59 Miss. 54 | Miss. | 1881
delivered the opinion of the court.
The objection that the bill of exceptions does not show that the plaintiff, on the trial of the issue, introduced evidence of a judgment in his favor, and therefore was not entitled to succeed on any view of the ruling excepted to, is not well taken. The bill of exceptions was not taken to a judgment overruling a motion for a new trial, in which case, on appeal, the question here is, whether, on the whole evidence, the judgment is
Before a sale under a deed of trust the grantor is deemed the owner of the legal title of the property conveyed, except as against the trustee after breach of the condition of the deed of trust. After breach of the condition the trustee is owner of the legal title, according to the terms of the deed, and is entitled to it as the means of executing the trust conferred upon him. The claim of the trustee in such case is paramount to that of the creditor in an attachment which is subordinate to the deed of trust. The right of the grantor in a deed of trust is vendible under execution, before or after breach of the condition, and will pass by a sale under it. .As against all but the trustee it may be seized and held after breach of condition, but the possession of the officer must yield to the superior claim of the trustee, when interposed. Butler v. Lee, 54 Miss. 476. It results that, at the time of the levy of the attachment in this ease, the trustee was entitled to the possession of the property he claimed, and that his claim was rightfully interposed.
It might occur in an action for personal property that the plaintiff was, at the commencement of the action, entitled to the property, and that before the trial it had vested in the defendant, by the expiration of the plaintiff’s title. In that case no one would1 contend that the court should award to the plaintiff the property which, in the next hour, the defendant might have seized as his under the process of the same court, to be followed by a judgment of that court that the property was his when the former trial was had. Hence the rule that where pending the suit the subject of it has ceased to be plaintiff’s and become the defendant’s, that may be shown, and the court will not commit the folly of giving a judgment for the plaintiff, to be reversed in favor of the defendant in a subsequent action for the same property. It will not award the property to one not then entitled to it. The same rule obtains in the trial of the right of property levied on, and claimed by a third person. The real inquiry in such case is, Is the property claimed liable to the process? If it was not at the time of the levy, but has become so at the trial,
At the time of the levy the property claimed was liable to seizure under the attachment, but subject to the deed of trust. It is yet liable to the attachment, and now the incumbrance of the deed of trust has ceased to exist as a hindrance to the sale of the property remaining after its extinguishment.
At the-time of the trial tiré trustee had no right to withhold the property in his hands from the attaching creditor. He once had the right, but it had expired by a change of circumstances, and he was claiming against the creditor that to which he had no right, but which the creditor had the right to subject to his judgment. It is claimed that Butler v. Lee, 54 Miss. 476, contains a different doctrine. That is a mistaken view of that case. The only question decided in it is, that the possession of the officer, who has seized personal property under process on a judgment which is subordinate to a deed of trust, must, after the breach of the condition of the deed, yield to the paramount claim of the trustee. We reaffirm that doctrine in this opinion, but a totally different question is here presented and decided.
As the claim of the trustee was rightly interposed, he is entitled to his costs accrued before the time when he ceased to have the right to withhold the property from the plaintiff.
Reversed and remanded.