Tuteur v. Brown

• Decision Date: 12 April 1897
• Citation: 21 So. 748,74 Miss. 774
• Court: Mississippi Supreme Court
• Parties: ABRAHAM TUTEUR v. R. D. BROWN ET AL

21 So. 748

74 Miss. 774

ABRAHAM TUTEUR v. R. D. BROWN ET AL

Supreme Court of Mississippi

April 12, 1897

March 1897

FROM the chancery court of Madison county HON. H. C. CONN Chancellor.

Branigan owned the land in controversy, and executed a mortgage upon it to Garrison. At the maturity of the mortgage debt Garrison, more than ten years before this suit was begun took possession, and, while in possession, he mortgaged the premises to Brown, and, at the maturity of the debt to Brown, the latter took possession from Garrison, and is yet in the actual occupancy of the place. There was no pretense of any acknowledgment of the mortgagor's (Branigan's) title or right within ten years before Suit begun. Branigan, more than ten years after he had surrendered the possession of the land, conveyed his interest therein to appellant, who began to assert ownership, and Garrison and Brown filed their bill in this case to cancel the deed to appellant as a cloud on the title. Appellant's demurrer to the bill being overruled by the court below, he appealed.

Decree affirmed.

W. H. Powell, for appellant.

The maxim, "once a mortgage, always a mortgages" applies. 15 Am. & Eng. Enc. L., 725 and notes. The equity of redemption cannot be restrained or cut off by agreement. The attempt to do so in the mortgages at bar are void. Ib., pp 791, 792, and note 8. The right cannot be waived, Ib., p, 827; Pingrey on Mort., vol. 1, pp. 48, 49, 55; 24 Miss. 376; 40 Miss. 469. Garrison is the mortgagee of Branigan, and Brown is the mortgagee of Garrison. Their possession exists only for the protection of their security for the collection of their debts, and, when done, they should have returned the possession of the property to Branigan or his vendee, Tuteur. Pingrey on Mort., vol. l, pp. 12, 13, 14. It was held in 54 Miss. 357, that when the mortgagee enters, he holds so as to realize out of the income his debt, and when that has been satisfied, he holds, as trustee, for the mortgagor, to whom he shall account.

Surely, it will never be held by this court that a trustee can, under the circumstances of this case, invoke the aid of a court of equity to fortify his title by a claim of adverse possession against his cestuis que trust. It was the duty of Garrison to his mortgagor, Branigan, when he took possession, to receive the rents of the property and apply them to the payment of the secured debt, and, when paid, to have returned the possession to Branigan. He failed in his duty, and now seeks the aid of a court of equity to justify him in a breach of duty, by confirming his claim of title by limitation. Equity, in such a case, will leave the complainants where it finds them, and to do that will necessitate the sustaining of the demurrer, and a dismissal of the bill. It is absolutely certain that appellees have no standing in this case, unless they can rest upon the statute of limitations, and they being the moving actors, cannot invoke the aid of equity for such purpose. It was their duty to have given distinct notice to Branigan that they intended to assert a hostile title to him, before the statute of limitations could begin to run.

J. W. Downs, for the appellee.

Garrison took possession, and held the lands...