57 Miss. 67 | Miss. | 1879
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
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
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.
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.