Butler v. Lee

54 Miss. 476 | Miss. | 1877

Campbell, J.,

delivered the ppinion of the court.

If the condition of the deed of trust had been broken when the claim of the trustee to the mule was interposed, the issue should have been determined in favor of the claimant; otherwise, not. Before sale under a mortgage or deed of trust, the mortgagor or grantor is deemed the owner of the legal title of the property conveyed, except as against the mortgagee or trustee, after the breach of the condition of such mortgage or deed of trust. Code, § 2295.

After breach of the condition, the mortgagee or trustee is entitled to the possession of the property, in order to make available his security. If he is entitled to possession, no one can have the right to withhold it from him. Except under the special circumstances, provided for by § 855 of the Code, a levy on personal property cannot be made without taking possession of it. The right of the mortgagee or trustee, after breach of the condition of the mortgage or deed of trust, to the possession of the property, and of the sheriff to it by virtue of process, cannot coexist. One must be superior to the other. Manifestly the claim under the execution issued upon a judgment junior to the rights of the trustee or mortgagee must yield to his superior rights, or it would occur that the paramount right must yield precedence to the subordinate; The equity of redemption in real estate may be sold under execution against the mortgagor or grantor, at any time before foreclosure, as held in Byrd v. Clarke, 52 Miss. 623 ; for the possession is not affected by a levy of execution, but as the sheriff must be able to take possession of personal property in order to a levy, it results that he cannot seize and hold it against the paramount right of the mortgagee or trustee to possession after breach of the condition of the mortgage or deed of trust. Before breach of condition the sheriff could hold possession, because the legal title is deemed to be in the mortgagor or grantor in the deed of trust; and after breach of condition, before a sale under the mortgage or deed of trust, he could hold possession as against all but the holder of the mortgage or deed of trust, because before a sale the mortgagor or grantor in a deed of trust is owner of the legal title except as against the mortgagee or trustee. In case of a trial of the right of property subject to a mortgage or deed of trust seized under execution, resulting against the claimant under the mortgage or deed of trust, the true value of the property in excess of the debt it secured, being all that could be subjected to execution, would furnish the measure^of the rights of the plaintiff in the execution.

In this case the burden was on the plaintiffs in the execution to show the liability of the mule to the execution as against the claimant, and, having failed to show whether the condition of the deed of trust was broken or not before the claim was interposed, they failed to show the right of the sheriff to hold the mule as against the deed of trust.

Judgment reversed and cause remanded.