Elder v. Jones

• Decision Date: 19 January 1914
• Docket Number: 16280
• Citation: 64 So. 212,106 Miss. 489
• Court: Mississippi Supreme Court
• Parties: B. R. ELDER et al. v. R. G. JONES

64 So. 212

106 Miss. 489

B. R. ELDER et al. v. R. G. JONES

No. 16280

Supreme Court of Mississippi

January 19, 1914

APPEAL from the circuit court of Union county, HON. H. K. MAHON Judge.

Suit by R. G. Jones against B. R. Elder and others.

From a judgment for plaintiff, defendant appeals.

The appellee was plaintiff in the court below and appellant was defendant. Suit was begun in replevin to recover possession of certain mules alleged to be wrongfully withheld from the possession of the plaintiff. In addition to the facts set out in the opinion, it appears that the plaintiff had taken up a note of defendants due the Bank of Ecru, and there is testimony in the record to show that the lien held by the Bank of Ecru to secure its indebtedness covered other mules than those embraced in the bill of sale securing the indebtedness to King which Jones also paid off. Under instructions of the court the jury were permitted to include both the indebtedness to King and the indebtedness to the Bank of Ecru in their judgment and also to assess damages.

Reversed and remanded.

C. Lee Crum, for appellant.

The mortgage authorizes H. D. King, in the event he does not take possession of the property and sell it, to appoint some one else to do so. Here is shown a further confidence and trust reposed in him, or his person, by the appellant as grantor in executing said mortgage. The statement that the mortgage shall be security to H. D. King, "and his assigns" means no more under our law than if the statement "and his assigns" had been omitted, for the simple reason that an assignment of the security notes would carry with it an assignment of the security. But the special trust and confidence delegated to H. D. King by the grantor to act himself in closing out the mortgage, or to appoint some one to act as trustee, is not delegated to Jones by an assignment of the notes to him. It is true there appears a written transfer of the mortgage on its back, but this is in nowise an appointment of R. G. Jones as trustee to foreclose the same, and is itself entirely superfluous, because a transfer of the notes transfers also the security.

I quote from Cyc., p. 1286 (h): "A mortgage is distinct from the debt, which it seems is not a thing of value nor fit subject of transfer; hence an assignment of the mortgage alone without the debt, is nugatory and confers no rights whatever upon the 'assignee.'"

Again on the same page (i): "The debt secured being the principal thing, and the mortgage only an incident or accessory to it, a proper assignment of the debt will carry with it the mortgage, and the assignors will have no further interest in the security than to hold it as trustee for the assignee of the debt."

And on page 1287 (II): "When the debt secured by a mortgage is evidenced by bond or note, the formal assignment of the one or the transfer of the other by endorsement, or by mere delivery, will carry to the assignee the full benefit of the security and all the rights and remedies of an equitable owner of the mortgage."

So, in the case at bar, appellant had executed his four separate promissory notes which were each secured by this mortgage and if these notes had been transferred to four several assignees instead of one, each assignee would look to the mortgage as security for his note.

27 Cyc., 1289 (IV) I quote: "When several notes secured by one mortgage are transferred to different parties such transfer amounts to a proportional transfer of the mortgage."

In case these notes had been transferred to four several assignees it would hardly be contended that each and every one of them would have a right to take possession of the property and each sell it, but the proper way would be to have the trustee, if there was one, sell the property and apportion the proceeds to the payment of the notes assigned to the several parties, or to have the chancery court appoint a commissioner to effect this result under its directions.

The court will also please turn to 27 Cyc., page 1299 (e): Under this section it appears that in those states, such as Alabama, for instance, where there is a statute giving the assignee the right to foreclose, it may be done, as an act of trust and confidence to the mortgagee. Mississippi has no such statute, and under the common law no such right passes to the assignee. The latter part of the above section referred to concludes: "And an assignment will not carry a power of sale which was so expressed in the mortgage as to be personal to the mortgagee as such: 'or his representative or attorney,' without meaning 'assigns.'" See Ward v. Ward, 19 So. 354.

Therefore, the assignment of the notes and the mortgage in the case at bar did not assign to R. G. Jones the right to sell thereunder nor appoint him to act as trustee, which was given only to H. D. King, and such as he should specially appoint to so act. I very much question King's authority to act in this fiduciary capacity after his interest in the notes secured passed to Jones; and certainly Jones, not being designated to so act by the transfer, has no right to the possession of the mules, and cannot sell them as trustee under the mortgage. The only power he has must be stipulated in the mortgage, and it shows no authority in him to act as trustee. Shipwith v. Robinson, 24 Miss. 688; Ready v. Hamm, 46 Miss. 422; Cox v. Amer. Freehold Co., 40 So. 739; Watson v. Perkins, 40 So. 643; Guion v. Wilson, 42 Miss. 77; Clark v. Wilson, 53 Miss. 119; Allen v. Alliance, 36 So. 285, 84 Miss. 319; Fuller v. Davis, 63 Miss. 825, 13 So. 241.

The court will please note especially the observation of Judge CALHOUN in concluding his opinion in Allen v. Alliance Trust Co., 36 So. 287, 84 Miss. 319. It appears very clear, since in this suit in replevin the question involved was that of the right of the appellee to the immediate possession of the two mules in controversy, that this mortgage, which shows no right in appellee to possession, should have been excluded when objected to by appellant. If Jones has no right to possession the case should have been decided by the court for the appellant, and must now be reversed by this court.

Jones & Knox, for appellee.

The doctrine of delectus personae does not apply in this case, as there was no trustee appointed as was the case in Allen v. Alliance Trust Company, 36 So. 278, 84 Miss 319, and the other Mississippi cases cited by counsel for appellee, wherein there was a trustee appointed and named by the mortgagor, whose duty alone it was to carry out the terms of the instrument. No special trustee was named in the instrument under which the assignee claims, in the case at bar; nor is there any question therefore of substituted trust; or substituted trustee or legal representatives, as in the case of Fuller v. Davis, 63 Miss. 78, 13 So. 241.

Appellee proceeded to seize and take possession under his express rights under the instrument of appellant Elder, while in the case of Clark v. Wilson, 53 Miss. 119, the terms appointing W. W. Mangrum trustee were wholly disregarded, and contrary to the express terms another was...