Imágenes de páginas

against a bank, does not suspend the operation of the statute of limitations

as to claims held by the bank. Robertson v. Alford, 509.
10. The operation of the statute of limitations will not be suspended except by

legislative provision to that effect; and the direction for an injunction to issue,
restraining a bank, against which proceedings are commenced under the
law of 1843, from the collection of its claims, such injunction to have the
force and effect of an injunction in chancery, is not a legislative prohibition
of suit; for such is not the force and effect of an injunction in chancery,
such an injunction being always subject to modification in the discretion of
the chancellor; and upon application, the chancellor, if the party were en-
joined from suing, and the debt were thereby likely to be lost, would qualify

the injunction so as to enable the party to bring his suit. 16.
11. Notes given for loaned money belonging to the school fund of the respective

counties in the state, are not exempted out of the operation of the statute of
limitations; those funds are not the property of the state, but they belong to
the several counties under the control of the school commissioners of each

county. Money v. Miller, 531.
12. When goods are tortiously taken, the statute of limitations begins to run

from the taking, unless fraud is practised to prevent knowledge of their

taking. Johnson v. White, 584.
13. J. purchased from B. and wife negroes which belonged to the children of W.,

and claimed and exercised absolute ownership over them for three years :
Held, that the sale to J. was a conversion, and in an action of trover by the
children of W. against J. for said negroes, that the statute of limitation

commenced running from the time of J.'s purchase. Ib.
14. The debts due the sinking fund belong to the state of Mississippi ; a debtor

therefore, to that fund, when sued by the state commissioner, cannot set up
the statute of limitations in bar of the suit. Hill v. Josselyn, 597.


See Chancery.

See Criminal Law.

1. A stipulation in a mortgage, that the mortgagee may, on the failure of the

morigagor to pay the notes secured by the mortgage, take possession of the
mortgaged property, and receive the rents and profits thereof, until the mort-
gage debt shall be paid, may be enforced by the mortgagee, who may take
possession of the property accordingly upon such failure to pay.

McIntyre v. Whitfield, 88.
2. Yet the property, when taken possession of by the mortgagee, would not

thereby become absolutely his; the mortgagor would be entitled to have the
property back on payment of the mortgage debt; and this right could only

be foreclosed by a decree in equity. Ib.
3. Where a mortgagee has taken possession of part of the mortgaged property,

under a power authorizing him to do so on failure to pay, and to keep the
property until payment, and has filed his bill to foreclose the equity of re.
demption in the property thus in his possession, and for the sale of the resi.
due, the decree should give time to the mortgagor to redeem in, on failure
to do which it will be erroneous.

4. A mortgagee having power by the mortgage to take possession of the property

on default of payment, and keep it and the profits until the debt was paid,
took possession of part of the property, being slaves, and sold them ; and
afterwards filed his bill for the sale of the residue to pay a balance due of
the mortgage debt, after crediting it with the proceeds of the sale of the
slaves: Held, that the proper decree would be to give the mortgagor time to
redeem the property thus taken by the mortgagee, and for an account to be
taken to ascertain the whole sum due on the mortgage after deducting pay
ments; from which sum the value of the slaves when taken by the mortga-
gee, and their hires up to the day of the taking of the account, were also to be
deducied. Should the mortgagor redeem, he was to be authorized by the
decree to do so in four months on his tendering the mortgage debt due, less
the value of the hire of the slaves since they came into the mortgagee's pos-
session ; and if there were any slaves sold by the mortgagee which he could

not deliver up, the mortgagor need not tender their value. Ib.
5. Our statute (Hutch. Code 611,) directs, that upon payment of a debt secured

by mortgage, the mortgagee shall, request of the mortgagor, enter
satisfaction upon the margin of the record of such mortgage, which shall
forever thereafter discharge, defeat, and release the same ; '' when this
er, is made, the whole legal and equitable title revest in the mortgagor, as

mal ?conveyance had been made. But until this is done, or some
other moda pursued to vest him with the legal title, the mortgagor, even

after payment of the debt, has but an equity. Wolfe v. Dowell, 103.
F. A de 1 trust is but a species of mortgage, and is included in the statute,

(12 h. Code, 111,) which provides for the entry of satisfaction upon the

margin of the record. 16.
7. Where a debt, secured by a mortgage or deed of trust, is fully paid, but no

entry of satisfaction made of record, nor the legal title in the mortgagee or
trustee otherwise extinguished, the legal title still remains outstanding; and
though, in such case, the mortgage property is subject to execution against
the mortgagor, yet the purchaser will only acquire the equitable interest of
the mortgagor, to enforce which, he must resort to a court of equity, and

cannot recover the property so purchased in ejectment. Ib.
8. Property conveyed by mortgage or deed of trust is not subject to sale under

execution at law, unless the whole of the debt secured be paid; when the
debt is fully paid, it is liable to such sale ; and it seems this is the case,
whether the property he real or personal. Ib.

at the

I. An equity of redemption in real estate, whether before or after the forfeiture of

the mortgage, is incapable of sale under execution against the mortgagor, in
this state, unless the whole of the mortgage money has been paid, and there

is nothing but the naked legal title outstanding. Boarman v. Catlett, 149.
10. He only has a right to redeem mortgaged property who has an interest in

or lien upon it. Ib.
11. A purchaser, therefore, of mortgaged property under execution against the

mortgagor, before forfeiture of the mortgage, or payment of the mortgage
debt, having by his purchase acquired no interest in or lien upon the mort-
gaged property, has no right to redeem it. It would be otherwise if by the

purchase he acquired any right. 16.
12. Where a note secured by mortgage is payable to a deceased person, no one

but his administrator can enforce the collection of the note by the foreclosure
of the mortgage ; nor will it be any obstacle to the administrator's right to
foreclose, that by some means a judgment has been had at law on the note
against the maker, in favor of the guardian of the heirs of the payee.

Morse v. Clayton, 373.
13. Where a note secured by mortgage does not purport to bear interest on its

face from date, while the mortgage to secure its payment recites that it is
to bear interest from date, the mortgagee will be entitled to the interest

stipulated for in the mortgage. 16.
14. There is no statute in this state which prescribes the duration of a mortgage

lien; it seems that its lien will at least continue in force as long as the debt

it is intended to secure is binding. Ib.
15. An ordinary decree of foreclosure is erroneous which decrees a sale for

cash, unless it be so rendered at the desire of the parties. Ib.
16. Where there is a decree of sale of several distinct pieces of property to pay

one debt, the decree should order a sale of only so much as may be neces-

sary to pay what is due. 16.
17. On the 17th of February, A. D. 1845, M. executed a bill of sale of a slave

to P., and received therefor from P. $150 in money and P.'s note for $200,
due in two years thereafter; M. retaining possession of the slave, and
agreeing verbally with P., that if M. should, by the maturity of the note
made by P., pay the purchase-money, $350, to P., and should pay hire for
the slave at the rate af $ 37.50 per annum, the contract of sale should be
rescinded; the next day P. gave M. a written memorandum to a similar
effect; the slave, at the time, was worth $ 550, and her annual hire $ 85
per annum : Held, in view of these facts, the contract between P. and M.

was a mortgage, and not a conditional sale. Prewett v. Dobbs, 431.
18. The statute (Hutch. Code, 606, § 5,) regulating the liens of mortgages and

deeds of trust, and the period of their taking effect, does not apply to mort-
gages executed out of this state on property out of the state ; and therefore
where such property, so mortgaged abroad, is afterwards brought into this
state, the mortgagee does not lose his right by omitting to record his mort-

[ocr errors]

gage in this state, even as against bonâ fide purchasers for value, without

notice of such mortgage. Ib.
19. Lands under mortgage are not subject to sale under execution against the

mortgagor, on judgments junior to the date of the mortgage; and it is incum-
bent on the purchaser at such a sale, who claims title thereunder, to show
affirmatively that the mortgage has been extinguished.

Henry v. Fullerton, 631.
20. See Deed and Ereculion, how far mortgaged property saleable under.


See Criminal Law.

1. To justify the granting of a new trial upon the gronnd of newly discovered

evidence, it must be made to appear affirmatively that it could not have been

discovered by reasonable diligence before the trial. Dean v. Young, 118.
2. In this case application for a new trial on that ground was made and rejected,

because the facts which are stated in the opinion disclosed that, by reasonable
diligence, the alleged testimony might have been discovered before the trial.

3. In criminal or in civil cases, the verdict of a jury upon the facts will not be

disturbed, unless opposed by a decided preponderance of the evidence, or

based upon no evidence. Cicely v. The State, 202.
4. The case of Magee v. Gregg, 11 S. & M. 70, cited and confirmed.

Magee v. Harrington, 403.
5. The verdict of a jury will not be disturbed because irrelevant testimony has

been excluded, or irrelevant instructions given or refused, if it is apparent
that the jury have not been misled, and thereby been induced 10 return a

verdict contrary to the law or the evidence. Ib.
6. In an action of detinue for a slave, the plaintiff claimed as administrator of the

legatee of the former owner; the defendant claimed as purchaser at a sale
by the administrator of the former owner; the great preponderance of proof
was, that the slave was not included in the legacy to the plaintiff's intestate,
and the jury found in accordance with the weight of proof for the defendant;
it was held not sufficient to set aside the verdict, that the court below had
erroneously refused to allow a witness to answer when asked by plaintiff,
whether the estate of the former owner of the slave was not sufficient to pay
his debts without an abatement of the legacy to the plaintiff's intestate ;
and had also erroneously instructed the jury, that the estate of the former
owner must have been settled up by the probate court, and a decree ren-
dered by that court in favor of the intestate of the plaintiff for the slave,

before he could recover in that suit. lb.
7. Where a new trial has been refused in the court below, and the question arises

in the high court, as to whether the verdict is sustained by the evidence,

that question will be, not, is the verdict clearly right, but is it manifestly

wrong? If not the latter, it will not be disturbed. Waul v. Kirkman, 59).
8. In an action against an alleged secret partner, to make him liable for the con-

tracts of the ostensible partner, it must be affirmatively shown that the
partnership existed, and that the contract in question was on account of the
firm; and when these facts have been so found by the jury, under proper
charges from the court, their verdict will not be disturbed, even though the
preponderance of proof appear to have been against it, and the court would
have been better satisfied with the verdict, had it been the other way.

Lea v. Guice, 656.
9. See Criminal Law.

See Clerk of Circuit Court.

1. A debt due by a deceased person, is not an offset under the statute of 1840,

(Hutch. Code, 854.) to a note given to the administrator for property pur-
chased at his sale of the intestate's property; and this is especially so where

the estate is insolvent. Mellen v. Boarman, 100.
2. An administrator, against whom as such a judgment at law has been ob-

tained by a creditor of the deceased, cannot, by bill in equity, have an in-
debtedness of such creditor, for rent of land which belonged to the intestate,
accrued since the intestate's death, set off against the judgment in the
creditor's favor. The rent belonged to the heirs, and not to the adminis-
trator. Bullock v Sneed, 293.

1. The case of Andrews v. The Planters' Bank, 7 S. & M. 192,-deciding that

where one of two partners subscribes the copartnership name to a note, as
sureties for a third person, without the authority or consent of the other
pariner, the latter is not bound, and it lies upon the plaintiff to prove the
consent or authority of the other, - cited and confirmed.

Langan v. Hewelt, 122.
2. A firm being in debt for a steamboat, sold it to a third party, and took his

notes for the purchase money, payable to their creditor, and one of the part-
ners signed the firm name to the notes of the third party thus given for the
boat, expressing on the face of the notes that they were sureties, and de
livered them to their creditor, who took them in satisfaction of the debt of
the firın to him ; in an action by the creditor on these notes, the partner who
had not signed pleaded non est factum : Field, that under the facts he was
liable on the notes ; it was not the case of one partner signing the firm name
as sureries for a third person, but it was the debt of the firm, and but a

change in the form of the security. 16.
3. While it is true, one partner cannot, in violation of known stipulations in the

« AnteriorContinuar »