State v. Sullivan

• Decision Date: 26 May 1902
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI v. RUFUS E. L. SULLIVAN

32 So. 55

80 Miss. 596

STATE OF MISSISSIPPI v. RUFUS E. L. SULLIVAN

Supreme Court of Mississippi

May 26, 1902

March 1902

FROM the circuit court of Winston county. HON. GUION Q. HALL Judge.

Sullivan the appellee, was indicted, under code 1892, § 1184, for that he did "sell and dispose of" certain property upon which he had executed a mortgage. The indictment showed that the mortgage debt matured on the 15th of December, 1899 and the selling was averred to have been committed December 2, 1899. Defendant demurred to the indictment; the court below sustained the demurrer, and the state appealed to the supreme court.

Affirmed.

Monroe McClurg, Attorney-General, for appellant.

The court should not have sustained the demurrer to the indictment, because the indictment is properly drawn and charged an offense, the commission of which is prohibited by § 1184, code 1892. Every separate offense in this statute is mentioned in clauses connected only by the disjunctive conjunction "or," properly set off by commas, indicating each act which may be a violation of the statute. If the English language under proper construction, taking into consideration the rules of grammar, rhetoric, and composition, means anything, this indictment certainly charges a violation of § 1184, code 1892.

George Richardson, for appellee.

The gist of the indictment is, that the defendant executed a mortgage on the 17th day of November, 1899, to secure the beneficiaries on personal property. The mortgage was due and payable December 15, 1899, that before the maturity of the mortgage the defendant, within the county, sold the property, set forth in the indictment without the consent of the beneficiaries, and without discharging the mortgage. The indictment charges no offense under the statute. The indictment is evidently framed under § 1184, code 1892. The defendant held rights in the property. The condition of his mortgage had not been broken, and the debt had not become due.

Defendant could sell his equity of redemption, and upon this there was no lien. Therefore, as rightfully held by the lower court, the indictment could not be sustained under § 1184, code 1892, and the court below rightfully sustained the demurrer.

OPINION

TERRAL, J.

The lien upon property of a deed of trust is discharged by the payment of the debt secured thereby. The debt is the principal thing; the lien is but an incident to it; and the grantor...