ON SUGGESTION OF ERROR. Appellants suggest to the Court that in its original opinion full consideration was not given to an alleged trust relationship between Mr. and Mrs. Moore and to the right of Mr. Moore to renew the lease in his name at its expiration.
Analogies drawn from the law of cotenancy are not helpful since the complete emancipation of married women from all disabilities of coverture makes irrelevant a consideration of obligations inter se. Mrs. Moore alone held the title by lease to the property. There is no dispute between husband and wife or their respective successors in title. It is true that the appellant, as an alleged successor in title to C.L. Lincoln, the mortgagee, claims that the lease should have been renewed by Mr. Moore so as to protect the mortgagee's security. But it was not so renewed, and appellees are correct in their *Page 523 statement that such renewal was optional and could not have been compelled.
Since the decision was based upon appellees' title by adverse possession, intimations of possible fraud are now more urgently pressed by appellants than in their original brief. Since no proof of covinous design has been adduced to overturn the presumption of good faith (Virden v. Dwyer, 78 Miss. 763, 30 So. 45), any discussion of the possibilities thereof assumes the aspect of an attack upon the principle announced in Hartman v. Nettles, 64 Miss. 495, 3 So. 234, and Massey v. Rimmer, 69 Miss. 667, 13 So. 832. To these cases and others cited in the original opinion may be added Collins v. Lynch, 157 Pa. 246, 27 A. 721, 37 Am. St. Rep. 723; Lantry v. Wolff, 49 Neb. 374, 68 N.W. 494.
Regardless of what may have been our views if this were a case of first impression, these cases have controlled property rights for over fifty years and no legislation has been passed to modify their effect. We are unwilling to overrule them.
It should not be overlooked that when the lease to Mr. Moore expired all the rights of the mortgagee therein fell with it. This is the pivotal circumstance in the case, and it is to this omission that the mortgagee must attribute his loss. What happened thereafter in regard to its acquisition by another could indeed be deemed irrelevant except as it may involve the title of the new lessee. Arguments of counsel have however made this an issue and we have responded thereto. Had claim of appellees been placed upon the mere fact of the execution of the lease to Mrs. Moore and its validity upheld, all other questions would have been put out of view since the mortgagee was not induced to cancel his deed of trust and procure a renewal by any fraud or act of appellees, and mistake is not involved, and since the deed of trust, through whose foreclosure appellant seeks title, was executed after the mortgagee had record notice of the lease to Mrs. Moore, the situation is much as if there had been a *Page 524 failure of a lessee to renew and the granting of a new lease to a stranger.
The relation of husband and wife constitutes no complication or exception since neither fraud nor mistake is shown. Analogies which involve fiduciary relationships are therefore not here in point. The transaction was in the open and public record made thereof. A mortgagor of realty may cause loss to his mortgagee by allowing his land to sell for taxes or be foreclosed under a prior mortgage or lost by an adverse possession. The mortgagee is under some duty to keep advised as to his seccurity. Here the loss resulted from mortgagor's failure to exercise his option to renew the lease.
Suggestion of error overruled.