Wolfe v. Doe ex dem. Dowell

Citations

• 21 Miss. 103

Syllabus

<p>Our statute (Hutch. Code 611,) directs, that upon payment of a debt secured by mortgage, the mortgagee shall, “ at the 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 entry is made, the whole legal and equitable title revest in the mortgagor, as if a formal reconveyance had been made. But until this is done, or some other mode pursued to vest him with the legal title, the mortgagor, even after payment of the debt, has but an equity.</p> <p>A. deed of trust is but a species of mortgage, and is included in the statute, (Hutch. Code, 111,) which provides for the entry of satisfaction upon the margin of the record.</p> <p>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.</p> <p>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 be real or personal.</p> <p>The defendant in an ejectment is not in all cases estopped from setting up an outstanding title, merely because he claims the property from the same source with the lessor of the plaintiff; proof of that fact will make out the case of the lessor of the plaintiff, but the defendant may then show title adverse to that of the common source; or he may show title to a third person outstanding, from that common source, superior to that of the