Rhodes v. Cannon

• Decision Date: 02 March 1914
• Citation: 164 S.W. 752
• Parties: RHODES et al. v. CANNON.
• Court: Arkansas Supreme Court

164 S.W. 752

RHODES et al. v. CANNON.

Supreme Court of Arkansas.

March 2, 1914.

Appeal from Mississippi Chancery Court; Chas. D. Frierson, Chancellor.

Action by J. S. M. Cannon, administrator for Mrs. E. A. Keiser, deceased, against J. W. Rhodes, administrator for John F. Keiser, deceased, and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to dismiss.

W. J. Lamb, of Osceola, for appellants. J. T. Coston, of Osceola, and Bradshaw, Rhoton & Helm, of Little Rock, for appellee.

SMITH, J.

On the 2d day of January, 1912, appellee instituted this suit to foreclose a trust deed given by John P. Keiser to secure the payment of a note for $12,000 executed on the 30th day of January, 1905, due and payable on the 2d day of January, 1907. After alleging the payment of certain sums as interest, the complaint recites that the maker of said note departed this life on October 17, 1907, and the defendant, J. W. Rhodes was appointed administrator of his estate October 23, 1907, and has since been the duly qualified and acting administrator of said estate, and the said claim was never presented to the said administrator of said estate for allowance, or allowed by him; nor was the same ever presented to the court for allowance. It was further alleged, in order to secure payment of said note, John P. Keiser and his wife executed their trust deed on the 30th day of December, 1905, in which they conveyed to J. W. Rhodes as trustee, for the use of Mrs. E. A. Keiser, certain real estate; that Mrs. Keiser was dead, and J. S. M. Cannon is the administrator of her estate.

The defendants demurred to the complaint for the following reason: "That said complaint does not state facts sufficient to constitute a cause of action in this, that said complaint shows on its face that an administrator of the estate of John P. Keiser was duly appointed, qualified, and acting, and that he has been such administrator for a period of more than four years, and the claim sued on in this cause was never probated, and the same is now barred by the statute of nonclaim."

Appellee took several depositions, which tend to show that certain interest payments were made by the administrator, regardless of the fact that the claim was never presented to him for allowance, and certain letters of the administrator are exhibited, in which he expressed his intention of paying the debt, notwithstanding the fact that the claim had never been probated.

The court overruled the demurrer of the appellants, and rendered judgment against them in the sum of $14,417.50, decreed a lien upon property described in the trust deed, and appointed a commissioner to sell the property in satisfaction of the lien, from which decree of the court this appeal is prosecuted.

Appellants contend that the note sued on and the right to foreclose the trust deed was barred by the statute of nonclaim on the 24th day of October, 1908, and it is conceded that this note was barred by the statute of nonclaim at that time. Mueller v. Light, 92 Ark. 522, 123 S. W. 646, 31 L. R. A. (N. S.) 1013; Stewart v. Thomason, 94 Ark. 60, 126 S. W. 86.

But appellee says the note was never barred by the statute of limitations, and that, before the statute of limitations had run, section 5399 of Kirby's Digest, which provides that the right to foreclose mortgages or deeds of trust shall be barred when the debt therein secured is barred, was amended by the addition of the following proviso: "Provided that in all cases where any indebtedness has been or may hereafter be secured by any mortgage or trust deed, such mortgage or trust deed may be enforced or foreclosed at any time within the period prescribed by law for foreclosing mortgages or deeds of trust, so far as the property mentioned or described in such deed of trust or mortgage is concerned; but no claim or debt against the estate of a dead person shall be probated against such estate whether secured by mortgage or deed of trust or not, except within the time prescribed by law for probating claims against estates." Act May 10, 1911 (Acts 1911, p. 256). Upon consideration of the demurrer, the court below held that the act was retroactive, and that it revived claims which were barred before its enactment, and that the Legislature had the power to revive the claim of appellee and restore the lien.

Able and exhaustive briefs have been filed in the cause, and two questions are chiefly discussed: First, whether the act of 1911 is retroactive; and, second, whether one can have a vested right in the defense of the statute of limitations, where the bar of the statute has once attached as it had here.

Is the act of May 10, 1911, retroactive? If it is not, the debt here sued on remains barred by the statute of nonclaim. Unquestionably the debt was barred by the statute of nonclaim on October 24, 1908, and it remained barred under that statute, in any view of the case, until the passage of this act of 1911. During this time a sale of the land described in the deed of trust might have been made free from any lien created by that instrument; and indeed, so far as we may know from the record in this case, such a sale may have taken place. This condition of affairs demonstrates the wisdom of holding that no statute will be given retroactive effect, if susceptible of any other construction. The Supreme Court of New York, in the case of N. Y. & O. M. R. R. Co. v. Van Horn, 57 N. Y. 473, said: "A law is never to have retroactive effect, unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only. In Dash v. Van Kleeck [7 J. R. 499], Kent, C. J., says that `we are to presume, out of respect to the lawgiver, that the statute was not meant to operate retrospectively'; and that a `statute ought never to receive such a construction if it be susceptible of any other.' In Jackson v. Van Zandt [12 J. R. 168], Thompson, C. J., says: `It is a first principle of legislation that all laws are to operate prospectively.' In Sayer v. Wisner , Savage, C. J., says: `A statute never ought to have such a construction as to divest a right previously acquired, if it be susceptible of any other giving it a reasonable object and full operation without such construction.' The same learned judge says in Hackley v. Sprague : `All statutes are to be construed prospectively, and not retrospectively, unless they are otherwise incapable of a reasonable construction;' and in People v. Supervisors of Columbia County , that `statutes are not to be construed retrospectively, unless they cannot have the intended operation by any other than a retrospective construction.' In Palmer v. Conly , Jewett, J., says: `It is a doctrine founded upon general principles of the law that no statute shall be construed to have a retrospective operation without express words to that effect, either by an enumeration of the cases in which the act is to have such retrospective operation, or by...