Butler v. Scottish-American Mortgage Company

• Decision Date: 29 June 1908
• Citation: 46 So. 829,93 Miss. 215
• Court: Mississippi Supreme Court
• Parties: RALPH P. BUTLER ET AL v. SCOTTISH-AMERICAN MORTGAGE COMPANY

46 So. 829

93 Miss. 215

RALPH P. BUTLER ET AL v. SCOTTISH-AMERICAN MORTGAGE COMPANY

Supreme Court of Mississippi

June 29, 1908

March 1908

FROM the chancery court of Franklin county, HON. J. S. HICKS Chancellor.

The Scottish-American Mortgage Company, appellee, was complainant in the court below; Butler and others, appellants, were defendants there. From a decree overruling defendants' demurrer to the complainant's bill the defendants appealed to the supreme Court.

The Scottish-American Company sued out an injunction against Butler and others to restrain them from prosecuting an action of ejectment brought by them against it and others. The bill of complaint set forth that, in 1888, one Nathan Bunckley since deceased, executed a deed of trust upon certain described real estate to secure an indebtedness due from him to the Mortgage Company, and that, after default in payment of the indebtedness, the deed of trust was foreclosed, and at the foreclosure sale in 1892 the real estate was bought by one Judah in trust for the Mortgage Company, who subsequently, in 1894, conveyed it to one Shelton, who, in turn, in 1895, conveyed it to one Jones; that afterwards, in 1897, Jones reconveyed the property to Shelton, and, in 1899 Shelton conveyed it to the Scottish-American Mortgage Company. That the parties named as holding under the foreclosure sale have had actual possession of the property since 1893, receiving from it rents and profits. In 1907 the defendants, Butler and others, claiming to own the real estate by inheritance from the aforesaid Bunckley, instituted an action of ejectment for the land in the circuit, court of the county against the Mortgage Company and its eleven tenants. The bill further alleged that the defense of the Mortgage Company, and those in privity with it, were equitable in nature and such as cannot be made in a court of law to the ejectment, being that the Mortgage Company bought the property at the foreclosure sale in 1892 under the original deed of trust, executed by Bunckley, for the purpose of satisfying the indebtedness due it by Bunckley; and that if the foreclosure sale should be held not to have conveyed a valid title, then the indebtedness of Bunckley, secured as aforesaid, had never been paid, and the Mortgage Company had the rights of a mortgagee in possession, after condition broken, and the real estate should be sold to satisfy whatever indebtedness might, be found due under the deed of trust. The bill prayed, in order to prevent a multiplicity of suits, and that the rights of the Mortgage Company, and of all parties concerned might be adjudicated in one suit, that defendants be enjoined from prosecuting the ejectment suit.

The defendants demurred to the bill, assigning as grounds of demurrer (a), that the bill showed defenses cognizable in a court of law; and (b), that the Mortgage Company sought to enjoin the prosecution of the action of ejectment before submitting to a judgment therein.

Reversed and remanded.

McKnight &...