Bowmar v. Peine

COOPER, C. J., delivered the opinion of the court. The waiver indorsed upon the note was sufficient to prevent the bar of the statute of limitations. Hart v. Boyt, 54 Miss. 547. Plant v. Shryock, 62 Miss. 821, is conclusive that the lien of the mortgage must prevail both as against the mortgagor and all parties claiming his. title. But the decision in that case, it is said, overruled former decisions of this court, and established a new rule in this State, and the appellee, Swords, insists that since his title was acquired before that decision was made he is entitled to the protection afforded by the rule which prevailed at the time of his purchase. It is contended that Avent v. McCorkle, 45 Miss. 221, and Deason v. Taylor, 53 Miss. 697, w.ere overruled by Plant v. Shryoch. This is a mistake. In Avent v. McCorkle the vendor recited 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 a bill single, the vendee agreeing thereafter to pay interest at ten per cent, instead of six per cent., which rate was borne by the original contract. Seventeen years after the sale a controversy arose between the vendor and a judgment creditor of the vendee. 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 incumbrance in favor of his vendor,” and inquired whether under such circumstances a court of equity would enforce the “secret privilege” as against persons who might fairly be presumed to have given credit on the faith of the vendee’s-ownership. There is a 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 stipulating for a greater interest had [105] waived the lien and stood in no other relation than that of an ordinary creditor to the vendee. The force of the argument in that case was, and the point was emphasized by the court, that the lien attempted to be enforced was a “secret privilege” of which others had no notice by the record; that the privilege or lien was the creation 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 recorded the world is notified that by the contract of the parties there is a mortgage so long as the debt it secures is unpaid, and this is sufficient to put all persons upon inquiry to learn the facts as they may exist. In Deason v. Taylor, 53 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 satisfied of the correctness of the view announced in Plant v. Shryock, and that there is no conflict between that case and any former decision of this court. Reversed.