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LARRY NEAL McCORMICK v. KATHERINE JUNE McCORMICK

MAY 02, 1984

LARRY NEAL McCORMICK
v.
KATHERINE JUNE McCORMICK



BEFORE ROY NOBLE LEE, PRATHER AND SULLIVAN

PRATHER, JUSTICE, FOR THE COURT:

The legality of procedure in a partition sale of real estate is the subject matter of this appeal. The parties, former husband and wife, were owners of the realty. The Chancery Court of Oktibbeha County ordered a public partition sale of their two lots because of inability to partite the

property in kind, which sale was held. The appellant, Larry Neal McCormick, appeals from the court's confirmation of that sale charging that the sale was contrary to the law and the court's order and was for an inadequate consideration. We affirm the trial court.

 I.

 A commissioner appointed by the trial court advertised for sale, within legal hours, at public auction, for cash two lots in Oktibbeha County.

 Upon one lot was constructed a dwelling which was subject to two deeds of trust. The first deed of trust, in the approximate amount of $34,000 was assumable only by the parties here. The amount of the second deed of trust is not reflected in the record, although appellee's brief suggests the amount to be approximately $1,300.

 The second lot was vacant and subject to an existing indebtedness of approximately $11,000. An announcement was made at the sale of the encumbrances, but the exact amounts were unknown to the commissioner or parties.

 The sale was conducted on the inside of the courthouse at the south front door. Mr. McCormick did not bid for either lot. Mrs. McCormick bought the home for a bid of $5,000 over the balances of the deeds of trust. A third party offered $7,500 for the vacant lot, but withdrew the offer and substituted a bid of $100 when told that he would have to pay off the existing $11,000 indebtedness. The purchase price for both sales was paid by cashier's check from both bidders.

 II A.

 Appellant challenges the procedural conduct of the sale in two aspects: the place of the sale and the acceptance of a check for the purchase price by the commissioner.

 Does the commissioner violate the court's order or the statutes when the sale is conducted on the interior of the front door of the courthouse rather than the exterior when the published notice asserts that the sale would be" at the south front door of the courthouse of Oktibbeha County "?

 Mississippi Code section 11-5-93 (1972) controls the conditions for judicial sales of real estate.

 Sales of realty under decrees

 Every sale of real estate ordered by a decree of any court of chancery shall be made for cash, unless otherwise ordered by the court, and at such place and on such notice as may be directed in the decree; and if direction be not given, at such place and on such notice ...


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