Wall v. Harris

44 So. 36 | Miss. | 1907

Calhoon, J.,

delivered the opinion of the court.

The appellant, Augusta W. Wall, and her husband, James M. Wall, executed their promissory note for $746 to appellee, Harris, in June, 1892, and on the same day executed a trust deed to W. G. Phillips as trustee to secure that note, which note became due on January 1, 1893, and carried interest from its .date at the ' rate of ten per cent per annum. This note was permitted to run on unpaid until 1897, when, Phillips having refused to execute the trust, Harris, the beneficiary, appointed one Bennett as. substituted trustee; but this appointment of substitution was not recorded. After due advertisement the substituted trustee, Bennett, sold the land on September 4, 1897, according to the terms of the trust deed, and appellee, Harris, became the purchaser of it for $690, and his bid was duly credited on the note. On January 1 thereafter (1898) Harris took possession of the land, and continued in such possession, without dispute or interruption, for eight years, and until July, 1906, when Mrs. Wall and the heirs of her deceased husband, James M. Wall, brought ejectment against Harris, the beneficiary of the trust deed, in the circuit court, for the possession of the land and mesne profits and damages, which the declaration makes to aggregate about $1,500. Thereupon the appellee, Harris, filed his bill in chancery, which concedes that the sale by the substituted trustee was irregular under the previous decisions of this court, but states that there remained still due him on the indebtedness about $800, to which he is entitled, and that, if the ejectment suit should be permitted to proceed, he would be deprived of the possession of the land, which, as he asserts, he is, as mortgagee in possession, entitled to hold until the indebtedness is paid, notwithstanding he got possession under this irregular and invalid sale, and for an account, etc., and for final decree perpetuating the injunction and directing payment of any balance that may be due him on the note, and that they'be required to pay within a time to be fixed, and upon failure to do so that the land should be decreed to be sold for the payment, and for general relief. On his prayer the appellants were enjoined from further prosecuting the ejectment suit until the hearing of the equity procedure. The appellants demurred to this bill, and their demurrer was overruled, and they appeal.

It would shock the conscience of the court if this beneficiary in-peaceable possession should be required to give up the land, and appellants be permitted to hold to the same, and also to avoid payment of the debt. We regard this question as settled by a concluding paragraph of the opinion of this court in Allen v. Alliance Trust Co., 84 Miss., 319, 36 South., 285, and by the same case, with a different party complainant, styled Haggard v. Wilczinski, 143 Fed., 22, 74 C. C. A., 176. We apprehend that no court would permit the grantors in a trust deed, under the circumstances set forth in this bill, to stand quietly by for eight years, with the beneficiary peaceably in possession, and wait until the note which the trust deed secured became barred by limitation, and then take the land free from the obligation of any of the debt and with rents and profits. The only protection in this situation which the beneficiary had was to file a bill stopping such a claim in a law court, with the full tender to do equity in every regard. Such appeal to a court of conscience furnishes the only defensive course which the beneficiary could pursue.

Affirmed and remanded.