The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-11-10
SUPREME COURT CASES.
Reported for The Clarion By w. Il Harper
Aftorney-st- Law, Jackson, Miss.
October Terin-I8s6. :
J. II. D. BowMAR, Receiver, }

October Terfu-Tss6.
J. II. D. BowMAR, Receiver,
CHAs. PEIEE, ct. al.
Appeal from the Chancery Court of
Warren County. Hon. Warren Cow
an, Chancellor
On August 10, 1876, Chas. Peine gave
his promIsory note to Geo NJ Klein,
cashier Of the Mississippi Valley Bank,
for 81 ,43l, pay able August 10, 1877, and
thereupOn executed deed of trust on
certain property in Warren county to
secure this note, which deed was duly
recorded. On August 20, 1888, Peine
signed an endorsement on this note as
follows:
81 hereby waive the statute Of limita-
tons as to the within note and the deed
of trust to secure the same.
c. PEINE.
On November q, 1888, the "AIissis-
sippi Valley Bank failed, and J II. d.
Bowman was appointed receiver, and as
such, ne came into possession of the
above described note. On November ,,
1885, Bowman, the receiver, filed this
bill 10 foreclose the deed of trust in
favor of the bank given to secure the
note. Chas Peiue, w. B. Swords,
minor, and his guardian, w J.. Trow-
bridge, were made parties thereto. On
February %, 1880, Swords obtained a
decree against Peine for S10,147.39, aud
execution having issued. it was levied
on the property now in question,
which property was also part of that
I..3 IF
by Peiue to the mississippi Valley
Bank" Swords purchased it at this
sale under his execute At the October
| term, 1885, Of the Warren county circuit
court, Swords obtained judgment in an
action of ejectment against Peine, Bow
mar not being party TO the suit, for
the possession of this property, and soon
Afterwards this bill was fled by Bowman,
praying that the deed of trust to secure
Peine's note be foreclosed.
On the trial it was shown that neither
Swords nor Trowbridge knew anything
of the endorsement of waiver on the
note as above set out. The Chancellor
on the final hearing, dismissed the bill of
complaint, and Bowman appealed.
Cooper, c. J. delivered the opinion of
the Court.
The waiver endorsed upon the note
was sufficient to prevent the bar of the
statute of limitations. Hart V. Boyt, 81
Miss, SAT.
Plant V. Shryock, 60 Miss, 821, is
conclusive that the lien of the mortgage
| must prevail both as against the mort
eager and all parties claiming his title
| But the decision in that case, it is said,
| c,-o,rr1o Oh fory,,ar ,loof5fous ,f chs, or,,,.+
and established new rule in this State,
and appellee, Swords, insists that since
| his title was acquired before that decis-
ion was made he is entitled to the
protection afforded by the rule which
prevailed at the time Of his purchase.
| 1t is commended that Avent v.>McCorkle,
| 81 Miss, 221, and Deason V. Taylor, 50
| Miss, 697, was Overruled by Plant Y.
| Shryock. This is a mistake.
In Avent Y. McCorkle the vendor had
irecited in his deed that the purchase
money had been paid in full Ten years
after the sale the vendor gave up the
original note and received in lieu of it
bill single, the vendor agreeing there.
after to pay in interest ten per cent.
instead of six per cent, which rase was
borne by the original contract. Some
ten years after tho sale a contro-
versy arose between the vendor and
Judgment creditor of. the vendor.
The court laid stress, in its opinion,
on the fact that upon the face of the
recorded deed, the vendee appeared as
absolute owner, without reservation or
incumbranee in favor of his vendor"
and inquired whether under such cir
cumstances a court of equity would en-
force the "secret privilege" rs against
persons who might fairly be presumed
to have given credit on the faith Of the
vendee's ownership. There is very
strong intimation that the lien would
not have been enforced after the lapse
of so many years, but the real point of
the decision seems to have been that the
vendor by taking the bill single and
STIMULATING for greater interest, had
waived the lien and stood in no other
relation than that of an ordinary credi-
tor to the vendee. The force of the ar
gument in that case was, and the point
was emphasized by the court, that the
lien attempted to be enforced was a
isecret privilege" of which others had
no notice by the record; that the privi-
lege or lien was the creature of a court
of equity and ought not to be enforced
when it would operate injuriously to
others after the lapse of many years.
But in cases of mortgages duly re-
corded the world is notified that by the
contract of the parties, there Is q mort
gage so long as the debt it secures is I'M
paid, and this is sufficient to put all
persons upon inquiry to learn the facts
as they may exist.
In Deason V. Taylor, So Miss, where
an equitable mortgage was reserved in
the face of the deed, Chalmers, j., stated
that a purchaser might rely upon the
presumption of payment afforded by the
lapse of time sufficient to bar the note,
but there was no question of this sort
involved in that case, and the remark is
dictum and not decision. We are salts
fed of the correctness of the view an-
nouneed in Plant Y Shryock, and that
there is no conflict between that case
and any former decision of this court.
Rerersed.
A. NJ. Lea, for the appellant.
r. :. & l.. n. Buck and McCabe &
Anderson, for the appellee.