51 Miss. 795 | Miss. | 1875
delivered the opinion of the court.
In October, 1865, Kirk bought of Long a certain tract of land, and agreed to pay for it in cotton, to be delivered in annual installments. The last, for 2,500 pounds, or five bales of 500 pounds each, matured the 20th of October, 1869. Long gave to Kirk a bond for title in the penalty of $9,000, conditioned to execute a deed on payment of the entire consideration. Kirk went into immediate possession of the premises, and -has continued since in their occupancy. The title bond was never recorded.
At the date of this loan and security therefor, Kirk had paid to Long all the debt, except the last installment and some arrears on former ones, as set forth in Long’s statement and the agreement of counsel.
Strickland being about to execute the trust deed, in April, 1870, Kirk made final payment to Long. The obligation of Kirk to Long for the last installment, was not at the date of the trust deed, or at the date of its record, transferred to Strickland.
A demurrer to the bill was overruled, and from that order an appeal was taken. The relief sought by Kirk on the foregoing facts was an injunction restraining the sale by the trustee Strickland.
It has been settled by numerous cases in this state, commencing with Dixon v. Doe, ex dem. Lacoste, 1 S. & M., that the open possession and occupancy of land by the vendee is implied notice of his right; or, as sometimes stated, is a fact from which notice may be inferred. According to the case made in the bill, Strickland had implied notice of Kirk’s purchase, and he is thereby placed in tbe same attitude as if Kirk’s title bond had been recorded. 45 Miss., 694-8.
When Strickland accepted the trust security from Long in 1869, in legal effect, he had notice of the character of Kirk’s interest in the land; that is, that Kirk was purchaser from Long, with bond for title on complete payment of the price. The relation which Kirk and Long sustained towards each other was this: Kirk was equitable owner of the land, charged and burdened with an equity in favor of Long for the unpaid purchase money. Long retained the legal title as a security for what was due him. Each bore towards the other the relation of trustee ; Long retained the title on the trust that it should be assigned to Kirk on payment of the cotton ; Kirk was trustee for the money or cotton due to
Substantially the same questions which arise in this case were considered in Taylor v. Lowenstein et ah, 50 Miss., 280-1-2-3. There the controversy was between the vendee in possession, with an unrecorded title bond, and a judgment creditor of the vendor, who sought to subject the land to sale, under his judgment. In describing the interest of the judgment debtor, the court used this language : “ The right which remained substantially in Thornton, the judgment debtor, was to retain the title until the debt, the price, was paid to him. The creditor had a right to subject all of Thornton’s interest to his judgment, that was a claim to the title as security for his debt. If the creditor can appropriate that interest, he gets all that the debtor had.” It was also said, that the mode of reaching that interest was by bill in chancery, against vendor and vendee, whereby the equity of the vendor on the land as security for the debt might be applied to the satisfaction of his judgment. But the land itself was not subject to the judgment.
As we have seen, the vendor is treated by the courts as mortgagee ; his retention of the title operates as an equitable mortgage, which is of equal import as the ordinary mortgage. They
If these principles have application to the case before ns, a creditor of Long must be remitted to such contract or remedy as would devote to his use the debt due from Kirk to him, which would carry along with it the equity of Long on the land. If Kirk’s obligation, due in 1869, had been assigned to him, it would have carried with it all the security which Long had for its payment. And since the only interest he had in the land was incident to the debt, and a security for it, he could only acquire property in the incident by becoming interested in, or owner of the principal — the debt.
There is no error in the decree overruling the demurrer to the bill, and it is affirmed, with leave to defendants to answer in forty days from this date.