Easter v. Riley

79 Miss. 625 | Miss. | 1901

TERRAL, J.,

delivered the opinion of the court.

The bill of complaint in this case is based upon a mortgage with a power of sale, which is made an exhibit to the bill. The mortgage was dated April 25, 1894, to secure an indebtedness of $250, due November, 1894. The bill of complaint was filed April 19, 1899. Tbe bill alleges a due execution of the mortgage, and the sale of the land thereunder by a substituted trustee, a purchase thereof by Riley, and a conveyance of it to him by said trustee. It alleges that Easter, notwithstanding the sale, claims some title to the property, and refuses to give possession to plaintiff. It prays that the claim of Easter may be removed as a cloud upon complainant’s title, and for a writ of assistance to put him in possession. By the answer of Easter it appears for the first time that the substituted trustee, who made the sale of the property,, was-appointed under the bare hand of Riley, and that his authority for making such appointment prescribed that it should be done under his hand and seal. Complainant thereupon, conceding the invalidity of his assumed legal title under the sale by the substituted trustee, moved the court to amend the prayer of his bill by praying that, if his title be considered defective because said substituted’ trustee was not appointed under his hand and seal, then that the legal title to said land be by the court vested in the clerk of the court as master, and for a sale of it to pay complainant the sum found to be due him upon said indebtedness. This motion to amend the prayer of the bill was made in November, 1891, when an original bill to foreclose said mortgage would have been barred by the statute of limitations of six years, and objection was made to the amendment because it was said the frame and essential features of the bill were changed by the proposed amendment. Notwithstanding the objection, the amendment was made, and Riley had a decree foreclosing his mortgage, and this appeal presents the above amendment as an error of the court in the case. The bill, though one in form to remove clouds from title, set up and presented complainant’s mortgage, under which he founded his right to relief, and in its averments and structure it contained every material allegation necessary to foreclose it as a mortgage, if the sale made under it was found to be defective. By the answer of Easter it appeared that the foreclosure in pais was defective, and passed no title, and tbe alternative aspect of tbe bill was properly looked into by tbe court in order to give complainant a suitable remedy. Tbe structure of tbe bill of complaint, in effect, was to enforce whatever rights Riley bad under tbe mortgage containing this power of sale, and tbe amendment made, if needed, did not, in our view of tbe matter, change tbe frame and essential features of tbe bill as originally filed, and it was not obnoxious to tbe objection made to it.

Affirmed.