Parker v. Gillis

Smith, C. J.,

delivered the opinion of the court;

On January 7, 1912, appellant was the owner of two horses here in question, upon which there was a deed of trust executed by him to secure a debt due by him to the holder thereof. In order to pay off this deed of trust he borrowed from appellee Sanford the sum of one hundred and fifty-two dollars and fifty cents, executing to him his note therefor due on the 1st day of December, 1912, secured by a deed of trust upon the horses. This money was used in paying off the prior deed of trust. In March following, appellee Gillis, trustee in this deed of trust, at the request of Sanford, took possession of these-horses for the purpose of selling them and applying the proceeds to the payment of the debt due Sanford, claiming that they were being dealt with by appellant in such manner as to impair the lien .of the deed of trust. This suit, which is one in replevin, was then instituted by appellant to recover from. Gillis and Sanford the possession of the horses. At the close of the evidence there was a peremptory instruction for appellees. This instruction is claimed by appellant to be erroneous on two grounds:

The first ground is because the evidence discloses that he was a minor at the time of the execution of the note and deed of trust. There was evidence to the effect that appellant was a minor at the time of the execution of this, deed of trust, and, if the fact be that he was such, then he was entitled to repudiate his contract. This objection to the peremptory instruction is therefore well taken.

The second ground upon which this instruction is objected to is that, at the time Grillis took possession of these horses, the note executed by appellant had not matured, and the deed of trust securing it contains no provision authorizing the trustee to take possession of the property until condition broken. It is true that this deed of trust contains no provision authorizing the trustee to take possession of the property therein conveyed for any reason prior to the maturity of the note thereby secured; consequently the taking of the property by appellees was wrongful, and, at the time this suit was. instituted, appellant was entitled to the return thereof. Buck v. Payne, 52 Miss. 271. When the cause was tried,, however, the note secured by this deed of trust was past due, and therefore appellees then had the right to possession of the property, provided appellant was not a. minor at the time of the execution of the deed of trust.. What appellant’s rights are in this connection, with reference to court costs and damages for the unlawful taking, are not before us, and we therefore express no-opinion thereon.

Appellees claim that this loan was procured by appellant by means of a fraudulent representation; the-representation being that he had rented certain land on which he would make a crop during the year 1912, and the exhibition to Sanford of a note from the owner of this land waiving any lien for supplies to he furnished, when in truth and in fact he had not rented this land, and had made no arrangement to make a crop thereon, and therefore appellee Sanford had the right to rescind his contract with appellant and to have the deed of trust foreclosed without waiting for the maturity of the note. It may he conceded that appellees had the right to dis-affirm Sanford’s contract with appellant and to proceed in the proper court to obtain whatever relief to which they became thereby entitled, as to which we,' of course, express no opinion, for the attempt here is not to dis-affirm the contract but to enforce it. Appellees’ right to the possession of the property, in so far as this controversy is concerned, depends solely upon the deed of trust.

Reversed and remanded.