder
of one of the securities given under .'i
deed of trust, on the ground of the
plaintiff's fraud in keeping from him
knowledge of the proceedings and

Vol. vni



778



MORTGAGES.



for the property is not sufficient to invalidate the sale in the absence
of fraud or inference of fraud. ^^ However, inadequacy, concurring
with slight additional circumstances, may be sufficient to warrant
the granting of relief/** The mortgagor may show, even as against



inducing him not to be present at the
sale of the property, see Orr v. Mc-
Kee. 134 Mo. 78. 34 S. W. 1087.

17. Inadequacy of Price.

United States. — Anderson v.
White, 2 App. D. C. 408; Bailor v.
Daly, 18 D. C. 175; Wheeler v. Mc-
Blair, 5 App. D. C. 375; Hitz v.
Jenks, 16 App. D. C. 53o; Mutual F.
Ins. Co. V. Barker, 17 App. D. C.
205 -^ Smith V. Black, 115 U. S. 308;
GratTam v. Burgess. 117 U. S. 180;
Cross V. Allen, 141 U. S. 528.

Alabama. — Ward v. Ward, 108
Ala. 278, 19 So. 354.

Arkansas. — Hudgins v. Morrow,
47 Ark. 515, 2 S. W. 104.

California. — Kennedy zk Dunn, 58
Cal. 339-

Colorado. — Scott ?'. Wood, 4 Colo.
App. 341, 59 Pac. 844; Martin v.
Barth, 14 Colo. App. 346, 36 Pac. 72;
Washburn v. Williams, 10 Colo. App.
153. 50 Pac. 22T,; Loveland z'. Clark,
II Colo. 265, 18 Pac. 544; Lathrop v.
Tracy, 24 Colo. 382, 51 Pac. 486, 65
Am. St. Rep. 229.

Illinois. — Weld v. Rees, 48 111.
428; Jenkins v. Pierce, 98 111. 646;
Parmly v. Walker, 102 111. 617; Burns
V. Middleton, 104 111. 411; Cleover v.
Green, 107 111. 67 ; Laclede Bank v.
Keeler, 109 111. 385; Hoyt v. Paw-
tuckett Sav. Inst., no 111. 390; Hood-
less V. Reid, 112 111. 105; Kerfoot v.
Billings, 160 111. 563, 43 N. E. 804.

Kansas. — Means v. Rosevear, 42
Kan. 377, 22 Pac. 319.

Maryland. — Harnickell v. Orn-
dorff, 35 Md. 341 ; Horsey v. Hough,
38 Md. 130; Loeber v. Eckes, 55 Md.
I ; Chilton v. Brooks, 71 Md. 445, 18
Atl. 868; Condon v. Maynard, 71
Md. 601, 18 Atl. 957; Carroll v. Hut-
ton, 91 Md. 379, 40 Atl. 967.

Massachusetts. — King v. Bronson,
122 Mass. 122; Wing v. Hayford, 124
Mass. 249; Learned v. Geer, 139
Mass. 31, 29 N. E. 215; Clark v.
Simmons, 150 Mass. 357, 23 N. E.
108; Austin V. Hatch, 159 Mass. 198,
34 N. E. 95; Stevenson v. Dana, 166
Mass. 163, 44 N. E. 128; Fennyery v.
Ransom, 170 Mass. 303, 49 N. E. 620.

Vol. VIII



Mississippi. — Newman v. Meek,
Freeman Ch. 441.

Missouri. — Landrum ?■. Union
Bank, 63 Mo. 48; Keiser v. Gammon,
95 Mo. 217, 8 S. W. 377; Maloney v.
Webb, 112 Mo. 575, 20 S. W. 683;
Hardwicke v. Hamilton. 121 Mo.
465. 26 S. W. 342; Harlin v. Nation.
126 Mo. 97, 27 S. W. 330; Keith v.
Browning, 139 Mo. 190, 40 S. W.
764; Reynolds v. Kroff, 144 Mo. 433,
46 S. W. 424 ; Markwell v. Markwell,
157 Mo. 326, 51 S. W. 1078.

Nezju York. — • Coudert v. DeLoge-
rot, 62 N. Y. St. 26, 30 N. Y. Supp.
114.

North Carolina. — McNair v. Pope,
100 N. C. 404, 6 S. E. 234; Monroe
V. Fuchtler, 121 N. C. loi, 28 S. E. 63.

Rhode Island. — Nichols v. Flagg,
24 R. I. 30, 51 Atl. 1039; Galvin v.
Newton, 19 R. I. 176, 36 Atl. 3.

5 o u t h Carolina. — Robinson v.
Amateur Ass'n. 14 S. C. 148; Mills
v. Williams, 16 S. C. 593; Ex parte
Alexander, 35 S. C. 409, 14 S. E. 854.

South Dakota. — Trenery v. Amer-
ican Mtge. Co.. II S. D. 506, 78 N.
W. 991.

Tc.vas. — Klein v. Glass, 53 Tex.
27; Seip v. Grinnan (Tex. Civ.
App.), 36 S. W. 349-

IVest Virginia. — Bradford v. Mc-
Conihay, 15 W. Va. 732; Dryden v.
Stephens, 19 W. Va. i [ Corrothers
V. Harris, 23 W. Va. 177; Hope v.
Valley City Salt Co., 25 W. Va. 789;
Lallance v. Fisher, 29 W. Va. 512,
2 S. E. 775-

IFisconsin. — Maxwell v. Newton,
65 Wis. 261, 27 N. W. 31-

18. Inadequacy With Attending
Circumstances.

United States. — U\tz v. Jenks. 16
App. D. C. 530; Graffam z: Burgess,
117 U. S. 180.

Arkansas. — Fry z\ Sweet, 44 Ark.
502; Hudgins v. Morrow, 47 Ark.
515, 2 S. W. 104.

Illinois. — Mapps v. Sharpe, 32 111.
13; Ventres v. Cobb, 105 111. 33;
Equitable Trust Co. v. Fisher, 106
111. 189; Pestel V. Primm, 109 111.
353; Hoodless V. Reid, 112 111. 105.



MORTGAGES.



IV)



a bona Hdc purchaser under a rc^^ulnr sale, that the mortp^ap^e
dcl)t was paul prior to the sale, and therefore that the power was
nullified.'^

C. Suits to Enjoin the Exercise of the Power ok Sale.
One seeking to enjoin the exercise of a power of sale on anv ground
not appearing on the face of the papers under which the power is
attempted to be exercised has the burden of establishing the grounds
of his relief by a clear preponderance of the evidence.-"

D. Effect of Recitals in Trustee's Deed. — The recitals in
a deed of trust to the purchaser of the premises as to a compliance



Maryland. — • Horsey v. Hough. 38
Md. T30; Loeber v. Eckes. 56 IMd.

I : Chilton 7'. Brooks. 69 Md. 584. 16
Atl. 273; Condon v. Maynard. 71
Md. 601, 18 Atl. 957;' Mahoney v.
Mackubin, 52 Md. 357.

Massachusetts. — Briggs v. Briggs,
135 Ma.ss. 306; Thompson v. Hey-
Avood. 129 Mass. 401 ; Learned v.
Geer, 139 Mass. 31, 29 N. E. 215.

Michigan. — Bradley v. Tyson, 33
Mich. 337; Culbertson v. Young, 50
Mich. 190, 15 N. W. 77; Norton v.
Tharp, 53 Mich. 146, 18 N. W. 601.

Minnesota. — Lalor z'. McCarthy,

24 Minn. 417.

Mississippi. — Martin v. Swofford,
59 Miss. 328; Helm v. Yerger, 61
Miss. 44.

Missouri. — Dover v. Kennerly, 44
Mo. 145; Mann z\ Best, 62 Mo. 491 ;
Vail V. Jacobs. 62 Mo. 130; StofYel
7-. Schroeder, 62 Mo. 147; Holds-
worth V. Shannon, 113 Mo. 508, 21
S. W. 85, 35 Am. St. Rep. 719; Orr
V. McKee, 134 Mo. 78, 34 S. W.
1087; Keiser v. Gammon. 95 Mo.
217. 8 S. W. 377-

Nevada. — Runkle v. Gaylord, i
Nev. 100.

New York.- — -Jencks v. Alexander,

II Paige 619; Leet v. McMaster, 51
Barb. 236; Jackson v. Crafts, 18
Johns, no; Murdock v. Empie, 19
How. Pr. 79; Caserly v. Witherbee,
119 N. Y. 522, 23 N. E. TOGO.

Rhode Island. — Fenner v. Tucker,
6 R. I. 551 ; Galvin v. Newton, 19 R.
I. 176, 36 Atl. 3; Babcock v. Wells,

25 R. I. 23, 54 Atl. 596. 599.
South Dakota. — Stacy v. Smith. 9

S. D. 137, 68 N. W. 198.

Tennessee. — Meath v. Porter, 9
Heisk. 224.

Texas. — Klein v. Glass, 53 Tex. i".

West Virginia. — Hope v. Vallev
City Salt Co., 25 W. Va. 789.



JVisconsin. — Encking f. Sim-
mons. 28 Wis. 272; Maxwell z'. New-
ton, 65 Wis. 261, 27 N. W. 31 ; New-
man V. Ogden, 82 Wis. 53. 51 N. W.
1091.

19. Cameron v. Irwin. 5 Hill (N.
Y. ) 272.

In an action by a purchaser to re-
cover land bought at a mortgage sale,
the mortgagor may show that pay-
ments made reduced the sum col-
lectible so that money realized from
a sale of other portions of the land.
previously sold, was in excess of the
amount due, and hence that the
property in controversy was sold un-
der an invalid power. Kirbv f.
Howie. 9 S. I). 471. 70 N. W. 640.

20. Burden of Proof — Before the
grantor can set aside a deed of tru^t
or enjoin a sale thereunder on the
ground that the consideration has
failed, or that it was without consid-
eration, he must make out his case
by a clear preponderance of the evi-
dence. Van Meter z: Hamilton, 96
Mo. 654, 10 S. W. 71-

When a foreclosure is sought to
be restrained on the ground of fraud.
the evidence must be sufficient to
overcome the presumption of hon-
esty. Beard v. Bliley. 3 Colo. App.
479', 34 Pac. 271.

For evidence e.xamined and held
sufficient to warrant the enjoining of
a sale under a deed of trust, as
against a defense of fraud in pro-
curing the obligations secured by
such deed to be exchanged for other
securities, see German Sav. Inst. r.
Jacoby. 97 Mo. 617, 11 S. W. J5().

Legality of Action Is Presumed.
Party Alleging Illegality Must
Prove It. — Moore v. Barksdale
(Va. ), 25 S. E. 529; Muller t'. Stone.
84 Va. 834. 6 S. E. 223. ID Am. St.
Rep. 889.

Vol. YHI



780



MORTGAGES.



with the conditions requisite to a legal sale are prima facie evidence
of the truth of the matters recited. ^^ In some cases, that such re-
citals have any presumptive force is wholly denied,"- and in others
the instrument giving the power of sale must provide for the
making of such recitals in the deed to be executed to the purchaser
before they can be held presumptive of regularity.-^ If the deed of
trust provides that the recitals in the trustee's deed to the purchaser
shall have a particular evidentiary efifect, such efifect should be given
to recitals in favor of purchasers.-* The fact that the trustee's deed



21. Carico v. Kling, ii Colo. App.
349. 53 Pac. 390; Ensley v. Page. 13
Colo. App. 452. 59 Pac. 225; Beal v.
Blair. 33 Iowa 318; Breit v. Yeaton,
101 111. 242; Ingle 7'. Jones, 43 Iowa
286 ; Savings & Loan Soc. v. Deering.
66 Cal. 2S1, S Pac. 353; Wood v.
Lake, 62 Ala. 489; McNeill v. Lee,
79 Miss. 455, 30 So. 821.

A purchaser at a trustee's sale has
the burden in ejectment to establish
his title, but a prima facie case is
made out by the introduction of
liis deed containing recitals or regu-
larity. The defendant's only burden
is to meet this case ; he does not have
the burden of the whole case to show
irregularity. Tyler v. Herring, 67
Miss. 169, 6 So. 840.

In Dryden v. Stephens, 19 W. Va.
I, it was said obiter that the deed
from the trustee reciting a compli-
ance with the terms of the deed of
trust was prima facie evidence of
such fact, and unless overcome by
impeaching evidence would be con-
clusive; and the decision of the court
was that if the grantor delays his
suit to set aside the deed for four
years, charging failure to give no-
tice of the sale, which the answer
denies, and no proof of the notice
is given, pro or con, and the rights
of third parties have intervened, who
for five years since the sale have not
been brought before the court, the
sale will not be set aside.

Effect Limited to Parties and
Privies. — Henderson v. Galloway, 8
Humph. (Tenn.) 691; Wood i\
Lake, 62 Ala. 489.

Deed by Auctioneer of Property.
The recital in a deed, made by an auc-
tioneer under the terms of a power
of sale mortgage, that the terms of
the mortgage relating to the sale have
been complied with, are prima facie
evidence of the truth of the matters

Vol. VIII



recited as against the mortgagor or
parties claiming under him. Naugher
V. Sparks, 1 10 Ala. 572, 18 So. 45 ;
Tartt V. Clayton. 109 111. 579.

Disqualification of Trustee A

recital in an instrument executed by
the beneficiary in a deed of trust,
substituting a trustee, that the trus-
tee named in the deed had become
disqualified to act under the same, is
not to be received as evidence of
such disqualification as against a
stranger to the instrument. Leech v.
Karthaus (Ala.), ^y So. 696.

No Presumptive Force Without
Possession. — The burden is on the
purchaser from a personal repre-
sentative of the trustee in a deed of
trust to show that the conditions
made a prerequisite to the power of
sale have been complied with. The
recitals in the deed executed by such
representative of a compliance with
conditions prerequisite to the exer-
cise of the power assumed are not
prima facie evidence of such com-
pliance where the purchaser has not
had possession under his deed. Sul-
phur Mines Co. v. Thompson, 93 Va.
293. 25 S. E. 232.

22. In Gibson v. Jones, 5 Leigh
(Va.) 370, is a diction to the efifect
that a party claiming under a deed
with recitals must prove their truth,
which is followed by Norman v. Hill,
2 Pat. & H. (Va.) 676.

23. Deed to Trustee Hust so Re-
cite Vail 7'. Jacobs, 62 Mo. 130;

Neilson v. Chariton Co., 60 Mo. 386.

24. Effect as Provided for in
Mortgage or Deed of Trust. — Cali-
fornia. — Carev v. Brown, 62 Cal.
2,72,.

Colorado. — Bent-Otero Imp. Co.
V. Whitehead. 25 Colo. 354, 54 Pac.
1023, 71 Am. St. Rep. 140; Mosca
Mill. & Elev. Co. V. Murto (Colo.
App.), yz Pac. 287.



I




MORTGAGES.



781



to the purchaser recited particularly certain essentials and omitted
others relating to notice does not repel the conclusion that the no-
tice was good where the deed did not purport to set out all that the
notice contained.^'"'

E. Supplying Admissions by Parol. — Where the deed executed
by the trustee to the purchaser fails to recite any matter required bv
the deed of trust to be recited the omission may be supplied by evi-
dence dehors the instrument. ^^

F. Statutory Mode of Proof. — Notwithstanding the statute
provides for proof by affidavit of matters relating to the sale, the
statutory means of proof is not exclusive, and the same matters may
be established by competent common-law evidence.-'' Nor is the
affidavit conclusive of the matters stated,^^ except as against the



Missouri. — Carter t. Abshire, 48
Mo. 300; White v. Stephens, 77 Mo.
452: Wells V. Estes, 154 Mo. 291.
55 S. W. 255.

Texas. — Jesson v. Texas Land &
Loan Co., 3 Tex. Civ. App. 25, 21 S.
W. 624; McCreary v. Reliance Lumb.
Co., 16 Tex. Civ. App. 45. 41 S. W.
4S5; Swain V. Mitchell. 27 Tex. Civ.
App. 62, 66 S. W. 61 ; Allen v. Court-
ney, 24 Tex. Civ. App. 86. 58 S. W.
200.

25. Tartt v. Clayton. 109 III. 579.

26. Place of Sale, — Wilkcrson v.
Allen. 67 Mo. 502.

Extrinsic Evidence of Matters
Omitted From Trustee's Deed. — If



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