Brown v. Yarbrough

94 So. 887 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

Appellant, I. N. Brown, sued appellee, L. H. Yarbrough, in the circuit Court of Madison county for the fifty dollars penalty as well as actual damages provided by section 2781, Code of 1906 (Hemingway’s Code, section 2285), for a failure to enter satisfaction upon notice as required by said statute upon the margin of the record of a deed of trust appellant had previously given appellee to secure an indebtedness from the former to the latter of twenty-five thousand dollars.. There was a trial and directed verdict in favor of appellee, from which appellant prosecutes this appeal.

There is no conflict in the evidence as to the controlling-facts, which are as follows: Appellant being indebted to appellee in the sum of twenty-five thousand dollars, executed a deed of trust on a large amount of real and personal property in Madison county to secure the same, which deed of trust was duly placed upon record in said county. However, before it was filed for record, appellee, for the purpose of securing a large indebtedness he was due to one J. L. Hart, assigned said deed of trust to said Hart by simply entering such assignment on the margin of said deed of trust and signing the same, said assignment being-in the following language:

“Assigned and transfered to J. L. Hart as collateral and security on my note dated October 4, 1914, for $35,000. [Signed] L. H. Yarbrough.”

When the deed of trust was recorded this assignment was transcribed by the clerk as a part of the record of the deed of trust; Appellant paid appellee the indebtedness in full secured by said deed of trust. Before doing so, however, appellant went to the assignee of said deed of trust, J; L. Hart, and got his permission to settle said indebtedness with appellee. Appellant gave appellee the notice prescribed by said statute, section 2781, Code of 1906 (Hemingway’s Code, section 2285), to enter satisfaction on the margin of the record of said deed of trust in the manner provided by said statute. Appellee promised after the receipt of such notice to comply with appellant’s request, but failed to do so. Thereupon appellant brought this suit for the penalty and unliquidated damages provided for in the said statute. The statute in question is in this language:

' “Any 'mortgagee or cestui que trust, or the assignee of any mortgage or cestui que trust, of real or personal estate, having received full payment of the'money due by the mortgage or deed of trust, shall enter satisfaction upon the margin of the record of the mortgage or deed of trust, which entry shall be attested by the clerk of the chancery court and discharge and release the same, and shall bar all actions or suits brought thereon, and the title shall thereby revest in the grantor. And if such mortgagee or cestui que trust, or such assignee, by himself or his attorney, shall not, within one month after request, cancel on the record the said mortgage or deed of trust the beneficiary shall forfeit the sum of fifty dollars, which can be recovered by suit on part of the party aggrieved, and if, after request, he fail or refuse to make such acknowledgment of satisfaction, the person so neglecting or refusing shall forfeit and pay to the party aggrieved any sum not exceeding the mortgage money, to be recovered by action; but such entry of satisfaction may be made» by any one authorized to do it by the written authorization of the mortgage or beneficiary, and shall have the same effect as if done by the mortgagee or beneficiary.”

Appellant’s contention is that appellee alone was under duty to enter satisfaction of the deed of trust in question; that the assignee, Hart, if he had any interest it was a mere equitable interest; that the legal title to the note and deed of trust was in the appellee, and that therefore he alone had the power and was under the duty to comply with the statute. On the other hand, appellee contends that the statute in question should be strictly construed, being' highly penal, and that, although said Hart, who held the note and deed of trust by assignment, had consented that appellant pay off and discharge the same to appellee, still said Hart had the legal title to said indebtedness, and therefore he alone had authority to cancel said deed of trust and enter the satisfaction on the record required by said statute.

In construing this statute in Mortgage Co. v. Burke, 80 Miss. 643, 32 So. 51, the court said, among other things: “If it be said that we are standing too strictly upon the letter of the statute, the reply is we do so because the action is given solely by the letter of the statute. Upon compliance with the letter appellees may recover; without it, they cannot.”

Appellee contends, however, that the legal title to the indebtedness secured by this deed of trust was not in the said J. L. Hart because there is nothing to show that the indebtedness was ever transferred to him; that by the assignment from appellee to said Hart the former only assigned the deed of trust. All wall concede (this court has so held time and again) that the transfer of an indebtedness secured by a deed of trust carries with it the security. Why should not the converse be true? There is just as much reason for it, especially Avhere that was the intention of the parties, although unexpressed in the assignment. If this is not true the transfer of the deed of trust would be a vain and fruitless thing, for the assignee would get nothing. As we understand, this court has so held in West v. Union Naval Stores Co., 116 Miss. 743, 77 So. 609, and there can be no doubt but, under section 717, Code of 1906 (Hemingway’s Code, section 496), the assignee of a chose in action gets the legal title with the right to sue thereon. We conclude therefore, that the assignment vested the assignee, Hart, with the legal title to said indebtedness and its security, and, notwithstanding said indebtedness had been paid and discharged in full with Hart’s consent, still he was at least the holder of the naked legal title théreof and until divested of the same he alone had the power to comply with the statute. But conceding that the statute does not cover .one in Hart’s attitude, still construing the statute strictly as must be done, appellee was without power to comply therewith because certainly he did not have the legal title, although vested with the full equitable interest. We are unáble to see the application of Coon v. Robinson Mercantile Co., 110 Miss. 700, 70 So. 884, relied on by appellant.

Affirmed.