90 So. 186 | Miss. | 1921
delivered the opinion of the court. '
The appellee, John T. Short, filed a bill in chancery to cancel certain deeds made by appellant, T. L. McDaniel, to the appellants, Mrs. P. E. McDaniel, Talmadge McDaniel, and Estes McDaniel, and to remove clouds and validate his title under a deed of trust foreclosure upon certain lands described in the deed of trust. The appellants answered and filed a cross-bill, seeking to cancel the claim of title of appellee, Short, to said lands under his foreclosure deed. There was a decree in favor of the appellee, Short, from which this appeal is prosecuted.
Briefly stated, it appears that T. L. McDaniel, who is now the husband of Mrs. P. E. McDaniel, and the father of Talmadge McDaniel and Estes McDaniel, executed a note and deed of trust to Short for one thousand dollars upon the land involved, and due in 1911. The deed of trust was not recorded nor attempted to be foreclosed until
In the meantime, in 1915, the said T. L. McDaniel conveyed the same land to his two sons, Talmadge and Estes McDaniel, appellants, and afterwards in 1916 he conveyed this land to Mrs. T. E. Moody, who is now his wife, in consideration of her promise to marry him, and she married him and is now the appellant, Mrs. P. E. McDaniel. Both of these deeds, one to his sons, and the other to his wife, appellants, were duly recorded, and it is not contended that these last-named grantees had any notice of the deed of trust of appellee, Short.
At the hearing of the cause the chancellor held that the note and deed of trust were barred by the statute of limitations, but that since the appellee, Short, was a mortgagee in possession no relief could be had by any of the appellants against him unless they should first tender the amount of the barred indebtedness; and the court decreed-that the appellee, Short, still had a lien on the land for the payment of the debt, and ordered the land sold for that purpose.
We think the court erred in holding that the claim of the appellee, Short, was superior to that of the appellants, Mrs. P. E. McDaniel or Talmadge McDaniel and Estes McDaniel, because. the debt and security held by appellee, Short, was barred by the statute of limitations, and both the remedy and the right were thereby extinguished, and the title obtained by the intervening or subsequent purchasers without notice must prevail against the extinguished lien of the appellee, Short. Sections 8115, 3093, Code of 1906 (sections 2479, 2457, Hemingway’s Code); Proctor v. Hart, 72 Miss. 288, 16 So. 595. Therefore the attempted sale under the barred debt and security conferred no title upon the purchaser, nor could tbe sale ordered by the court to enforce the lien be valid because
We are not called upon in this appeal to decide the question of title as between the appellant Mrs. P. E. McDaniel and the appellants Talmadge McDaniel and Estes McDaniel, and therefore as to which of these appellants has a superior title to the land we do not decide, but confine the decision to the holding that the claim or title of appellee, Short, to the land in question is void as to her, because of the extinguishment of his debt and security by the statute of limitations. He having no title, he must fail in his bill for cancellation.
The decree of the lower court is reversed, and the cause remanded.
Reversed and remanded.
