Mueller v. Light

• Decision Date: 29 November 1909
• Citation: 123 S.W. 646,92 Ark. 522
• Parties: MUELLER v. LIGHT
• Court: Arkansas Supreme Court

123 S.W. 646

92 Ark. 522

MUELLER v. LIGHT

Supreme Court of Arkansas

November 29, 1909

Appeal from Greene Chancery Court; Edward D. Robertson, Chancellor affirmed.

Decree affirmed.

Huddleston & Taylor and W. W. Bandy, for appellant.

The statute of non-claim has no application to a debt secured by a deed of trust. 22 Ark. 535. Payment by an administrator of an unprobated debt of his decedent which is secured by mortgage will not arrest the running of the statute of limitations unless there was no order of the probate court authorizing such payment. 65 Ark. 1. The law presumes that every man does his duty until the contrary is shown. 25 Ark 311. The statute of limitations does not afford a bar to proving a claim against a fund in court. 31 Ont. 495; 19 Pa.Super. Ct. 379.

Block & Kirsch and Johnson & Burr, for appellee.

The note was barred by the statute of non-claim. 84 Ark. 238; 105 S.W. 255; 73 Ark. 45; 68 Ark. 449. The statute of non-claim applies to all claims subsisting against a decedent at the time of his death, whether matured or unmatured. Kirby's Dig., § 110; 18 Ark. 334; 113 U.S. 449; 14 Ark. 246. A payment made by an administrator or executor does not stop the statute from running because it does not amount to a promise of the debtor to pay the balance. 58 Mo. 90; 4 Fla 481.

OPINION

HART, J.

The statement of the case made by counsel for appellant is adopted.

This is an appeal from the action of the chancery court of Greene County in sustaining the demurrer of defendants to plaintiff's complaint. The allegations of the complaint are substantially as follows:

On the 29th day of May, 1900, H. W. Glasscock executed and delivered to the plaintiff a note payable two years after date, secured by mortgage on certain lands in Greene County. On February 25, 1901, H. W. Glasscock died intestate, and on March 9 following M. F. Collier was appointed his administrator. The said mortgage did not correctly describe the lands which H W. Glasscock and the plaintiff intended should be given as security for the payment of the note. One hundred and sixty acres of land were affected by this mistake, it being described as the northeast quarter of a section, instead of the northwest quarter.

In February, 1905, a partition proceeding was instituted by some of the heirs of H. W. Glasscock, in pursuance of which the lands correctly described in the mortgage, together with that intended to be described, as well as other lands, were sold to A. H. Glasscock, son of H. W. Glasscock, on April 14, 1906. The terms on which the sale was made do not appear in the complaint. During the pendency of the partition proceeding, the court ordered that all parties having any liens against said lands be made parties to the suit, but as to the plaintiff in the case at bar the order was never complied with; he was never given any notice of the proceeding.

Only one payment has been made oh the note, which was on November 9, 1905, by A. H. Glasscock, acting under orders and directions and as agent of the said M. F. Collier, administrator.

There was an attempted sale of the property described in the mortgage by exercise of the power of sale therein contained on the first day of July, 1905. The purchaser at this sale assigned a certificate of purchase to the plaintiff as security for the purchase money. This sale was invalid on account of incorrect description of the lands in the notice of sale, they being described as being in township 18, instead of township 17. Plaintiff still holds the certificate of purchase executed at the time of the sale.

On a day which appears blank in the complaint the plaintiff executed to A. H. Glasscock, who made the payment on the note as above set out, his quitclaim deed, conveying to Glasscock all his right, title and interest in and to the property which was properly described in the mortgage--that is to say, all the real estate described in the mortgage except the one hundred and sixty acres, which was incorrectly described.

The purchase money of the lands sold in the partition proceeding has been paid into the hands of the defendant G. O. Light as commissioner of the court, and there remains in his hands, as the share of certain heirs of H. W. Glasscock now claiming a superior right to the same over plaintiff, more than sufficient to pay the balance due on the note. The interest of these heirs in the estate of H. W. Glasscock is three-tenths, he having left five children. Two of them, Frank Glasscock and Jennie Hays, afterwards died, leaving issue. In a divorce decree in favor of J. N. C. Glasscock against her husband, the said Frank Glasscock, before the latter's death, it was provided that he should retain title to one-half of his one-fifth interest in the estate of his father, and that title to the other half of the said fifth should vest in the said J. N. C. Glasscock and all the children of the parties to the divorce proceeding except one. J. N. C. Glasscock and the children thus favored are defendants here, as are also the children of Jennie Hays, whose interest in the estate was one-fifth.

The prayer of the complaint is for a decree correcting the mortgage, so that the same will conform to the intention of the parties at the time of its execution and read "northwest quarter of section fifteen," instead of "northeast quarter of section fifteen," that said mortgage be foreclosed, that plaintiff have judgment against defendants for the balance of his note, and that the same be decreed a lien upon the funds in the hands of G. O. Light, commissioner; or, if this be not done, then that the court ascertain what sum the said northwest quarter of section fifteen brought at said partition sale, and that his judgment be decreed a lien upon said funds.

To this complaint defendants filed their demurrer, setting up their grounds therefor in five paragraphs, as follows:

"1. That said complaint does not state facts sufficient to constitute a cause of action.

"2. That said complaint shows on its face that it is barred by the statute of limitations of five years.

"3. That said complaint shows upon its face that the note of H. W. Glasscock, deceased, was dated May 29, 1900, and that the same bore no credits of payment made by H. W. Glasscock or his administrator, made and paid under proper orders of the probate court.

"4. That said complaint shows upon its face that said note is long since barred by the statute of nonclaim.

"5. That said complaint shows upon its face that the defendant G. O. Light is a commissioner of this court, and that the fund sought to be impounded herein is still in his hands as such commissioner, appointed by the court in the case of Mabel Clare Glasscock v. A. H. Glasscock and others, defendants, and that said Light is still acting in such capacity, under the orders of the court duly made therein."

The court sustained the demurrer, and dismissed the complaint, plaintiff saving exceptions.

The decision of the chancellor was correct. One of the grounds of demurrer is that the complaint shows on its face that it is barred by the statute of limitations.

Can the defendant on demurrer interpose the statute of limitations in equity? In the case of McGehee v. Blackwell, 28 Ark. 27, the court said: "Sec. III of the Code provides for what matters demurrers may be interposed. If the interposition by demurrer of the statute of limitations is proper under the Code, it must be under the fifth clause of section III, which reads as follows: 'That the complaint does not state facts sufficient to constitute a cause of action.' We see nothing in this clause otherwise than permission, at least, of the use of the demurrer in interposing such bar, where the cause of action appears upon the face of the complaint to be barred; for in such case there is in law no cause of action alleged. And this, we believe, is in strict analogy with the old chancery practice."

In equity, when the complaint shows on its face that the cause of action is barred by the statute of limitations, and does not allege facts sufficient to remove the bar, the plea of the statute of limitations may be interposed by demurrer. This rule is announced and approved by all text writers on equity pleading and practice. See also McGehee v. Blackwell, supra.

The complaint shows on its face that the cause of action was barred, and it does not disclose facts sufficient to remove the bar. Section 5399 of Kirby's Digest reads as follows: "In suits to foreclose or enforce mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given." Then follows a proviso which is not pertinent to the issues involved in this suit.

In the case of American Mortgage Company of Scotland v. Milam, 64 Ark. 305, 42 S.W. 417, the court said: "Under this statute (referring to the one quoted) suits in equity to foreclose, as well as suits at law for the possession of the property mortgaged, must be brought within the period of limitation for a suit on the debt which the mortgage or deed of trust was given to secure. The purpose of the Legislature was, simultaneously with the barring of the debt, to extinguish every remedy under the mortgage or deed of trust securing it."

It is insisted that the period of limitation referred to, both in the statute and in the language of the decision supra, means the statute of limitation applicable to the debt had the mortgagor lived; and that it is not affected by the statute of nonclaim after his death.

In support of their contention they cite the cases of Hall v. Denckla, 28 Ark. 506, and Pope's Heirs v. Boyd, 22 Ark. 535. But these cases were decided before...