46 Miss. 13 | Miss. | 1871
This bill was exhibited to correct a mistake in the description of the lands mentioned' in the pleadings, and the deeds exhibited therewith. It is not controverted in this court, that the deed from A. J. Hyde and wife to War: ren, and the mortgage from Warren to Patrick, Irwin & Co.,
In the cases reported in 1 Caine, and 10 Johns., the distinction is taken between a purchase made by a trustee, and the cestui que trust; the former sustains a confidential relation to all the parties to the instrument; the latter is interested in making the property pay off the debt, and in enhancing the price at the sale. Certainly the better practice is to resort to chancery for a foreclosure and sale; very slight circumstances of unfairness or imposition where the mortgagee purchases would be sufficient to avoid the sale. We give no opinion on the point, whether, after a purchase by the mortgagee under a power of sale, the relation between himself and the mortgagor is so changed, as that the equity of redemption is cut off, as would be the case were a stranger a purchaser, according to the better reason, and the. weight of authority. Nor is it necessary to announce as a positive opinion, whether the mortgagee may be a purchaser or not. Treating the deed to the purchaser under the mortgage as void or voidable for any sufficient reason, Mrs. Hyde, in whose behalf the objection is made, has no interest in the question, and would.not be affected by a decision one way or the other. The moment it is conceded that there is a mistake in the deed from her and her husband to Warren, and a case is made which would warrant a reformation of the misdescription of the premises, then it is established that the “ right” to the lands have departed from her, and vested in Warren, and it is a matter of no concern to her, whether the title passed by the sale to Patrick, or not, under the mortgage which Warren made to Patrick, Irwin & Co. If Warren does not question that conveyance, or seek to avoid it, she has no interest to do so, for, if that sale were invalid, the mortgage would be restored, or the title would still be in Warren. She, therefore, can set up nothing against the deed to Patrick
Decree affirmed.