Barkwell v. Swan

Woods, J., delivered the opinion of the court. 1. The transfer of the mortgage made by Pettibone to Swan, and its acceptance by Mrs. Barkwell, did not operate to pay the debt thereby secured. We think it clear that this mortgage security was available to Mrs. Barkwell for the payment of the debt due her. [915] We do not agree that, by the course of dealing with the property mortgaged, Mrs. Barkwell is to be held to have relinquished all demaud for any. deficiency in the sum realized by sale of the property. The improper or negligent conduct of Mrs. Barkwell in dealing Avith the property after the transfer of the mortgage security to her, if such there was, whereby the property was lost or its value impaired, will diminish her right to a recovery on the original obligation to the extent of the loss or impairment in value sustained, and the surety, Swan, discharged to that extent. She must bear any loss resulting from any illegal or negligent conduct on her part after taking charge of the mortgaged property, whereby the same was either wholly lost or its value impaired. The question is thus one of accounting, and the rights of the parties in this particular will be made manifest upon a proper accounting. Clopton v. Spratt, 52 Miss., 251. 2. The contention of counsel for appellants that the conveyance in trust from Swan to Gilchrist is void, under § 1296, code of 1880, is not sound. The conveyance of the lands to Gilchrist from Swan was properly acknowledged and recorded, and it is through this conveyance — absolute on its face, but-shown, not by parol, but by another instrument executed contemporaneously therewith, to be really a mortgage— that title is conveyed'to Gilchrist. The agreement entered into contemporaneously with the conveyance was the evidence of the fact that the conveyance, though absolute on its face, Avas, in effect, a mortgage. The conveyance was acknowledged and recorded; the mere evidence of the real character of the conveyance was not recorded. It is sufficient, we think, to say that the only change made in our law since the many adjudications holding that a deed, absolute on its face, may be shown to be a mortgage, is that-provision of our code of 1880, § 1299, which declares that a conveyance or other writing, absolute on its face, when the maker parts with the possession of the property conveyed by it, shall not be proved, at the instance of any of the parties, [916] by parol evidence, to be a mortgage only, unless fraud in its procurement is the issue to be tried. This change in our law, designed to cut off the temptation to perjury by oral evidence trumped up for the occasion, does not touch the evidence offered in this case to show the conveyance is a mortgage. The proof is by a writing executed contemporaneously with the conveyance. 8. The conveyance is not void because, as interpreted in the light of the writing executed contemporaneously, it hinders, delays and defrauds creditors. While the remarks of the court in the cases cited and relied upon by appellants’ counsel (Bank v. Douglass, 11 Smed. & M., 469, and Henderson v. Downing, 24 Miss., 106), support the position that no further time should have been granted in a mortgage to secure pre-existing debts, than the usual period required in collections made by law, yet this remark is not potential in determining the case in hand. Here, two years is the period of extension given in the mortgage; the property consists of nothing consumable in use; and the absolute possession is taken from the grantor and given to the grantee. In the two cases named, the facts are far different. Besides, at the time when the opinions referred to were delivered, the unfavored creditors were powerless to take any step looking to the subjection to their demands of any interest of the grantors in the property^ conveyed. Under our statutes as existing at present, the unsecured creditor may move and secure sale of the grantor’s equity of redemption. This, itself, must be regarded as modifying the doctrine announced in those cases as to extensions of time, and upon which appellant relies. 4. The equity of redemption of Swan should have been subjected to complainant’s demands, as the same may appear upon an accounting. The complainant’s bill sought to subject to the payment of her demand against a non-resident debtor, lands of that debtor lying in this state; and, as an incident thereto, prayed the cancellation of the conveyance to Gilchrist by Swan, as fraudulent upon its face. She sought [917] to subject the whole of the lands as being Swan’s, after cancellation of a deed, apparently fraudulent. But she is met by respondents, who satisfactorily show the deed is really a mortgage, and, therefore, not fraudulent and void. The respondents make it. clear that the absolute ownership in the lands is not in Swan, but that he has only the equity of redemption in.them. The complainant cannot have all that she sought, but she should not be denied that which she is entitled to, if the same can be fairly said to be embraced in the frame of the bill, and in the scope of the relief prayed. If, under the prayer for general relief, the complainant may have other relief than that specifically prayed, not inconsistent with the pui’pose of the bill, it appears to us that she should be allowed to subject to any just demand of hers Swan’s equity of redemption. We adopt this course in the present case with no hesitation, because it is impossible to say that it can surprise the respondents, or injuriously affect them or others. Let the decree beloio be reversed and the cause remanded, to be further proceeded with in accordance with this opinion.