
    John D. Wolfe vs. John Doe ex dem. Lydia Dowell.
    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.
    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.
    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.
    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.
    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 lessor of the plaintiff.
    In error from the circuit court of Warren county; Hon. George Coalter, judge.
    John Doe, on the demise of Lydia Dowell, brought an action of ejectment for lots 200, 201, 206, and 207, in square 29, as designated on a plat of lots laid off by William M. Pinckard, south of, and adjoining the original town of Yicksburg. At the October term, 1846, John D. Wolfe was made defendant; and a trial was had, which resulted in a verdict for the plaintiff.
    Much proof was introduced, and many exceptions taken; but in view of the case contained in the opinion of the court, it is deemed necessary to notice but a part of the record.
    The plaintiff claimed, by virtue of purchases under various executions against Cornelius Haring and Nicholas H. Rappleye among others, under a sheriff’s sale, made by virtue of an execution on a judgment rendered on the 6th day of November, A. D. 1837, at the suit of Hooper and Bogart against Nicholas H. Rappleye; the sale having taken place on the 17th day of October, A. D. 1842.
    It was in proof on the part of the defendant, that Nicholas H. Rappleye and wife, on the 17th day of January, A. D. 1837, conveyed the property in controversy to Harvey L. Rood and John Templeton, Jr., as trustees to secure to Cornelius Haring the payment of about fifty thousand dollars.
    It was also in proof that Rappleye and wife conveyed the lots in controversy with others, to Cornelius Haring and William M. Pinckard, by deed of warranty, recorded on the 9th of April, 1838, and for the consideration of thirty thousand dollars.
    There was also proof, which tended to show that the debt secured by the deed of trust of the 17th day of January, A. D. 1837, was paid or discharged.
    The defendant claimed under Haring, who sold to John M. Pease, who sold to John P. Coffin, who sold to Wolfe.
    The court, at the instance of the plaintiff, gave these and other instructions, viz.:
    1. “If the jury believe, from the evidence, that Rappleye, in 1837, conveyed the property in controversy, in trust, to secure a sum of money to Haring, and in January, 1838, conveyed the property to Haring by deed of warranty, and afterwards Haring conveyed the property to the person through whom the defendant claims, warranting against all persons claiming under him, the defendant cannot set up the deed of trust in favor of Haring, as a bar to the plaintiff’s right of recovery.
    
      2. “That when the grantor in a deed of trust conveys the property afterwards by deed to the party secured by the deed of trust, such conveyance will extinguish the deed of trust.
    3. “ The presumption of law, as between third persons, is, that a mortgage on property, when the time of payment has elapsed, and no attempt to foreclose it been made, and the property is in the possession of the mortgagor, is satisfied.
    4. “ That if the jury believe the deed of trust given by Rappleye was satisfied, or the notes secured by it arranged and taken up, the deed of trust is not an outstanding title; and the jury may infer an arrangement, or payment, or satisfaction of the deed of trust from circumstances established by the proof, as well as from positive proof.
    5. “That the lapse of time since the execution oí the deed of trust, and the failure to attempt a foreclosure of the deed or demand payment of the notes, the insolvency of Haring, the deed of warranty of Rappleye to Haring and Pinckard, and their deed of warranty to Pease, through whom the defendant claims, are circumstances which the jury have a right to take into consideration on the question of the payment or arrangement of the deed of trust.
    6. “ If the defendant claim title to the property, and entered into possession of it by virtue of the deed from Haring to Pease, through whom the defendant claims, the defendant cannot deny Haring’s title by setting up an outstanding title in a third person.
    7. “ That if both parties to an ejectment suit claim through a common source, the defendant will not be permitted to set up an incumbrance created by such common source, as an outstanding title; that if both parties to this suit claim through Rappleye or Haring, the defendant cannot set up the deed of trust given by Rappleye to secure Haring, as an outstanding title.
    8. “ The principle in law that a plaintiff in ejectment must make out a complete chain of title in himself from the government, does not apply where both parties claim through the same source.”
    Other instructions were asked, and either given or refused, and exceptions sealed.
    
      After the verdict, the defendant moved for a new trial; and on it being denied, sued out this writ of error.
    
      Mason and Burwell, for plaintiff in error,
    Argued the points involved in the record at length; and on the point on which the case turned, cited and relied on Scott v. Scholey, 8 East, 467; Wilkes v. Ferris, 5 John. Rep. 335-343; Brown v. Bartee, 10 S. & M. 268; 7 lb. Ill; Gordon v. Kerr, 1 Wash. Ct. C. Rep. 322.
    
      Smedes and Marshall, for defendant in error,
    Also discussed at length the various points arising on the record; and insisted that if the deed of trust of January 17th, 1837, were paid or extinguished, as they contended it was, the title to the property passed at the sheriff’s sale, and the plaintiff was entitled to the verdict. They cited on this point, Thompson v. Wheatley, 5 S. & M. 499; Goodwin v. Anderson, lb. 730; Moody v. Farr, 6 lb. 100; Brown v. Bartee, 10 lb. 268; Jackson v. Davis, 18 John. Rep. 7; Jackson v. Grafts, lb. Ill; Perkins' Lessee v. Dibble, 10 Ohio Rep. 433 ; Dougherty v. Kercheval, 1 A. K. Marshall, 52; Phelps' Lessee v. Butler, 2 Ohio Rep. 224; Collins v. Tony, 7 Johns. Rep. 278; Jackson v. Pratt, 11 lb.; Jackson v. Parkhurst, 4 Wend. 369i
    On the point that Wolfe could not set up the outstanding title of the deed of trust, because he claimed under Haring, they cited Cooper v. Galbraith, 3 Wash. C. C. Rep. 546; Tellery v. Wilson, 1 Overton, 236; Young v. Algeo, 3 Watts, 223; Riddle v. Murphy, 7 S. & R. 230; Stall's Lessee v. Macalester, 9 Ohio, 19; Starke v. Gildart, 4 How. 267; Robinson v. Parker, 3 S. &. M. 114; Hart's Lessee v. Johnson, 6 Ohio, 42, 6 Ham. 87; Foster's lessee v. Dugan, 8 Ohio, 87.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment in the circuit court of Warren county, for four lots in the city of Vicksburg. Various exceptions were taken in the progress of the trial to the admission and exclusion of testimony; to the charges given and refused by the court; and to the refusal to grant a new trial. As the judgment will have to be reversed, we shall not notice all of the very numerous points made in the cause.

Before we proceed to consider the charges in this case, we will make some remarks in regard to the case of Brown v. Bartee, 10 S. & M. 268, which has been very much relied on by the counsel of the plaintiff in error. There Turner had executed a deed of trust to Wade, for the benefit of Bartee, and had afterwards conveyed the lots to Bartee, by what purported to be an absolute conveyance in fee simple. Wade, the trustee, afterwards sold and conveyed the lots likewise to Bartee. After the execution of the deed of trust, and before the execution of the absolute conveyance from Turner to Bartee, a judgment had been recovered against Turner, and the lots sold under the execution, after the absolute deed had been made, but before the trustee conveyed to Bartee. Brown became the purchaser at the execution sale. It was contended, that the absolute conveyance by Turner to Bartee, was a rescission of the deed of trust, and let in the judgment against Turner. There was no question involved as to the sale of an equity, when the whole interest was, in fact, in the debtor, and nothing but a naked outstanding legal title in another for his use. The truth in that case was, that the rvhole equitable interest was in the creditor, the naked legal title was in the trustee, and the debtor had neither a legal nor an equitable estate. The only point decided, therefore, was, that the purchaser under the execution got nothing, for the debtor had no title of any sort. The case comes far short of deciding, that an equitable interest, whether an equity of redemption or of any other character, cannot be sold under'execution, when the whole beneficial interest is in the judgment debtor, and nothing is outstanding but a naked legal title for his use. Some of the expressions of the court are very general, but when construed with reference to the facts before it, have a very remote, if any, bearing in this cause. They cannot relate to a case in which the trust has been extinguished by the full payment of the debt due, and the whole beneficial interest therefore is in the mortgagor, or grantor in the deed of trust, with nothing but the naked legal title in the trustee for his benefit.

Our statute directs, that upon payment of a debt secured by mortgage, the mortgagee shall, “at the request of the mnrtgagor, enter satisfaction upon the margin of the record of such mortgage, which shall forever thereafter discharge,.defeat and release the same.” (Hutch. Code, 611.) When this is done, 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. See Watson v. Dickens, 12 S. & M. 615. A deed of trust is but a species of mortgage, and is included by the statute.

In regard to the statutes for the sale of trust property under execution, (Hutch. Code, 610, H. & H. 349, 644,) this court has heretofore had occasion to pass upon them, with respect to that particular class of cases in which the vendee of lands holds a bond for title to be made upon payment of the purchase money. It is decided, that where the whole purchase money has been paid, the vendee in such case has a title and interest, which can be sold under execution at law. But if the whole purchase money be not paid, he has no such interest as can be the subject of such sale. But even in the case of a sale of such interest under execution after full payment of the purchase money, the purchaser, it is decided, must go into equity to divest the legal title, and cannot recover in ejectment, tie bought but an equity, which a court of chancery alone- could enforce. Thompson v. Wheatley, 5 S. & M. 506; Goodwin v. Anderson, Ib. 730. In cases of this kind, the original vendor stands in the situation of a mortgagee, and the vendee in that of a mortgagor. Dollahite v. Orne, 2 S. & M. 592; Graham v. McCampbell, Meigs, R. 52. The principle of these cases extends to mortgages, to the sale of an equity of redemption, or to the interest of the grantor in a deed of trust. They are all of kindred character. When the debt is fully paid, the mortgagee or trustee holds but a naked legal title for the debtor, who has the whole ■beneficial interest, which is subject to sale. But until full payment, the debtor has.no interest which can be sold. If satisfaction has been entered upon the margin of the record of the mortgage, as directed by the statute, the purchaser at execution sale obtains the legal title; if it has not been so entered, and the legal title not otherwise revested in the mortgage debtor, the purchaser gets but an equity, which must be enforced in chancery.

These principles will decide this case, when applied to it. The second charge given at the request of the plaintiff, states, that when the grantor in a deed of trust conveys the property afterwards to the party secured by the deed of trust, such conveyance will extinguish the deed of trust.” This charge totally j overlooks the legal title which is in the trustee. Such convey-j anee by the grantor can pass only his equitable title, and the] legal title still remains in the trustee; and until it is pnitedi with the equitable title, an ejectment cannot be sustained. This' is clear, as well from the case of Brown v. Bartee, 10 S. & M. 268, as from the other cases already cited.

The third and fourth charges lay down the doctrine, that if the debt secured by the deed of trust be paid or satisfied, the trust becomes extinguished, and the title absolute in the grantor, so that the title conveyed by the trust deed can no longer be considered as outstanding.” This does not accord with the principles before laid down. In such case, the interest of the grantor of the deed of trust may be reached by execution, but it is only an equitable interest, and the title of the trustee is still outstanding, unless, as before stated, something has been done which is equivalent to a reconveyance. u

The seventh, eighth and ninth charges are but variations of a single proposition; “that if both parties toan ejectment claim title through one person as a common source, the defendant will not be permitted to set up an incumbrance by such person as an outstanding title.” This proposition is too broad. The law is laid down very plainly in Doe v. Pritchard, 11 S. & M. 327. It is there said, “ the plaintiff in ejectment can only recover upon the strength of his own title, as being good against the world, or as being good against the defendant by estoppel.” The plain-, tiff in the first instance need go no farther than the title of the person under whom they both claim. But the' defendant may set up a title adverse to that of such person, and if he does, the plaintiff must show such title to be invalid, or produce some superior title, or fail. The defendant may hold adversely to the debtor, because of an incumbrance. He may have the title of the incumbrancer as well as of the debtor; and if he have, we see no reason why he may not oppose it to the plaintiff. The case referred to of Robinson v. Parker, 3 S. & M. 114, was against the judgment debtor himself. As to him there was an estoppel, and he was therefore not permitted to set up an outstanding title.

To prevent misapprehension, it may be well to remark, that in the case of Thornhill v. Gilmer, 4 S. & M. 163, in which it was held that an equity of redemption was not the subject of seizure and sale under execution at law, the mortgage debt had not been paid at the time of the sale.

We shall not examine the other questions made in argument, because they may not again arise. The case will be reversed and remanded, and the plaintiff can use his discretion as to farther proceedings.

Judgment reversed, and cause remanded.  