Anderson v. McNeal

• Decision Date: 06 April 1903
• Citation: 34 So. 1,82 Miss. 542
• Court: Mississippi Supreme Court
• Parties: WILLIAM T. ANDERSON ET AL v. ALBERT T. McNEAL ET AL

34 So. 1

82 Miss. 542

WILLIAM T. ANDERSON ET AL v. ALBERT T. McNEAL ET AL

Supreme Court of Mississippi

April 6, 1903

FROM the chancery court of Tunica county. HON. A. McC. KIMBROUGH Chancellor.

Anderson and others, appellants, were complainants in the court below McNeal and others, appellees, were defendants there. The suit was an attachment in chancery by complainant Anderson and others, against McNeal, a nonresident of this state and others, all the defendants being residents of Tennessee. The writ was levied upon lands. The bill averted that certain conveyances made by McNeal to his co-defendants were fraudulent and void because they were voluntary and were executed with the intent to defraud complainants in the collection of their debts, and it prayed that these conveyances should be vacated and annulled and the lands subjected to the payment of the debts due complainants. The answer of the defendants denied the fraud, charged that the conveyances were made by McNeal to secure certain debts due by him to his codefendants, and were in fact mortgages for that purpose. These debts were pleaded and the date of the maturity of each was shown to have been more than six years before the beginning of the suit. This answer was made a crossbill against complainants, and it prayed for the sale of the lands as upon a foreclosure of the mortgages, the proceeds to be applied first to the satisfaction of the debts propounded in the crossbill, and the balance, if any, to be applied to complainants' debts. The complainants demurred to the crossbill on the ground that the claims propounded by it against McNeal were barred by the statute of limitations. The court below overruled the demurrer and the complainants appealed to the supreme court.

Affirmed and remanded.

St John Waddell, for appellants.

Section 2737, Code 1892, prohibits all actions on notes unless brought within six years after the cause of action accrues. Section 2733 of said code prohibits a suit in equity for the foreclosure of a mortgage or deed of trust unless brought within the time in which suit at law on the debt secured might have been brought at law, and provides that when the remedy at law to recover the secured debt is barred the remedy in equity on the mortgage shall also be barred.

The case of Wright v. Mordaunt, 77 Miss. 537, opinion delivered by Judge Calhoon, will be found to be a case almost on all fours as to facts with the case at bar except it was a suit at law on a note, whereas the present action is a suit in equity with the additional relief asked of foreclosing a mortgage on Mississippi land. That was a case where the note sued on was executed in the state of Illinois and made payable in the state of Illinois, and both parties to the note resided in that state at the time of its execution and maturity, and under the laws of the state of Illinois the note was not barred by the statute of limitations of Illinois. The maker of the note came to Mississippi and was sued here by the payee and he plead the statute of limitations of six years under sec. 2737, Code of 1892, and the court held that said statute governed, and in cases like that one there were no exceptions to deprive a defendant of the right to invoke the bar thereunder and that sec. 2748, of the Code of 1892 did not apply.

Not only does sec. 2737 apply in the case at bar, but sec. 2755 of the Code of 1892, further declares that, when the period of limitation prescribed has been completed, that not only the remedy for the collection of the debt is barred, but the right itself is gone.

To state appellant's contention more clearly, it is as follows: The debt in question is a Tennessee debt, made in Tennessee and payable in Tennessee, and both the maker and payee have never resided in Mississippi and have always been and are now nonresidents of that state, and more than six years has elapsed since the debt became due, and appellant attached the land for the payment of a debt which was owing them by the debtor at the time he created the debt in controversy, and at the time he executed the mortgage securing that debt, and the debtor and the beneficiaries in the mortgage now come forward and ask that the mortgage be foreclosed and the secured debt paid, and appellant replies by the bar of section 2,737 of the Code of 1892.

Appellant does not plead the statute of limitations of Tennessee, because that statute only affects the remedy for the collection of the debt and not the right to collect, and it is conceded that Where the statute only affects the remedy and not the right, then the pleading of the bar is a personal privilege of the debtor and cannot be availed of by third parties.

Therefore appellants rely exclusively on the statute of Mississippi, the law of the forum, to-wit: The limitations of six years prescribed by sec. 2737, of the Code of 1892, and sec. 2755, of said code, which provides expressly that when the period of limitation has expired it not only extinguishes the remedy but defeats and extinguishes the right also. In other words, when six years had passed sifter the maturity of the debt, not only is the right to collect the debt gone, but the debt itself is extinguished.

This statute operates on the debt itself and abrogates it by the limitation of time without suit, and makes the bar of the statute of limitations in Mississippi of the same force and affect as if the debt had been paid, and a fact which can be set up and relied on by any interested third party.

Patterson, Neely & Henderson and Gilmer P. Smith, for appellees.

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