Herron v. Land
| Decision Date | 14 January 1929 |
| Docket Number | 27561 |
| Citation | 151 Miss. 893,119 So. 823 |
| Court | Mississippi Supreme Court |
| Parties | HERRON et ux. v. LAND. [*] |
1. LIMITATION OF ACTIONS. Statement in trust deed that former trust deeds by grantor or grantor and wife remained in full force was. promise to pay tolling limitations statute (Hemingway's Code 1927, section 2635).
Statement in chattel trust deed executed by husband that former deeds of trust and notes given by him or by him and wife remained in full force and effect was an unreserved promise to pay and to keep alive all notes and accounts which husband owed, and specifically pointed to that which had been executed by wife and prevented bar of statute of limitations (Hemingway's Code 1927, section 2635; Code 1906, section 3097).
2. LIMITATION OF ACTIONS. Where wife signed homestead, trust deed, husband's acknowledgment in writing of debt before bar of limitations statute bound wife (Hemingway's Code 1927, section 2635).
Where deed of trust covering homestead was signed by wife acknowledgment of debt in writing by husband in chattel trust deed, containing statement that former deeds of trust and notes given by him or by him and wife remained in full force and effect before bar of statute of limitations Hemingway's Code 1927, section 2635 (Code 1906, section 3097), bound and continued original trust deed in so far as wife was concerned.
HON. V. A. GRIFFITH, Chancellor.
APPEAL from chancery court of Wayne county, HON. V. A. GRIFFITH, Chancellor.
Suit by Robert Land against W. H. Herron and wife. From a decree for complainant, defendants appealed. Affirmed.
Affirmed.
Frank Clark and W. M. Hutto, for appellants.
Heidelberg & Clark, and H. R. Stone, for appellee.
On the 23d day of May, 1927, Robert Land, the appellee, filed his bill in the chancery court of Wayne county against W. H. Herron and his wife, Violet Herron, and J. C. Brock, trustee, seeking the foreclosure of a mortgage executed by W. H. Herron and wife in favor of the former on the 8th day of October, 1917, to secure a note due January 1, 1918, and covering certain land in Wayne county, Miss.
Attached to the bill as exhibits was the trust deed mentioned, together with certain chattel trust deeds executed from year to year for annual supplies furnished on growing crops and certain personal property.
The trust deed on the land sought here to be foreclosed appears to have been signed and acknowledged by the wife. None of the chattel trust deeds executed from 1918 to 1925 bore the signature of Violet Herron, the wife. In the chattel trust deed executed by Herron on June 20, 1922, there is contained this language: etc. There is also attached to the bill an itemized statement of account sworn to.
J. C. Brock, the trustee, made a party defendant, came in and submitted himself to the jurisdiction of the court.
The answer of W. H. Herron and Violet Herron denies that Violet Herron ever executed the trust deed, and pleaded a statute of limitations; denied the correctness of the account sued on; alleged that the trust deed was void; and asserted that all the subsequent chattel trust deeds were void for the reason that they were founded on the trust deed which had no trustee. A good many irrelevant matters were set up in the answer.
On the trial, on proof and accounting, the chancellor found that the appellants were indebted to appellee, and ordered a sale of the land in satisfaction of the debt. From that decree appellants prosecute an appeal here.
The first assignment of error which we shall consider is that the note and trust deed securing same were due more than six years before this suit was brought, and that the renewals, one of which is quoted above, signed by the husband alone, not signed by the wife, could not affect the homestead rights of the latter, the land in controversy having been alleged to be a homestead.
If it be conceded that the land in controversy was a homestead, there is no question but that the wife signed the trust deed. Would the acknowledgment of the debt in writing, by the husband, bind and continue the original trust deed in so far as the wife is concerned?
We have thus stated counsel for appellants' position on this assignment of error as best we can interpret his brief.
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