McIntyre v. Whitfield

Citations

• 21 Miss. 88

Syllabus

<p>A stipulation in a mortgage, that the mortgagee may, on the failure of the mortgagor to pay the notes secured by the mortgage, take possession of the mortgaged property, and receive the rents and profits thereof, until the mortgage debt shall be paid, may be enforced by the mortgagee, who may take possession of the property accordingly upon such failure to pay.</p> <p>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.</p> <p>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 redemption in the property thus in his possession, and for the sale of the residue, the decree should give time to the mortgagor to redeem in, on failure to do which it will be erroneous.</p> <p>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 payments; from which sum the value of the slaves when taken by the mortgagee, and their hires up to the day of the taking of the account, were also to be deducted. 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 the