Bowman v. Roberts

Citations

• 58 Miss. 126

Syllabus

<p>1. Deed op Trust. Misdescription of property.</p> <p>A description of a mule, which it is sought to convey in a deed of trust, as “ a light bay mule,” when in fact it is “ a light gray mule,” is a fatal misdescription.</p> <p>2. Same. Practice. Instruction not applicable to facts.</p> <p>In a suit by a trustee to obtain possession of property claimed under a deed of trust, it is correct for the court to refuse to instruct the jury, in substance, that if the deed of trust embracing the property in controversy was executed to the plaintiff as trustee, then the legal title to the property was vested in such trustee until satisfaction of the debt, etc., when it appears to the court that the property was, in fact, not conveyed in the deed of trust.. In such case the charge, though correct as a legal proposition, is not applicable to the facts.</p> <p>3. Same. Misdescription of property. Bona fide purchaser.</p> <p>Where it is attempted to convey the property in a mule by a deed of trust, but there is a fatal misdescription of the mule, a purchaser thereof without notice of such attempt to convey will be protected in his purchase.</p> <p>4. Practice. Instruction. Assumption of fact.</p> <p>An instruction which assumes a state of case that the evidence clearly shows does not exist, is erroneous.</p> <p>5. Deed oe Trust. Right of possession. Cause of action. Limitation.</p> <p>Under a deed of trust which provides that if the debt is not paid at maturity • it shall be the duty of the trustee, upon request of the creditor, to take possession of the property and sell it, there being no other provision requiring the trustee to take possession of the property, the trustee is not entitled to the possession of the property upon the mere default in payment of the debt, and has no cause of action to recover the same until requested by the creditor to take possession thereof for the purpose of sale.</p> <p>6. Same. Power of sale. How construed.</p> <p>The powers of a trustee in a