Bates v. Snider

59 Miss. 497 | Miss. | 1882

Campbell, J.,

delivered the opinion of the court.

The court erred in granting the second instruction for the plaintiff, and in refusing the first asked by the defendant. Payment of the debt secured by the deed of trust would extinguish it, and the right of the trustee to the possession of the property it conveyed ; and the judgment should have been for the property or its value, not to exceed the sum w'hich would discharge the legal demand of the trustee, so that the defendant might satisfy the judgment by paying the legal charge upon it, and thereby keep the property. It would be a vain thing to award to the trustee the possession of a large amount of property, or a large sum of money, to pay a small sum, and immediately thereafter to return the surplus to the defendant. If a restoration of property withheld from the trustee, or payment of its value to an amount equal to what he is entitled to realize from it, is adjudged to him, he has no cause for complaint. Nor should the beneficiary complain, because this is the full measure of his rights under the deed of trust. That the beneficiary is not the plaintiff in the action does not preclude inquiry as to the amount for which the deed of trust is a security. If all had been paid, the defendant could show that, and thereby defeat a recovery by the trustee, who, in that case, would be functus officio, and, if part has been paid, or no payment has been made, the sum due may be shown, in order to limit the pecuniary recovery by the trustee. It was proper in this ease to fix the sum of money the payment of which would discharge the security which gave the trustee the right to maintain his action. For the error on this subject,'we reverse the judgment, and remand the case for a new trial.

Judgment accordingly.