Elder v. Jones

Cook, J., delivered the opinion of the court. One of the questions presented by this record, so far as we have been able to ascertain, has never been decided by this court. B. R. Elder, appellant, conveyed to H. D. King and his assigns two mules, to secure to said King an indebtedness of three hundred and fifty dollars. The instrument, of conveyance provided that, in case the above-mentioned indebtedness was not paid at its maturity, “then the' said party of the second part (King) or any person authorized by him, is hereby authorized and empowered by said party of the first part (Elder) to seize upon and take into his possession all the property herein conveyed, and sell so much thereof as may be necessary at public sale for cash, or private sale, as the party of the second part may deem best,” etc. It. G. Jones, appellee, paid the indebtedness secured by the instrument, and the following indorsement was made on the back of same, viz.: “For value received I hereby transfer the within trust deed to R. G. Jones, without recourse. This 17th day of July, 1911. H. D. King.” Appellant refused to deliver the mules to appellee, after condition broken, and this action in replevin was instituted by Jones, the appel494 lee here. Before this suit was instituted, appellee demanded the payment of three hundred and sixty-seven dollars or the delivery of the mules. Both demands were refused by appellant. The question is: Did appellee have the right to take possession of the mules and sell the same to pay the indebtedness due to H. D. King, the mortgagee, after said indebtedness had been paid by appellee and the mortgage assigned to him, or was the power of sale a personal trust conferred upon H. D. King “or any person authorized by him?” It will be noted that the assignment of the mortgage does not in terms authorize the assignee “to seize and take into possession” the property conveyed to H. D. King. The contention of appellant is stated thus: “But this writing is more than a mortgage. In fact, it confers upon TI. D. King the power to take possession of the mules and sell them to satisfy any amount that may be unpaid after the maturity of the notes. The last office is founded on the doctrine of ‘delectus personae,” which implies confidence in, and knowledge of, the character, skill, and ability of King. In this respect King acts a’s a trustee, and the same rules of law apply to him in his capacity as trustee as it would to a third party had one been named to act as trustee.” The last clause of section 2779, Code of 1906, reads: “And before a sale under a mortgage, or deed of trust, the mortgagor, or grantor shall be deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust, except as against the mortgagee and his assigns, or the trustee after breach of the conditions of such mortgage or deed of trust.” In Buck v. Payne, 52 Miss. 271, Judge Simrall says: “The legal title may be asserted by the mortgagee, but only for the protection of his debt, and to make the security available for its payment.” It will be observed [495] that by section 2779, above quoted, tbe legal title to the property mortgaged after condition broken remains in “the mortgagee and his assigns,” and, whatever may be the view taken by the several courts of other states, it is clear that the legislature thus recognized that an assignment of a mortgage carries with it the leg;al title of the property mortgaged to the assigns of the mortgagee. In Hill v. Robertson, 24 Miss. 368, this court said: “Upon the maturity of a debt and a failure to pay, the legal title became absolute” in the mortgagee. The court in that case was considering a mortgage without a power of sale, but the case is authority for the doctrine that the mortgagee after the maturity of the secured debt and a failure to pay is the owner of the property mortgaged and is entitled to possession to make his security available. As we have said, no case decided by this court has come under our observation which holds that an as-signee of a mortgage has the right to the possession of the mortgaged property after condition broken, but we think the statute clearly recognizes the rights of the as-signee to be the same as the rights of the original mortgagee. After discussing the question and noting the conflict of authority, Mr. Jones, in his valuable work on Mortgages, thus announces his views, viz.: ‘ ‘ The more liberal and better construction is that a power of sale conferred by a mortgage upon the mortgagee, being intended to afford him a means of promptly collecting his debt, is a power coupled with an interest and is therefore appurtenant to the estate and passes ■ with it as part of the mortgage security to an assignee of the mortgage or even of the mortgage debt.” Jones on Mortgages, section 1787. After showing the differences between the rights of a mortgagee and a cestui que trust, and the points of agreement between them, this court, in Clark v. Wilson, 53 [496] Miss. 130, says this: “But the mortgagee, after condition broken, becomes the owner of the estate, is vested with the legal title, and may, at law, have a certain redress predicated of his legal right.” What was the legal right here? Certainly the mortgagee had the right to take the property into his possession for the purpose of selling the same because (a) the mortgage gives him that right, and (b) because the legal title was vested in him after condition broken. He had an estate which he could convey, and we think the appurtenances of that estate followed the legal title. This ease, however, must be reversed because the jury’s verdict is not supported by the evidence. We can find no evidence authorizing a finding of damages, and, besides, it is clear that the jury added the amount of Ecru Bank bill of sale to its verdict, which was unwarranted. The- • bill of sale does not describe the mules in controversy,, and the evidence is undisputed that the mules described in the bill of sale are not the same mules for which re-plevin was instituted. Reversed and remanded-