Freeman v. Cunningham, 57 Miss. 67

Freeman v. Cunningham

57 Miss. 67 | Miss. | 1879

Campbell, J.,

delivered the opinion of the court.

In Griffin v. Sheffield, 38 Miss. 359, it was held that a recovery by the plaintiff in ejectment could not be defeated by showing that the defendant had acquired an outstanding title, which was barred by the Statute of Limitations, at the time of such acquisition. In Heard v. Baird, 40 Miss. 793, it was decided that the estate of the mortgagor or the grantor in a deed of trust which was extinct by lapse of time, was not such a legal estate as would support an action of ejectment, because a legal title is necessary to maintain ejectment; and it was said that the deed of trust had the effect to divest the grantor of his legal title, and if it had not been vested in him before the institution of the suit, no matter how long a period had elapsed, he could not maintain ejectment. We cannot sanction this view.

It is undeniable that the plaintiff must have the legal, as contradistinguished from an equitable title, in order to main*70tain ejectment; but, by the statute, Code. 1871, § 2295, copied from the Code of 1857, p. 308, art. 12 Before a sale under a mortgage, or deed of' trust, the mortgagor or grantor shall be deemed'the owner of the legal title, . . . except as against the mortgagee and his assign's, or the trustee, after breach of the condition of such mortgage or deed of trust.” The plain meaning of which is. that,, until foreclosure of the mortgage or deed of trust, the mortgagor or grantor shall be considered the owner of the legal title, unaffected by the mortgage or deed of trust as against all the world, except that, after breach of the condition, the mortgagee or trustee shall haye the legal, title for the purposes of the trust. This statute, adopted the doctrine of courts of chancery,, that a mortgage or deed of trust, though in form a conveyance of the legal title, is but an incumbrance, — a mere security for a debt, — and that the mortgagor or grantor remains the real owner; but that the mortgagee or trustee, after condition broken, is so far the owner as to be entitled to make the security available, according to its tenor. Carpenter v. Bowen, 42 Miss. 28 ; Buckley v. Daley, 45 Miss. 338. It. is not the effect of' the statute cited to make the mortgagee or grantee the legal owner, after breach of the condition, except so far as is necessary to make the securit}r available. He may assert title for that purpose ; but he has no beneficial ownership. He may maintain ejectment, but only as a means to the. end of enforcing the security. He may sell, in pursuance of a power in the instrument, but he has no title which is vendible under execution against him. Buckley v. Baley, ubi supra.

The cases cited in the opinion in Heard v. Baird were decided before the Code of 1857, under the operation of the then prevalent doctrine in some courts of law, that a mortgage or deed of trust divested the legal title of the mortgagor or grantor, according to the form of the instrument.. The court, in the case cited, did not correctly apprehend and state the effect of the statute quoted.. Under it the mortgagor, or grantor in a deed of trust, is to be considered the, owner of the legal title, until a sale under the instrument, as if he had not executed it, subject only to the right of the mortgagee or his assigns, or the trustee, after breach of *71the condition ; but even after condition broken, until a sale by virtue of the instrument, as to all others, except the mortgagee or his assigns, or the trustee, the mortgagor or grantor' is to be considered the owner of the legal title, unaffected by the incumbrance. If the condition is never broken, the mortgagor or grantor remains the legal owner against all persons. If, after condition broken, payment shall be made of the debt secured, the incumbrance is thereby extinguished, and the right oí the mortgagee or trustee to enforce the security is gone. If the debt is barred by the Statute of Limitations, all remedy, at law or in equity, on the mortgage or deed of trust is gone. Code 1871, § 2150. And it seems absurd to say that a plaintiff shall be hindered from recovering in ejectment because of an incumbrance executed by him which, from any cause, has become inoperative for want of any remedy upon it. If a man divests himself of his legal title, no matter how long a time elapses afterwards, he cannot recover in ejectment. In such case time is not important. Fifty years will be no more effective to invest him with title than will one year. But the vice of the argument in Heard v. Baird is in assuming that the mortgagor or grantor in a deed of trust parts with the legal title. By the form of the deed he does ; but the statute declares that he shall still be deemed the owner of the legal title until, etc., and except, etc. Having merely incumbered his legal title, when the incumbrance is removed, his legal title is as if the incumbrance had never existed. We regard the doctrine announced in Griffin v. Sheffield, as stated above, as correct, and hold that an outstanding title, to defeat the plaintiffs’ recovery in ejectment, must be one capable of enforcement.

In Stadeker v. Jones, 52 Miss. 729, we held that payment of the debt secured by a deed of trust on personal property had the effect to extinguish the security, and to revest the title in the grantor as if the deed had not existed. We did not discuss the question as applicable to real estate, but recognizing the existence of Heard v. Baird, and other cases, distinguished from them the case before us. The investigation of the question in the case now under consideration has brought us to the conclusion above announced.

*72But aside from the fact that the Statute of Limitations has extinguished the deeds of trust, it results, from the foregoing view of a deed of trust, that the title remained in the grantor, as against all persons, except the trustee, after condition broken; and no one but the trustee, or those claiming title under him, could set that title up to defeat a recovery on the title of the grantor, who is to be deemed the owner of the legal title, except as against the trustee.

It follows, from these views, that the action of the court below, upon the instructions, was erroneous. The title was in Mrs. Meadows, under whom the plaintiffs claim. The defendant claims derivatively under Mr. Meadows. He has never acquired the title of Mrs. Meadows. He cannot defeat the plaintiffs, who have acquired the title of Mrs. Meadows, by producing deeds of trusts executed by her so long ago that the debts secured and all remedy on the deeds of trust are barred by the Statute of Limitations. There has not been a sale of the title of Mrs. Meadows under the deed of trust. The statute made her the owner of the legal title, notwithstanding the deed of trust, except as against the trustee, after condition broken ; and now, even his title is extinct by lapse of time, and it cannot avail against the plaintiffs, because it is not a valid, subsisting, and operative title, and because the defendant has not the title of the trustee, if it was operative. There was no estoppel against Mrs. Meadows. Sulphine v. Dunbar, 55 Miss. 255 ; Staton v. Bryant, 55 Miss. 261.

Judgment reversed, and new trial granted.