Morris v. Rucks

Chalmers, J., delivered the opinion of the court. J. P. and H. L. Robinson executed a trust deed on property which, as claimed, remained unpaid when suit in replevin was brought for the property without any precedent demand being made for its delivery. It was decided in Bowman v. Roberts, 58- Miss. 130, that a precedent demand under the phraseology of the deed of trust in that case was necessary, since the instrument there only stipulated for a surrender “ after demand by the trustee,” and no previous demand being averred, it was said that there could be no right in the trustee to sue until by a preceding demand he had acquired the right to the possession. Here, on the contrary, the right of possession is granted by the terms of the trust deed to the trustee upon default in the payment of the debt, so that the right of possession attached instantly upon default made in payment.. In such case no previous demand is necessary. In this case,.too, the possession had been delivered to a grantee of the mortgagor and was held by such grantee at and before the bringing of the suit. In such case there can be no obligation to make a demand upon a debtor who has put it out of his own power to comply, or upon his grantee, who has never obligated himself to do so.. The copy of the deed of trust offered in evidence was objected to because it was said that it had never been properly proved and was therefore constructive notice to nobody. Its execution was witnessed and proved only by a single witness. It was decided, after the most elaborate argument, in Wilkins v. Wells, 9 S. & M. 325, that an instrument was properly admitted to be recorded when proved by a single witness, and this decision has stood for.nearly forty years, and the rule announced was one of property involving the titles to thousands of acres of land. The statute under which it was made has been substantially re-enacted in our repeated revisions since, and even if satisfied that [82] the original decision 'was wrong (which we are not), wé certainly would not now reverse it. It is said that the language of § 1221 of Code of 1880 is different from that of Hutchinson’s Code under which the former decision was made, and that there is a difference of meaning between the two. The change is a mere change of phraseology, which is wholly immaterial, without change of meaning, and is copied literally from the Code of 1857, where it was never supposed to have in any respect altered the meaning. To alter the construction at this late day would operate the most untoward evils. The instructions fairly presented the question of fact to the jury, who responded in favor of the plaintiffs. Their verdict cannot be disturbed. It is not true, as contended, that the question of payment only was presented, and that that of satisfaction by contract was ignored. The first and second instructions for the plaintiffs are upon the question of payment, but the fourth distinctly presents the question of “ satisfaction by agreement.” It is evident that the two theories of payment and of extinguishment by contract were fully presented, and that the jury found for the plaintiffs on both. Affirmed.