The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-06-07
SUPREME COURT DECISIONS.
Reported weekly by Jenkins
a. little, Attorneys AT law.


Error 10 the Circuit OF Rankin county,
Hon, W. NJ. Hancock, Judge.
Plaintiffs in error brought tjectment
against defendant in error to recover a
house and lot in the town OF Brandon.
Both parties claimed to have derived title
from o common source, Wis Mrs. caroline
Meadows-the plaintiffs by deed directly
from her; the defendant III this way: Mrs.
Meadows and her husband &C. II. Meadows)
gave their joint note!to one Jordan, and an
other to one Mabry, and secured each by
joint deeds of trust on the property in
question. Subsequently thereto the said o.
H. Bankruptcy and gave in the property as
his. By order of the Bankrupt Court,
the assignee of Meadows sold the property
under the said trust deeds at which sale
one Butler became the purchaser, who
obtained deed from the assignee. By snb-
sequent transfers it came into the pos
session of defendant by purchase. 1t was
after this that plaidtiffs obtained their
| deed from Mrs Meadows. The notes
which the trust deeds were given to
secure, becoming barred by the statute
of limitations, plaintiffs brought this suit,
claiming that this property, belonging to
Mrs. Meadows, was improperly sold by the
assignee as the property of her husband,
and that as the deeds of trust had never
been foreclosed, and the notes had become
barred, they afford no obstacle to plaintiffs
title. This was controverted by the defend
ant who further claimed that Mrs. Meadows
knew of the sale by the assignee and made
no objection thereto, and that she and her
vendees will be estopped from denying the
validity of the sale.
Under instructions favorable to the de-
PENDANT on these two propositions, the case
resulted in verdict and Judgment in his
favor; from which the plaintiffs prosecuted
writ of error.
CAMPBELL, j.,
Held
l.. In Griffin vs.. Sheffield OF al, SO Miss,
$50, it was held that recovery by the
plaintiff in ejectment could not be defeated |
by showing that the defendant had acquired
an outstanding title which was barred by
the statute of limitations, at the the time of
such acquisition.
In Heard Vs. Baird ct al, 40 Miss, 1893,
it was decided that the estate of the
mortgagor or the grantor in deed of trust,
which was extinct by lapse of time, was
not such legal estate as would support an
action of ejectment, because legal title is
necessary to maintain ejectment, and it
was said that the deed of trust bad the
effect to divest the grantor of his legal title
before the institution of the suit, no mats
ter how long period had elapsed, he could
dot maintain ejectment. \
We can not sanction this view.
2. BY the statute, section 2205, of the
Code of 1857, copied from the Code of
1857, page, 308, article II, ''before q
sale under mortgage or deed of trust,
the mortgagor or grantor shall be deemed
the owner of the legal title = ex>
cept as against the mortgage and his assigns
OF trustee, after the breach of TIE condition
of such mortgage or deed of trust" The
plain meaning of which is that until fore
closure of the of the mortgage or deed of
trust, the mortgager or granite shall be
considered the own of the legal title, unaf
fected by the mortgage or decd of trust,
as against all the world, except that, after
breach of the condition, the MORTGAGE or
trustee shall have the legal title, for the
purposes Oh the trust.
3. Ii the condition is never broken, the
mortgagor or grantor remains the legal
owner against all persons If, after con-
dition broken, payment shall be made of
the debt secured, the incumbrance is there
by extinguished, and the right of the mort
gagee or trustee to enforce the security is
gone, If the debt is barred by the statute
IF Limitations, all remedy, at law or in
equity, on the mortgage of deed of trust is
gone. Code of 1871, 2150; and, it seems
absurd to say, that plaintiff shall be him
lered from recovering in ejectment, be-
cause of an incumbrance executed by him
which, from eny cause, las become mop
srative, for want of any remedy upon it.
4. We regard the theIdootrine announced
II Griffin VS.. Sheffield ct. al. as stated
bove as correct, and hold that an outstand- {
ng title, to defeat plaintiffs recovery in
jectment, must be one capable Of enforce
mont.
5. The title was in Mrs. Meadows, un" s
Ter whom plaintiffs claim. The defendant
aims derivatively under Mr.. Meadows. He 8
las has never acquired the title of Mrs.
Meadows He cannot defeat the plaintiffs,
Who have acquired the title of Mrs. Mead 8
TVS, by producing deeds of trust executed
" her SO long ago that the debts secured 8
nd all remedy in the deeds of trust is bar
ed by the statute of limitations. There 3
as not been sale of title of Mrs. Mead>
WIS under the deeds of trust The statute
1ade her the owner of the legal title, not>
the deeds of trust, except as I
gainst the trustee, after conditions broken Il
nd now, even his title is extinct by lapse 81
f timo and it cannot avail against plain L
ifs, because it is not valid, subsisting "
nd operative title; and because the de- fl
endant has not the title of the trustee, if
was operative.
6. There was no estoppel against Mrs. OIL
[eadows. @,
Reversed and new trial granted D