56 Miss. 748 | Miss. | 1879
delivered the opinion of the court.
The fact that a mortgage or deed of trust contains a power of sale, and contemplates a foreclosure by a sale without the aid of a court, does not preclude a resort to the chancery court.
At the time of the execution of this deed of trust, ten years was the period which barred a right of entry into lands. Acts 1854, p. 134. Then the law was, that the right to foreclose a mortgage or deed of trust in chancery was not barred by the period which barred the debt secured by it, but only by the period which barred an action of ejectment, — i.e., ten years after condition broken. Miller v. Helm, 2 Smed. & M. 687; Miller v. Trustees, etc., 5 Smed. & M. 651; Trotter v. Erwin, 27 Miss. 772; Berry v. Bacon, 32 Miss. 212; Wilkinson v. Flowers, 37 Miss. 579.
It was not until the 1st of November, 1857, that the law provided that the remedy on the mortgage or deed of trust
This deed of trust was not barred when this bill was filed, because ten years had not expired, after condition broken, before the filing of the bill, deducting the time during which the running of the Statute of Limitations was suspended.
To bar the deed of trust because the writing obligatory it secured was barred, it must have become barred by the operation of the Code of 1857, because prior to that it was not material that the debt was barred. The precedent time is not to be computed, because, if it barred the debt, that did not affect the remedy on the deed of trust, as the law then was ; and the periods of limitation prescribed by the Code of 1857 did not commence until the 1st of November, 1857. Rev. Code 1857, p. 402, art. 28 ; Carothers v. Hurley, 41 Miss. 71.
The right of action or of entry on this deed of trust, and the right of action on the bill single it secured, accrued before the Code of 1857 became operative, and were, therefore, subject to the precedent law, as no bar had accrued under the provisions of the Code.
The trustee in the deed of trust should have been made a party to this suit; but, as we can dispose of the case without his being a party, and no good purpose would be served and no benefit could result to any of the parties from remanding the cause, we are not disposed to entertain the objection, which was not made in the court below, but is first urged here. The naked legal title is in the trustee. The parties beneficially interested are before the court. The execution of the trust by decree of the court will supersede the trustee, and present a ground’for restraining him if he should ever assert his legal title, now probably barred by the Statute of Limitations.
Decree reversed, and decree here in favor of appellant, after reference to the clerk to compute the amount due.