Lucas v. American Freehold Land Mortgage Co. , 72 Miss. 366 ( 1894 )

Woods, J.,

delivered the opinion of the court.

For nearly ten years the appellee has been in possession of the lands in controversy, paying taxes thereon year after year, and exercising all acts of ownership over them. True it is, that the proceedings which culminated in the sales of the lands, under which appellee claims, were irregular, and the sales themselves voidable; but equally true it is that the appellants, during that long period, expressed no dissatisfaction with what had been done, nor took any steps to call in question the rights which appellee was supposed to have acquired under such sales. Now, at length, when the note evidencing the original indebtedness is barred, the appellants for the first time change their attitude and take the position that the legal title to the lands did not pass because of the irregular execution of the trust-deed given to secure that note, and that, the bar of the statute of limitations having accrued, the appellee must surrender, and bear the loss of the lands and the indebtedness as well. But this position of appellants cannot be maintained so long as the beneficent doctrine of equitable estoppel survives in all its vigor. The long acquiescence of appellants in the possession and avowed ownership of the lands by appellee, and until after the debt was barred, cannot operate to transfer their legal title, perhaps, but it both can and must operate to prevent their unconscien-tious assertion of it until they restore appellee to its original position. Until the status quo is restored, they will be estopped to plead the statute of limitations. . Their legal title will not be divested out of them and vested in appellee by estoppel, but the debt of appellee and the security originally given to secure its payment are to be regarded as unaffected by the lapse of time, because of the conduct of appellants, whereby appellee was led to believe, and to act on that belief, that its debt had been paid off by the sales of the lands under the irregular execution of the trust-deed. Staton v. Bryant, 55 Miss., 261; Barnett v. Nicholls, 56 Ib., 622; Kelby v. Wagner, 61 Ib., 299.

If appellee can make good the averments and charges of -its bill, it should be treated as a mortgagee in possession entitled to satisfaction of its debt, or any balance that may appear to be due upon a proper accounting, out of the rents.

Affirmed.