Hembree v. Johnson

• Decision Date: 10 February 1919
• Docket Number: 20508
• Citation: 80 So. 554,119 Miss. 204
• Court: Mississippi Supreme Court
• Parties: HEMBREE v. JOHNSON ET AL

80 So. 554

119 Miss. 204

HEMBREE v. JOHNSON ET AL

No. 20508

Supreme Court of Mississippi

February 10, 1919

Division A

1. LIMITATION OF ACTIONS. Barring of note or indebtedness. Effect.

When an indebtedness secured by a mortgage or deed of trust has become barred by limitation, the mortgage is also barred.

2. LIMITATION OF ACTIONS. Open account secured by deed of trust.

Written promise to pay. Written acknowledgement of indebtedness.

An open account is an unwritten contract and is barred in three years even though its payment be secured by a deed of trust. It is true that the security of payment is in writing, but the thing secured, the account, the evidence of debt, is not a written promise or written acknowledgment of indebtedness but is a verbal obligation and is barred by the limitation of three years.

3 SAME.

The court does not decide that a deed of trust may not be drawn so as to bring an indebtedness upon an account within the six-year statute of limitations, but this is not done where the trust deed fails to do more than secure the payment of an indefinite verbal debt to be made in the future and which is not acknowledge or promised to be paid by the grantors in the deed of trust.

4. MORTGAGES. Foreclosure. Injunction. Tender.

Where the mortgagors tendered the amount due and all expenses incurred by the trustee in attempting to foreclose the mortgage, which tender was refused and was again offered by the mortgagors with their bill for injunction and again refused in such case, the mortgagors were entitled to stop the foreclosure sale by injunction.

HON. A. Y. WOODWARD, Chancellor.

APPEAL from the chancery court of Neshoba county. HON. A. Y. WOODWARD, Chancellor.

Suit for injunction by T. L. Hembree and others against Oscar Johnson and others. From the decree rendered, complainants appeal.

The facts are fully stated in the opinion of the court.

Decree reversed and cause remanded.

Byrd & Byrd, for appellants.

It seems that the chancellor must have gone off on the idea that the statute of limitations does not apply to an account secured by a trust deed. In this he is clearly wrong. Section 2457 of Hemingway's Code, also Huntingdon v. Bobbitt, 46 Miss. 528; Maddox v. Jones, 51 Miss. 531.

That Hembree had the right and authority to direct that the one hundred and nineteen dollars be placed to his credit on the eight hundred dollar note is upheld by the following authorities: Champenois v. Fort, 45 Miss. 355; Rosenbaum v. Meridian Natl. Bank, 73 Miss. 267; Carberyy v. Howell, 75 So. 383, 48 Miss. 175; 62 Miss. 121.

Appellants were clearly entitled to a writ of injunction because they never could, nor never did, ascertain from Johnson the amount he claimed they owed him, secured by the trust deed. If they were entitled to the writ at the time the injunction was obtained, then appellants are not liable for damages in any event. Damages should never be awarded if at the time injunction is obtained appellants were entitled to the writ. Burroughs v. Jones, 79 Miss. 214.

For the foregoing reasons, we earnestly insist that this case should be reversed and a decree here fixing the amounts appellants are due appellee Johnston.

G. E. Wilson, for appellees.

In response to the contention of counsel for appellants that the account for 1913 is barred by the statute of limitations, we call the court's attention to the case of Nevitt v. Baker, and others, 32 Miss. 212, where it is held that: "It is now the settled doctrine of this court that the right of the mortgagee to foreclose is not barred by the same lapse. of time that would bar an action on the notes secured by it."

The same rule is again announced in the case of Wilkinson v. Flowers, 37 Miss. 579, where it is said: "It is now the settled doctrine of this court that the right of the mortgagee to foreclose is not lost because an action for a recovery of the debt secured to the mortgagee is barred by the statute of limitations."

Also the same rule is announced by the Alabama court in the case of Harper v. Raisi Fertilizer Co., 48 So. 589. In this case it is held: "Mortgage foreclosure proceedings could be maintained though the debt be barred by limitations."

But it is our contention that in the case at bar the debt incurred in the year 1913 on open account is not barred and that by the terms of the contract entered into between Hembree and Johnson the same could not be barred in six years. Manifestly this debt or account for 1913 was covered by the stipulations in the mortgage "and for other advances made during the said year."

All of the authorities, so far as we are able to ascertain, hold that where the contract is evidenced by writing that it is controlled by the six-year limitation, instead of the three-year. Vicksburg Water Works Co. v. Y. & M. V. R. R. Co., 59 So. 825, 102 Miss. 504; Cock v. Abernathy, 77 Miss. 872, 28 So. 18; Washington v. Soria, 73 Miss. 665; I. C. R. R. Co. v. Jackson Oil & Refining Co., 71 So. 568.

The last case cited is a very recent case and absolutely decisive of this question.

OPINION

HOLDEN, J.

The appellants sued out a writ of injunction stopping a foreclosure sale under a deed of trust executed by the appellants in favor of appellees, and also asked for an accounting. Upon the hearing of the cause it seems the controversy narrowed down to really but one question, which requires consideration and decision at our hands.

The record shows that before the writ of injunction was sought the appellants tendered to the appellee, trustee, in the deed of trust, the sum of four hundred and ten dollars as satisfaction of the amount due under the trust deed, and offered to pay all expenses incurred by the trustee up to date; and, the trustee refusing to accept the tender, the injunction followed. The injunction bill of appellants denied that appellants were indebted to appellees in any sum greater than four hundred and ten dollars under the deed of trust and again offered to pay this amount in satisfaction of the deed of trust. The bill prayed for an accounting, and it also alleged that two hundred eighty-three dollars and twenty cents of the amount claimed by appellees under the deed of trust was a debt upon an open account made and due in 1913, and was barred by the three-year statute of limitations. The appellees contended that the item of two hundred eighty-three dollars and twenty cents was not barred by limitation,...