Beard Bros. v. Daughdrill , 102 Miss. 480 ( 1912 )

Heed, J.,

delivered the opinion of the court.

The appellees filed a bill in chancery asking for the sale of a lot in the city of Laurel for division of proceeds. They allege that they were owner of an undivided half interest in the land, and that appellant owned the other half. They claim their title as the heirs at law of H. C. Daughdrill, Sr., deceased, husband of Mrs. Alice Daughdrill and father of the other complainants. Appellant obtained a one-half interest in the land through purchase from Mrs. Wahrendorf. H. C. Daughdrill, Sr.,, executed a deed in trust on the other half interest in the land, which deed in trust was foreclosed and the property purchased by A. Vizard, the holder of the secured indebtedness. The appellant purchased the interest acquired by Vizard. Over ten years intervened between the purchase by Vizard and his acquiring possession of the property, and the filing of the bill in this case. The cause was heard upon bill, answers, depositions, agreement of counsel, and record testimony. The chancellor decreed that Mrs. Alice Daughdrill and her two oldest children, H. O. Daughdrill' and J. H. Daughdrill, were barred by the general ten-year statute of limitations (section 3091, Code 1906; section 2731, Code 1892), but decided that Garnett Daughdrill and Allen Daughdrill, being under thirty-one years of age, were each entitled to an undivided one-tenth interest in the land, leaving the appellants as the owner of an undivided eight-tenths interest.

This case is controlled by section 2732, Code 1892, which reads as follows: “When a mortgagee, after condition broken, shall obtain the actual possession or receipt of the profits or rent of land embraced in his mortgage, the mortgagor, or any person claiming through Mm, may not bring a suit to redeem the mortgage but within ten years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given in writing, signed by the mortgagee, or the person claiming through him; and in such case a suit may not be brought but within ten years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; but such acknowledgment shall be effectual only as against, and to the extent of the interest of the party signing it” — and by the decision of this court in the case of Garrett v. Ellis, 98 Miss. 1, 52 South. 451. Mayes, C. J., in delivering the opinion of the court in that case, said: “This section contains no saving clause as to minors or other persons whomsoever, and when once it is shown that the mortgagee, after condition broken and without fraud, actually obtains possession of the land, or receipt of the profits or rent of land, embraced in his mortgage for the period prescribed by statute, his title is complete. The statute above quoted is explicit and positive, and gives the mortgagee title when he has obtained actual possession, or when he has been in receipt of the rents and profits of the land for more than ten years. . . . The statute is purely a statute of limitations, peremptory in its commands, and utterly without indulgence. Such statutes as this, though seemingly harsh at times, yet work out much good in the adjustment of affairs between man and man, and prevent more wrong than they perpetrate.”

In the instant case it is clearly shown that appellant obtained and had actual possession of the land, was a mortgagee in possession after condition broken, and has been in receipt of the profits or rents thereof for over ten years before the filing of the bill, and under the statute above quoted appellant’s title to the lot is complete.

There is a suggestion by the counsel for appellees as to the identity of the land in controversy. They claim in their briefs that the lot is not the same as that described in the original deed in trust. This is fully settled by the allegations in the bill of complaint filed by appellees themselves, the answer thereto, and the agreement of counsel for both appellant and appellees.

The decree of the chancellor is reversed, and decree entered here declaring the entire title to the land to be in appellant, Beard Bros. Company, and canceling the claim of appellees,'the complainants in the original bill, as a cloud upon the title of Beard Bros. Company.

Reversed.