80 Miss. 31 | Miss. | 1902
delivered the opinion of the court.
It is settled law in this state that a mortgagee cannot purchase directly or indirectly at a sale under his mortgage, unless the mortgage confers such right, or the mortgagor consents to such purchase. Byrd v. Clarke, 52 Miss., 623. Counsel for appellees earnestly insists that the mortgagor and those claiming under him have no absolute option to avoid such voidable sale, but only an option conditioned upon the existence of fraud or unfairness in the sale. He cites some Texas cases and a few-other cases to support that view. The reasoning of these cases is that, unless the mortgagee is permitted to buy at his own sale, the property might at some time be sacrificed — might be sold for less than the debt — and that thus there would result injury and loss both to the mortgagor and the mortgagee. The complete response to this is that the'rule is a broad and universal one, based upon public policy, and not one which looks at all to the interest of the mortgagor or mortgagee in any par
In Thornton v. Irwin, 43 Mo., at pages 163, 164, the court áay: “The doctrine that trustees, agents, administrators, guardians, attorneys, or others whose connection with any other person is such as to establish a confidential relation between them concerning his property, or give them special knowledge and opportunities in regard to it, cannot without, and often cannot with, his full knowledge and consent, become the purchaser of Such property, is well settled in the jurisprudence of England and of the United States. It is also well established by the civil law, and affirmed in those European states whose laws are founded upon it. The leading case in England is that of Fox v. Mackreth, 2 Brown Ch., 400, heard twice before Lord Chancellor Thurlow in 1788, and reviewed in the house of lords; and the doctrine of that case is affirmed and extended in all the authoritative cases since that time. Among the important cases in the United States where the question is involved are Davoue v. Fanning, 2 Johns. Ch., 252; Michoud v. Girod, 4 How., 503 (11 L. Ed., 1076); and Gardner v. Ogden, 22 N. Y., 327 (78 Am. Dec., 192). Chancellor Kent, in Davoue v.
Counsel next insists that this is not a sale by the mortgagor to the mortgagee, because George J. Peet purchased at the sale. But Peet was a mere nominal purchaser. It perfectly appears that he bought for the appellee on July 3, 1895, and conveyed to it on July 13, 1895. He paid nothing on his bid. He bid $1,075, out of which $43 were deducted for the expenses of the sale, and the balance was credited on the indebtedness of the mortgagor to the mortgagee. It is perfectly obvious that Peet was a mere conduit of the title for the mortgagee. In such case the law is exactly the same as if the mortgagee had bid in his own name in the first instance. This is expressly decided in Roberts v. Fleming, supra, at page 200, and also in Thornton v. Irwin, supra. Indeed, it needs no decision to maintain so manifestly proper a conclusion. "Qui facit per alium facit per seT
Counsel for appellees next insists that appellant is barred by unreasonable delay in filing the bill. If we were to deal with this question apart from the statutes of limitations, then no hard and fast rule can be laid down as to what is a reasonable time within which the mortgagor, or one claiming under him, should file the bill to avoid the sale and redeem. Each case must be determined upon its own peculiar facts. 2 Jones
Counsel for appellees next insists that, even if the sale is voidable at the instance of the mortgagor, the appellant could have no right to maintain this bill, derived from his quitclaim deed from the mortgagor executed after the foreclosure sale; and he very earnestly contends that when the rule is announced that in cases of a voidable sale the mortgagor, or any person claiming under him, may avoid the sale, it is only meant that any person claiming under him at the date of the sale, and having at the time of the sale an existing interest in the property, may avoid the sale, and not one who acquires an interest Under the mortgagor after the sale, and with notice of the sale. He cites many authorities, among which is Wade v. Thompson, 52 Miss., 367. Counsel misconceives this case. That was a contest between rival claimants of the title in ejectment, and not a bill filed to avoid a sale and to redeem. The case of Wormell v. Nason, 83 N. C., 32, does not support the contention. On the contrary, it expressly declares, on page 36, that the mortgagor, or any one claiming under him, as assignee or creditor, may file the bill to avoid the sale; and the court held that since the creditors were not prejudiced by the sale, and the administrator was not acting or professing to act in their interest, he could not, as administrator, on those facts, maintain such a bill. But the court expressly said that there might be cases in which even an administrator might file such a bill. The case of McCall v. Mash, 89 Ala., 487 (7 So., 770; 18 Am. St. Rep., 145), is the only case that we have seen that
Counsel'for appellees next contends that this is a bill to remove clouds from title, but this is an entire misconception of the bill.
Counsel finally contends that the appellant obtained by his
We also think that the prayer of the bill that the appellees be required to pay the complainant the money it has received from Katharine and W. H. De Loach, the innocent purchasers for value without notice, and that such purchasers be required to make the further payments for the fifty-two feet off the east end of said lots sold to W. H. and Katharine De Loach, co-defendants herein, by appellees, to complainant, should be granted. The mortgagee gets his debt, with all interest, and is not prejudiced. Its sale, being avoided, is as to it avoided in tolo; the rights of the innocent purchasers being fully protected. A proper accounting should also he had.
Decree reversed, and remanded to he proceeded with in accordance with this opinion.