Green v. Gaston

Citations

• 56 Miss. 748

Syllabus

<p>1. Deed oe Trust. Power of sale. Jurisdiction of chancery.</p> <p>The fact that a deed of trust or mortgage contains a power of sale, and contemplates a foreclosure without the aid of a court, does not preclude a resort to the Chancery Court for the purpose of foreclosure.</p> <p>2. Statute oe Limitations. Art. 28, Code of 1857. Right of action or of entry prior thereto.</p> <p>Under the proviso to art. 28 of “An act for the limitation of actions,” contained in the Code of 1857, which provided, “that this act may he pleaded in any case where a bar has accrued under the provisions thereof,” the period of limitation prescribed by that act, in cases where the right of action or of entry accrued before the act took effect, should be dated from the time the act took effect, and not from the time when the right of action or of entry accrued.</p> <p>3. Same. Prior to Code of 1857. Deed of trust.</p> <p>Under the statute of limitations in force prior to the adoption of the Code of 1857, the beneficiary in a deed of trust was entitled to ten years after condition broken, for the enforcement of the trust, that being the period which barred a right of entry into lands.</p> <p>4. Chancert. Foreclosure of trust-deed. Practice. Proper party.</p> <p>In a suit in chancery for the enforcement of a deed of trust, the trustee should be made a party, but this court will not reverse a decree because of the failure to make the trustee a party, where no objection was made on that account in the court below. The execution of the trust by a decree of the court supersedes the trustee, and presents a ground for restraining him if he should ever assert his legal title.</p>