Wallis's Heirs v. Wilson's Heirs

34 Miss. 357 | Miss. | 1857

Smith, C. J.,

delivered the opinion of the court.

This was a bill filed in the Yice-Chancery Court for the Middle District, by Hill Stewart against John J. Wilson and Philip C. Wallis. The object of the suit was the redemption of certain lands sold by the sheriff under execution against cómplainantj and purchased by Wilson for and on account of said Wallis. The bill alleged a tender of the money paid by the purchaser, within two years from the date of the sale, and interest at ten per centum per annum thereon.

The redemption law was then in force, and there is no contest in regard to the tender. But the respondents rely upon a written agreement between complainant and said Wallis, entered into before the sale, by which they allege that the right to redeem was limited to one year from the time of the sale. It is admitted that the tender and offer to redeem were not made until near the expiration of two years from the time of the sale.

We have no doubt that the agreement, the purchase made in compliance with its terms, and the payment of the money as set forth in the answer, operated as a mortgage. It is hence very certain that the complainant’s right, as the mortgagor, to redeem was not barred either by the agreement or by the Statute of Limitations. But the complainant did not seek to recover upon the mortgage. He claimed the right to redeem as the defendant in the execution, in virtue of the statute. Our sole inquiry, therefore, is whether by the agreement he did not surrender his statutory right of redemption.

The agreement appears to have been made without reference to the statute. There was, hence, no express waiver or surrender by the complainant of any right or privilege thereby granted. And when we look at the transaction, and regard it in the light of a mortgage, there is not the slightest pretence for saying that the agreement can operate as an implied or constructive surrender of the privilege of redemption. For, holding the transaction to have constituted a mortgage, no conceivable right acquired under it by the mortgagee can possibly conflict with the statutory privilege of the complainant to redeem.

The vice-chancellor was, therefore, correct in holding that complainant was entitled to redeem. But an error exists in the decree, which requires correction. The decree attempts to pass the title to the land directly, by divesting it out of the heirs of Wilson and vesting it in those of ITill Stewart. The decree in this respect will be reversed, and a commissioner appointed to make the proper conveyance.