Wall v. Harris

• Decision Date: 10 June 1907
• Citation: 90 Miss. 671,44 So. 36
• Court: Mississippi Supreme Court
• Parties: AUGUSTA W. WALL ET AL. v. JOHN W. HARRIS

44 So. 36

90 Miss. 671

AUGUSTA W. WALL ET AL. v. JOHN W. HARRIS

Supreme Court of Mississippi

June 10, 1907

March 1907

FROM the chancery court of Marshall county, HON. JULIAN C. WILSON Chancellor.

Harris appellee, was complainant in the court below; Mrs. Wall and others, appellants, were defendants there. The demurrer of defendants to the bill of complaint was overruled and they appealed from the decree overruling it to the supreme court.

Affirmed and remanded.

Smith &amp Totten, for appellants.

The remedy on mortgages is barred when the debt is barred. Code 1906, § 3093; Code 1892, § 2733.

The indebtedness secured by the deed of trust being an ordinary promissory note, the statute of limitations of six years applied to it. The note was given on the 1st day of January, 1892, and became barred on the 4th day of January, 1899.

The sale being void, and appellee being barred, he holds the land as a trespasser, pure and simple.

The statute of limitation of ten years' adverse possession began to run in appellee's favor on the 1st day of January, 1898, and continued thus to run until the bringing of the ejectment suit against him, a period of less than ten years. Now, had the statute of ten years become complete in favor of appellee, before the bringing of this suit, then the sore on appellee's title would have healed, and his title have become perfected; but on January 1, 1899, his right of action on the note became barred. Had the ten years' statute applied, then the right of these appellants would have been lost, and we desire to ask if the law is more tender in enforcing one statute of limitations than another. Are not appellants' rights to the benefit of the six ears' statute of limitation as equitable, when it has matured, as would be appellee's right to quiet title under the ten years' statute of limitation, if the same had matured?

If appellee, without any pretense of right, had gone into the possession of appellant's land and held for ten years adversely, his title would have become absolute by the vis major of the statute. This way of acquiring title has no equity with it, but it is in accordance with the statute. Will the law permit appellant to put in motion a statute of limitation in his favor, and not hold him responsive to the statute that runs against him at the same time? Is it right to allow the statute to run in his favor and to stay the effect of the statute that runs against him?

A cestui que trust cannot by law become a mortgagee in possession. Jones on Mortgages, sec. 719. Certain circumstances may, however, occur whereby the law may treat him as such; but it can only arise out of the peculiar conditions of facts in a given case, by applying the doctrine of estoppel upon facts justifying the same. There is nothing in this case to give place to the doctrine of estoppel. The learned chancellor in the court below based his decision in this case on the case of Lucas v. Mortgage Co., 72 Miss. 366, S.C., 16, So. 358. The facts in this case are entirely different. Here the pretended sale was made on the 4th day of September, 1897, ignoring the requirements of chapter 96, Laws 1896, regarding sales by substituted trustees under deeds of trust. The appointment of the substituted trustee not having been spread at large upon the records, or by separate instruments recorded, etc. This statute renders that sale void, and Code 1906, § 2773 (being Laws 1896, ch. 96, brought forward), denounces it as absolutely null and void, both at law and in equity.

In conclusion, we submit that appellee knew or should have known from the first that he acquired no title to the land under the sale. It was his act in procuring the illegal sale, and he was alone responsible for the nature of the title that he got thereunder; and he should not now be heard in an attempt to make valid his illegal taking of appellants' property, in open violation of the statute.

Again, we submit, that while at common law the legal estate vested in the mortgagee, and was forfeited upon default of payment of the indebtedness thereby secured, our statute has changed this, and the mortgagor is deemed the owner of the legal title, and when the debt is barred, the remedy in equity on the mortgage is likewise barred. Code 1892, § 2733, Code 1906, § 3093.

Further, it would be unjust to appellants in this case to apply the doctrine of a mortgagee in possession, as appellee has never, since he took possession of the land, recognized that he held the same in trust for the appellants, as is the case required of mortgagees in possession. Jones on Mortgages, sec. 10.

Mayes & Longstreet, for appellee.

The demurrer raises two questions: 1. Whether the statute of limitations runs against the debt to a mortgagee in possession, and 2, whether, even if so, the right to have a foreclosure sale by judicial decree is, in Mississippi, always barred when the debt secured is barred by the statute of limitations, or, whether under circumstances where an actual or constructive fraud would be thereby effected, the defendants may not be eqitably estopped to set up the bar.

It is well settled that a mortgagee who obtains possession peaceably, will not be dispossessed until the debt is fully paid; and this principle is not to be avoided by the fact that the personal liability on the debt is barred. "The mortgagee may maintain such possession against the mortgagor and every person claiming under him subsequent to the mortgage, subject to be defeated only by the payment of this debt." Cook v. Cooper, 18 Ore., 142. See also, Helm v. Yerger, 61 Miss. 44- 51; Den v. Wright, 7 N.J.L. 175; Frank v. LeRoy, 49 Calif., 314; Spect v. Spect, 13 L. R. A., 137; Fountain v. Brooks Strader, 141 Ill. 461.

The question here is not as to the right of a mortgagee out of possession to have judicial foreclosure; but the different question of whether the statute runs at all against the right to proceed in rem while the mortgagee is rightfully in possession. We submit that it does not. The peaceable possession by the mortgagee is analogous to the filing of a bill for foreclosure, so far as the running of the statute of limitations is concerned, and suspends it as in the case of the filing of a bill. McDonald v. Vinson, 56 Miss. 497.

Code 1892, § 2733, relied on by appellants, does not govern this case, but has relation to the independent...