Marx v. Davis

Chalmers, J., delivered the opinion of the court. It is objected in this court, for the first time, that the legal title to the animals in controversy was in the trustee after condition broken, and that, inasmuch as he could have maintained trover or replevin, he is debarred from filing his bill for foreclosure. i Only one of the animals here involved was embraced in the trust-deed, the other having been procured by the debtor in exchange for a different animal, which was originally owned by him and was embraced. In order to reach the substituted animal, therefore, it was necessary to go into equity. Apart from this, however, the fact that a trustee or mortgageor, after condition broken, may sue at law for the mortgaged property, does not preclude the filing of a bill for a foreclosure by sale, any more than a power of sale contained in a mortgage defeats the jurisdiction of a court of equity to order a sale. Herm. on Chat. Mort.,sect. 206; Bryan v. Richardson, 1 Strobh. Eq. 334; Jones v. Henry, 3 Litt. 46; McAllister v. Plant, 54 Miss. 108; Thompson v. Howze, 48 Miss. 444. The objection that the chancellor permitted the reading of the papers in the case before him, on file in his own court, with a view of intelligently executing the mandate of this court, issued when this case was heretofore before us (55 Miss. 376), strikes us as being altogether novel, and certainly without merit. Decree affirmed.