Gabbert v. Wallace , 66 Miss. 618 ( 1889 )

Cooper, J.,

delivered the opinion of the court, in reply to suggestion of error by counsel for appellee.

In considering this case originally, we did not overlook the fact,, to which our attention is now called, that the instrument executed by Buffin to secure his debts to Wallace, were deeds in trust, and not mortgages. But since the principles governing our decision were-alike applicable to either instrument, and since the complainant had treated the instruments as mortgages (the trustees not having been made parties to her bill), we dealt with them as such. ,

The question involved is, whether the right which Wallace, the beneficiary in the deeds of trust, had to recover against those who had converted the property conveyed passed by his assignment of' the debt secured, the conversions having occurred before the assignment.

It cannot be doubted, that whether Wallace was a mortgagee of' the property, or a beneficiary in a deed of trust by which it was conveyed to secure the debts due him, the liability of the defendants to'respond to him for its conversion sprang from hiS' ownership of, or right to go against the property itself.

It is equally certain that a transfer by the owner of property does not invest the purchaser with a right of action against those who have previously injured or converted it. It is not believed that any case can be found in which an assignee of a mortgage has been permitted to occupy a higher ground than the purchaser of property, or to sue where he could not have sued, being a purchaser. It is settled in this state that in an action by the trustee in a deed of trust, the damages recoverable are measured by the interest of the beneficiary. Bates v. Snider, 59 Miss. 497.

It is true that in this case the legal title to the property converted Avas in a trustee, but the recovery by him would have been for the use of the beneficiary in the deed ; the real injury Avas to him, and in the case of conversion with the assent of the grantor,, he might release the claim for damages. We fail to perceive any satisfactory ground upon which it can be held, that the right to recover for past trespasses to the property shall be held to be incidentally assigned by a mere assignment of the debt secured, in cases where the assignor is the beneficiary in a deed of trust, it being well settled that no such fight would pass if the assignor was a mortgagee.

The fact that our statute confers the right to assign causes of action arising from torts does not affect the question involved, which is whether the right to sue is a part of the security which passes by assignment of the debt. We have been referred to no case in which such rule has been declared • on clear analogies to well settled principles, it must be denied.

We adhere to the decision as announced, and deny a re-argument of the cause.