ON SUGGESTION OF ERROR. The appellee suggests that we erred in holding that its claimed right of subrogation to the deeds of trust executed by Samuel Thompson, Sr., on the lands here in question, is barred by the statute of limitations. It says that under the maxim, "He who seeks equity must do equity," a court of equity should not permit the appellants to plead the statute of limitations without reimbursing the appellee for the money expended by it in discharging the lien of the Thompson deeds of trust, and, therefore, those deeds of trust should be revived and foreclosed for the appellee's benefit. The maxim invoked applies only to an actor, specifically to one invoking the aid of a court of equity. I Pom. Eq. (3 Ed.), secs. 385 and 386; Griffith Chan. Prac., sec. 43; 21 C.J. 178. It does not apply to a defendant seeking no affirmative relief (21 C.J. 178; Bowdre v. Carter, 64 Miss. 221, 1 So. 162), or where matters pleaded by way of a cross-bill are merely defensive (McIver v. Clarke, 69 Miss. 408, 10 So. 581).
The appellants' original bill prayed for the cancellation of the appellee's deed of trust in so far as it affects the appellants' interest in the land described therein. The asserted right to this relief was grounded solely on the fact that the grantors in the deed of trust were without authority to convey the appellants' interest in the land. The appellee's answer denied the appellants' right to this relief, setting up the appellee's claimed right of subrogation to the deeds of trust executed by the appellants' father, Samuel Thompson, Sr., to the Colonial United States Mortgage Company; prayed that they be revived and the appellee be subrogated to the right of the mortgagor therein; and that they be foreclosed for the appellee's benefit. The appellants, complainants in the *Page 606 original bill, answered this cross-bill denying this claimed right of subrogation, but praying for no affirmative relief, the prayer being that the cross-defendants "be dismissed with costs."
The court below decided the case on the cross-bill, granting the relief therein prayed.
All that we intended to decide when reversing this decree was that the relief prayed for in the cross-bill was barred by the statute of limitations, and the question now presented on this suggestion of error did not arise for the reason that affirmative relief was neither asked by the appellants in their answer to the cross-bill, nor granted them by the court. The appellants' prayer in their original bill for the cancellation of appellee's deed of trust, in so far as it affects their interest in the land, remains to be tried and disposed of by the court below.
The cases cited by the appellee do not support its contention.
In Deans v. Robertson, 64 Miss. 195, 1 So. 159, and Walker-Durr Co. v. Mitchell, 97 Miss. 231, 52 So. 583, the maxim was applied against complainants. Moreover, the statute of limitations was not involved in either of them. In McGee v. Wallis, 57 Miss. 638, 34 Am. Rep. 484, land of a decedent was sold in 1866 under a void judicial sale for the payment of a debt due by the deceased. The purchaser paid his bid therefor, received a deed from the sheriff thereto, and, in 1869, the heirs of the decedent obtained a judgment for the possession of the land against a vendee of the purchaser. This purchaser, thereupon, sued in equity for an injunction restraining these heirs from enforcing the judgment unless and until they should pay him the money paid for the land under the void judicial sale. A demurrer to this bill was sustained, and the decree so doing was reversed on appeal. The complainant there was in possession of the land, with a lien thereon for the money paid therefor *Page 607 at the void judicial sale. The statute of limitations was not there involved.
In Wall v. Harris, 90 Miss. 671, 44 So. 36, a void sale of land was made by a trustee in a deed of trust, and the purchaser went into the possession of the land. The debt secured by the deed of trust was barred, if the statute of limitations should be applied. The court held, in line with its former decisions (see Lucas v. American Freehold Land Mortgage Co., 72 Miss. 366, 16 So. 358), that the owners of the land, under such circumstances, were estopped to plead the statute, but must reimburse the purchaser for the money paid for the land before they could recover the possession thereof.
In the case at bar, there was no change in the possession of the land under the deeds of trust involved.
In Allen v. Alliance Trust Co. et al., 84 Miss. 319, 36 So. 285, 287, Haggart and McMaster purchased land owned by Wilczinski at a sale under a deed of trust thereon executed by Wilczinski to the Alliance Trust Company. Their title became vested, by mesne conveyances, in Allen. The bill of complaint was filed by Allen against Wilczinski's devisees and the Alliance Trust Company, and alleged that Wilczinski's devisees were claiming that the sale under the deed of trust was void. The prayer of the bill was: "First, to cancel the titles of the Wilczinski devisees, and to confirm appellant's title, or, failing in that, Second, to be subrogated to the rights of the Alliance Trust Company, and to charge said plantation with the amount due and unpaid upon the debt secured by the deed of trust. The defendants demurred to so much of the bill as sought to cancel their title and to confirm complainant's title, and by leave of the court, answered the other parts of the bill." The demurrer was sustained. This court, on appeal, affirmed the decree holding the sale under the deed of trust void. In the course of its opinion, the court *Page 608 said: "Of course, the appellant must do equity if he seeks equity, and, just as certainly he would be estopped to set up any statute of limitation against the enforcement of the claim, and the appellee has nothing still to do except to enforce its security in the proper way." As Allen was the complainant in the court below, the maxim, on the face of the opinion, seems to have been applied to a complainant. The word "appellant," however, seems to be a clerical error, and that the Wilczinski devisees were probably meant, but, in either case, the statement of the court was mere dicta, for the question therein referred to was not presented by the demurrer the court had under consideration, and the court expressly said that the only question before it, and all it decided was the validity, vel non, of the sale under the deed of trust under which the appellant claimed. In a branch of the case which appeared in the federal court, that court placed the right of foreclosure of the deed of trust under which the void sale had been made to Allen on the true ground, i.e., that under section 2732, Code 1892, now section 2289, Code 1930, the right to the foreclosure was not barred by the statute of limitations, Haggart v. Wilczinski (C.C.A.), 143 F. 22.
Overruled.