Tishimingo Savings Institution v. Buchanan

60 Miss. 496

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Campbell, C. J.,

delivered the opinion of the court.

The appellant was authorized by its charter to loan money, and secure it by taking a deed of trust on land. The note of the Messrs. New to the appellant was not barred by the Statute of Limitations at the commencement of this suit.

The sale under the deed of trust to the appellant, and the purchase by A. H. Taylor, if not vacated by the decree of the District Court of the United States at Oxford, should be set aside because of the circumstances attending it, and the appellant should stand as a creditor holding the note secured by the deed of trust, to the extent that the note has not been paid. Interest should be computed on said note at ten per cent, unaffected by the tender by Buchanan ; an account should be taken of the rents and profits of the property in controversy, and a decree be made for the payment out of the property covered by the deed of trust of any sum due the appellant, and the remainder devoted to Buchanan.

This is the result of a very careful consideration of the questions presented by this case, and we deem it unnecessary to elaborate the views, conducting to it. We repudiate the doctrine that a tender of the sum due discharges the lien of a mortgage or deed of trust. There was a reason for such doctrine when a mortgage was an absolute conveyance of the estate, if the debt was not paid according to its terms ; but it is without any sensible foundation in the present view of mortgages as mere securities for debts. And we think Buchanan’s tender of the money did not stop interest on the debt, because he has since assailed the validity of the claim, and sought to have it cancelled because of alleged nullity. It is true he declares his readiness to pay what may be legally due on it, but he asserts there is nothing due, and this is inconsistent with a tender.

The continuance of interest until payment is vindicated by our opinion in Meaders v. Gray, ante p. 400.

The denial of the right of appellant to two per cent a month, as stipulated in the note, is founded in the view that the right to “ receive such rate of interest as may be mutually agreed upon by said company with its customers” was not intended to confer on the appellant the exclusive privilege of charging a rate of interest which it was unlawful for others to receive. If the language of the charter as to interest can be reconciled with the general law of the lancl on the subject of interest, it must be assumed that the legislative intent was to confer the right to agree for interest, within the limits prescribed by the law for all. A doubt whether-the Legislature intended to confer upon a corporation power to bp-gain for interest not allowable to others must always be'resolved against the power, and it cannot be affirmed of the charter of appellant that it was the unmistakable purpose of the Legislature to confer this power. Simonton v. Lanier, 71 N. C. 498.

Decree reversed, and cause remanded for proceedings in accordance with this opinion.