McDonald v. Vinson

56 Miss. 497 | Miss. | 1879

Campbell, J.,

delivered the opinion of the court.

It is well settled that a power of saffi in a mortgage or deed of trust does not in any way affect tbe jurisdiction of a court of chancery to enforce the rights of parties, thereto, nor abridge in the slightest degree the right of a person, secured by such instrument, to resort to a court of chancery, as he might do if no such provision had been made for enforcing the security without the aid of a court. All the powers conferred by such an instrument are additional to what the law grants, and neither affect the jurisdiction of a court of chancery nor the option the holder has to invoke its jurisdiction, as if the instrument contained no such provision. A power to sell, or to appoint a trustee, or the like, enlarges the right of the person to whom it is given, but does not diminish it.

The deed of trust in this case may be enforced by the Chancery Court, as if no trustee had been appointed. The bill is constructed on the erroneous theory that it is necessary to have some special ground on which to resort to chancery in such a case ; and it prays the confirmation of the appointment of a trustee, in the exercise of the power of substitution conferred by the deed, and that he may be empowered to execute the trust by a sale. The bill shows a promissory note, secured by a deed of trust, with condition broken ; and that is all that is necessary to maintain it. The bill was brought, and process issued and served, before the note was barred by the Statute of Limitations ; and the fact that the note was nearly barred makes no difference. The running of the statute was stopped by the commencement of the suit.

. Decree affirmed, and cause remanded for defendant to answer in thirty days.