Marks v. Howard

70 Miss. 445 | Miss. | 1892

Cooper, J.,

delivered the opinion of the court.

The appellees are not represented in this court, but we have carefully examined the record to discover any failure of appellant to support his right to recover possession of the land sued for, and find all the facts upon which that right-rests clearly proved. We are advised by the brief of counsel for appellant that the court below was of opinion that a purchaser of land under a sale made by a trustee, in a conveyance to secure the payment of a debt, with power of sale in default of payment, could not recover possession of the land in this action, but must resort to an action of ejectment. This is an erroneous view of the law. The code provides, § 2645, that “ any one deprived of the possession of land by force or intimidation or fraud or stratagem or stealth, and any landlord, vendor, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, mortgagor, grantor, or other pei’son, after the expiration of his xdght by contract, express ór implied, to hold possession, and the legal representatives or assigxxs of him who is so depxdved of possession, or from whom possession is so withheld, as against him who so obtained possessioxx, or so withholds possession, after the expiration of his right, and all claiming to hold under him, shall, at axiy time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescxfibed.”

The appellees had executed a deed of trust upon their lands, and, after fox’feiture, their light of possession, as agaixxst the trustee, expired. The trustee thereafter had aright to invoke the summary remedy afforded by the statute to recover possession of the land.- J3y the sale and coxxveyance this right, together with all other rights existing in the trustee, passed to the purchaser, who became the assignee of the trustee, ixoldiixg in privity with such trastee,, aixd, as such, entitled to maintain this action.

Judgment reversed