Tuteur v. Brown

1. Mortgages. Equity of redemption. limitation. Code 1893, \ 2732. A mortgagor who permits the mortgagee, or those holding under him, to remain in possession of the mortgaged land for more than ten years after breach of condition, is, under code 1892, $ 2732 (code 1880, $ 2666), barred of all equity of redemption. 2. Same. Cloud, on title. Parties. A mortgagor who, by limitation, is barred of all equity of redemption, and who has conveyed all interest in the land, is neither a necessary or proper party to a bill to remove clouds from title.

From the chancery court of Madison county. Branigan owned the land in controversy, and executed a mortgage upon it to Garrison.. At the maturity of the mortgage debt, Garrison, more than ten years before this suit was begun, took possession, and, while in possession, he mortgaged the premises to Brown, and, at the maturity of the debt to Brown, the latter took possession from Garrison, and is yet in the actual occupancy of the place. There was no pretense of any acknowledgment of the mortgagor’s (Branigan’s) title or right within ten years before suit begun. Branigan, more than ten years after he had surrendered the possession of the land, conveyed his interest therein to appellant, who began to assert ownership, and Garrison and Brown filed their bill in this case to cancel the deed to appellant as a cloud on the title. Appellant’s demurrer to the bill being overruled by the court below, he appealed. . The maxim, “once a mortgage, always a mortgage,” applies. 15 Am. & Eng. Ene. L., 725 and notes. The equity of redemption cannot be restrained or cut off by agreement. The attempt to do so in the mortgages at bar are void. 1 b., pp. 791, 792, and note 8. The right cannot be waived, lb., p. 827; Pingrey on Mort., vol. 1, pp. 48, 49, 55; 24 Miss., 376; 40 Miss., 469. Garrison is the mortgagee of Branigan, and Brown is the mortgagee of Garrison. Their possession exists only for the protection of their security for the collection of their debts, and, when done, they should have returned the possession of the property to Branigan or his vendee, Tuteur. Pingrey on Mort., vol. 1, pp. 12, 13, 14. It was held in 54 Miss., 357, that when the mortgagee enters, he holds so as to realize out of the income his debt, and when that has been satisfied, he holds, as trustee, for the mortgagor, to whom he shall account. Surely, it will never be held by this court that a trustee can, under the circumstances of this case, invoke the aid of a court of equity to fortify his title by a claim of adverse possession against his eestuis que trust. It was' the duty of Garrison to his mortgagor, Branigan, when he took possession, to receive the rents of the property and apply them to the payment of the secured debt, and, when paid, to have returned the possession to Branigan. He failed in his duty, and now seeks the aid of a court of equity to justify him in a breach of duty, by confirming his claim of title by limitation. Equity, in such a case, will leave the complainants where it finds them, and to do that will necessitate the sustaining of the demurrer, and a dismissal of the bill. It is absolutely certain that appellees have no standing in this case, unless they can rest upon the statute of limitations, and they being the moving actors, cannot invoke the aid of equity for such purpose. It was their duty to have given distinct notice to Branigan that they intended to assert a hostile title to him, before the statute of limitations could begin to run. Garrison took possession, and held the lands adversely until he conveyed to Brown, and Brown has held adversely since. This adverse holding not only cuts off and extinguishes any remedy Branigan ever had, but extinguishes the right as well. Code of 1880, § 2666; code of 1892, § 2782; Ditile v. Teague, 60 Miss., 115; Ellis v. Murray, 28 Miss., 129; Eordv. Wilson, 35 Miss., 190. It is competent to join one adverse possession with another. Benson v. Stewart, 30 Miss., 19. Branigan has no interest in the controversy, and is not a necessary party to it. Garrison, though not asserting it, has an equity of redemption, and is a proper party.