Proctor v. Hart

• Decision Date: 05 November 1895
• Citation: Proctor v. Hart, 72 Miss. 288, 16 So. 595 (Miss. 1895)
• Parties: JOSHUA PROCTOR v. J. & B. HART
• Court: Mississippi Supreme Court

16 So. 595

72 Miss. 288

JOSHUA PROCTOR v. J. & B. HART

Supreme Court of Mississippi

November 5, 1895

FROM the chancery court of Rankin county. HON. H. C. CONN Chancellor.

The case is stated in the opinion.

Reversed and remanded.

J. R Enochs, for appellant.

Under § 2755, code 1892, the former debt is sufficient to uphold the new promise to pay, but to hold that a new note creates a lien is to hold that a lien on land may be created by parol, or on a homestead without the wife's consent.

Wm Buchanan, for appellees.

The intent to extinguish the lien must be clearly shown. Kausler v. Ford, 47 Miss. 289. The vendor's lien is an incident to the debt, and so long as the debt and the relation of vendor and vendee continue, the lien will exist unless some act is done clearly evincing an intention to abandon it. Avent v. McCorkle, 45 Miss. 221.

The vendee may waive the statute as to his personal debts and liens on his own property. Adams v. Harris, 47 Miss. 144; Beasly v. Evans, 35 Ib., 192; Bowmar v. Peine, 64 Ib., 99. The renewal is a mere change in the form of the indebtedness, and in no way affects the lien. 4 Lawson's Rights & Rem., § 1777.

OPINION

WOODS, J.

In December, 1880, one Block sold and conveyed the land described in the bill before us to Proctor, the appellant, reserving his vendor's lien in his deed of conveyance. Several promissory notes were executed by the vendee for the purchase money, the sale having been made, as it appears, wholly upon credit. Of the notes thus made, all were paid, as we infer, except the one for $ 366, which matured last, being payable on January 1, 1884. Not being paid at maturity, the time of payment was extended, in writing, to January 1, 1886. In 1887 Block assigned this note to J. & B. Hart, the appellees herein, and, on the twenty-seventh day of April, 1893, more than a year after the bar of the statute of limitations had accrued, Proctor, the appellant, executed and delivered to appellees the following note, viz.:

"BRANDON, MISS., April 27, 1893.

"On or before November 1, 1893, I promise to pay J. & B. Hart, or bearer, three hundred and twelve dollars and eighty-five cents, it being the last payment as purchase money for the following lands in Rankin county, Miss. [describing the lands], and on which a vendor's lien is retained, together with ten per cent. interest per annum from date until paid. This note is given in lieu of, and in renewal of, my note given to D. Block, December 20, 1880, and due January 1, 1884, for the balance due on said note at this date.

"JOSHUA [HIS MARK X] PROCTOR."

"Witness: WM. BUCHANAN."

This note not being paid, the appellees exhibited their bill in the proper court, praying the enforcement of a vendor's lien upon the lands conveyed by Block to Proctor, the appellant, in 1880, and referred to in appellant's note of April 27, 1893, to appellees. A demurrer to the bill was interposed on the ground of an extinguishment of the vendor's lien before the note sued on was executed, and, this demurrer being overruled, this appeal is prosecuted.

The controversy is limited to the single question necessarily involved in the demurrer, and lying on its face, viz.: Was the vendor's lien revived by the execution of the note to the Harts after the bar of the statute of limitations had attached? Or, to state it otherwise, at the date of the note just referred to, was the note originally given to Block, and the debt which it evidenced, and the security for its payment, all alike...