Musser v. First Nat. Bank
| Decision Date | 01 May 1933 |
| Docket Number | 30139 |
| Citation | 147 So. 783,165 Miss. 873 |
| Court | Mississippi Supreme Court |
| Parties | MUSSER v. FIRST NAT. BANK OF CORINTH et al |
1. LIMITATION OF ACTIONS.
Where debt is barred by limitation, mortgage securing it cannot be enforced (Code 1930, section 2290).
2. LIMITATION OF ACTIONS.
Notes were barred six years after due date.
3. LIMITATION OF ACTIONS.
Where no effort was made to renew or extend notes or mortgage securing them until after notes were barred, right and remedy as to notes and mortgage were barred, and could not be revived (Code 1930, sections 2154, 2290, 2313).
4. LIMITATION OF ACTIONS.
Where senior mortgage and notes secured thereby were barred neither junior mortgagee nor one claiming under him was bound to know any facts not of record, nor estopped to claim priority, nor to assert that attempted revival of senior mortgage was void (Code 1930, sections 2154, 2290, 2313).
5. APPEAL AND ERROR.
Senior mortgagee subordinated to junior mortgagee because of limitations cannot complain of decree allowing him to enforce senior mortgage against proceeds in excess of junior mortgage debt.
HON JAS. A. FINLEY, Chancellor.
APPEAL from chancery court of Alcorn county HON. JAS. A. FINLEY Chancellor.
Suit by the First National Bank of Corinth against H. C. Musser and others, wherein named defendant filed cross-bill. From an adverse judgment, named defendant appeals. Affirmed.
Affirmed.
Ely B. Mitchell, of Corinth, for appellant.
Where constructive notice is provided for, it has the same effect as actual notice, and binds equally. Whether actual information thereof came to the party to be charged is immaterial.
20 R. C. L., sec. 3, p. 342; 46 C. J. 541.
The record of an instrument is constructive notice to all persons who are bound to search the record, without regard to the fact of actual notice.
A purchaser or mortgagee is chargeable with notice of the conditions and recitals contained in all the recorded instruments forming his chain of title.
A bona fide purchaser is; one who purchases for value without notice of the equities of third party; one who buys property of another without notice that some third person has a right to or interest in such property, and pays a full fair price for the same at the time of such purchase or before he has notice of the claim or interest of such other in the property.
Whatever the rule may be in case of negotiable instruments it is well settled that the conveyance of land or chattels as a security for an antecedent debt will not operate as a purchase for value. To constitute a party a purchaser for valuable consideration he must have advanced some new consideration either in money or property, or have relinquished a preexisting security for his debt or have done some act on the faith of the purchase itself which cannot be retracted.
Parker v. Swank, 43 Miss. 358-359; Hinds v. Pugh, 48 Miss. 275; Rowan v. Adam, S. & M. Ch. 49; Rollins v. Callender, 1 Freeman's Miss. Ch. 295; Pack v. Harney, 4 S. & M. 255; Emanuel & Barnett v. White, 34 Miss. 56; Pope v. Pope, 40 Miss. 516; McCloud v. First National Bank, 42 Miss. 112; Perkins v. Swank, 43 Miss. 360; Hinds v. Pugh, 48 Miss. 268.
It is a general rule that a new promise to pay a debt or an unqualified acknowledgment of a debt for which a promise to pay may be implied will take a case out of the statute, where it is not coupled with any refusal to pay or accompanied by any circumstances as to repel the inference or to leave it in doubt whether the person intended to prolong the time of legal limitations, even though there is no express promise on the part of the debtor. And even the slightest acknowledgment has been held sufficient.
17 R. C. L., sec. 248, pp. 898-890.
The fact that a debt barred by the statute of limitations still exists affords a sufficient consideration to uphold a new promise to pay it, or as it is sometimes expressed, the moral obligation to pay a debt barred by limitation is a sufficient consideration for the new promise.
17 R. C. L., sec. 249, p. 890.
A mortgagor may revive a note barred by the statute of limitations and by such act revive a mortgage executed to secure it so far as his interests in the premises are concerned.
17 R. C. L., sec. 277, p. 915.
By the weight of authority, the debtor, or his grantee, may, if he still retains his interest in the property, toll the statute of limitations so as to affect subsequent liens which have already attached.
Annotations, Hess v. State Bank of Goldendale, 38 A.L.R. 833.
A revivor by written promise is sufficient as against subsequent mortagees, although they had acquired their liens after the statute had run against the first mortgage, so long as the first mortgage, although barred by the statute, appeared on the record as unsatisfied, the subsequent mortgagees were bound to take notice that it could be revived by the mortgagor.
First National Bank v. Woodman, 93 Iowa 668, 57 A.L.R. 287; Cook v. Union Trust Company, 106 Ky. 803.
Where a mortgage debt has been renewed and extended by an acknowledgment and new promise, avoiding the bar of the statute of limitations, and enforceable against the debtor, a subsequent purchaser of the mortgaged property with notice of the mortgage, but without notice of the acknowledgment and new promise, takes its subject to the incumbrance thus renewed and extended.
Plant v. Shryock, 62 Miss. 821; Bowmar v. Peine, 64 Miss. 99.
Not only does a new promise, part payment or acknowledgment of a note on the part of a mortgagor toll the statute as against himself, but, if made before a conveyance, it will toll the statute on the mortgage securing the note as to the grantee, or other person holding an interest in the property.
Plant v. Shryock, 62 Miss. 821; Dubois v. First National Bank, 43 Colo. 400; Palmer v. Butler, 36 Iowa 576; Clift v. Williams, 105 Ky. 559; Heyer v. Pruyn, 7 Paige 465, 34 Am. Dec. 355; Henson v. Branner, 41 A.L.R. 814.
In an action on a joint and several obligation, a defendant cannot have the advantage of the statute of limitations, pleaded only by his codefendant. The defense being personal must be interposed by the party who would invoke its protection.
Bridgeforth v. Payne, 62 Miss. 777.
It is a fundamental mistake that under our statute the mere lapse of the time required to bar the remedy bars it, and extinguishes the right whether the debtor chooses to plead it or not. It is his personal privilege to do so or not as he pleases.
Anderson v. McNeal, 82 Miss. 546.
The right to interpose the statute of limitations in a suit is a privilege which is personal to the person entitled to plead the statute.
Hopkins v. Clyde, 104 Am. St. Rep. 743.
It has been declared that other creditors cannot complain because the debtor has waived the statute of limitations as to claims due him.
Bringham v. Fawcett, 42 Mich. 542.
A plea of limitations will not be allowed where it would be inequitable and would perpetuate a fraud upon the creditor in the face of the oral promises not to plead the statute in consideration of delay or forbearance in pressing the claim.
Hopkins v. Clyde, 104 Am. St. Rep. 747.
C. L. Sumners, of Corinth, for appellee.
Under the statutes in the state of Mississippi a mortgage or lien securing a debt, or cause of action, is barred at the same time as the debt.
Code of 1930, secs. 2154, 2313.
The statute of limitations on a note runs in six (6) years.
It was formerly the rule that a barring of the debt did not bar the lien thereon. This matter has been regulated by statute in this state.
Where the remedy to enforce any mortgage, deed of trust, or other lien on real or personal property which is recorded, appears on the face of the record to be barred by the statute of limitations, the lien shall cease and have no effect as to creditors and subsequent purchasers for a valuable consideration without notice.
Where a mortgage is given to secure several notes which fall due at different dates, the statute of limitations commences to run as to each note at maturity, and is not postponed until the maturing of the last note.
Code of 1880, number 2685, which is brought forward as 2755, Code of 1892, declares that "the completion of the period of limitation herein prescribed, to bar any action, shall defeat and extinguish the right as well as the remedy; but the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon." The change wrought by this statute is radical. Not only the remedy is denied, the action barred, but the right itself is extinguished upon the completion of the period of limitation. The remedy and the right, whatever it was, are like destroyed. There remains nothing to revive.
Proctor v. Hart, 72 Miss. 288, 16 So. 595; Hembree v. Johnson, 119 Miss. 204, 80 So. 554; McDaniel v. Short, 127 Miss. 520, 90 So. 186; Green v. Green, 145 Miss. 87, 110 So. 218, 49 A.L.R. 565; Jones on Mortgages, secs. 1207, 1209, p. 859, 862; 17 R. C. L. 465, 666, 895, 950.
A junior mortgagee may invoke the aid of the statute of limitations as against a prior mortgage which has been barred by statute.
Jones on Mortgages, sec. 1214, 869; 17 R. C. L. 963, sec. 332.
A lien or mortgage on record barred, by the statute of limitations does not give constructive notice.
A purchaser with notice from an innocent holder takes free of notice.
On March 29, 1919, W. L. Elledge executed three notes to H. C Musser, due in one,...
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