Elson v. Barrier

Campbell, J., delivered the opinion of the court. The result reached in the Circuit Court in this case is correct, and will not be disturbed, although the contest was made on what we do not regard as the real ground of controversy suggested by the facts. Plaintiffs in error were purchasers of the cotton conveyed by the deed of trust, with full legal notice of the right of defendant in error as the beneficiary in the deed of trust. The fact that the cotton was sold in a county other than that in which the deed of trust was recorded, did not release it from the deed of trust. Code, sect. 2305; Bogard v. Gardley, 4 Smed. & M. 302. It is claimed .that the cases of Westmoreland v. Wooten, 51 Miss. 825, and Cloud v. The State, 53 Miss. 662, deny the liability of the purchasers of the cotton to answer in assumpsit for the value of the cotton. Not so. A deed of trust does not create a mere lien ; it confers title ; and, after condition broken, the legal title is in the grantee, and he may maintain any action which an owner can maintain. A lien is a charge upon a thing, a right to resort to it for satisfaction, but is neither jus in re nor jus ad rem; and, therefore, no action can be maintained by the lien-creditor which requires title for its maintenance, for the obvious reason that he has not title. [397] Hence, the manifest distinction between the two classes of cases. The difference is between a mere right to fasten a charge on a thing, and a title to a thing, with all the incidents of title. Affirmed.