Rhodes v. Cannon

• Decision Date: 02 March 1914
• Citation: 164 S.W. 752,112 Ark. 6
• Parties: RHODES v. CANNON
• Court: Arkansas Supreme Court

164 S.W. 752

112 Ark. 6

RHODES v. CANNON

Supreme Court of Arkansas

March 2, 1914

Appeal from Mississippi Chancery Court, Osceola District; Charles D Frierson, Chancellor; reversed.

Decree reversed and cause dismissed.

W. J Lamb, for appellants.

1. The note sued on and the right to foreclose the trust deed was barred by the statute of nonclaim on October 24, 1908. Acts 1907, page 1170.

The claim was never presented to the administrator and is barred. 92 Ark. 522; 94 Ark. 60. When the claim became barred by the statute of nonclaim, the right to foreclose or sell under the power contained in the deed of trust was also barred. Kirby's Dig., § 5399; 64 Ark. 317.

2. The court erred in holding that the act amending section 5399 of Kirby's Digest, Acts 1911, page 256, was retroactive and that the Legislature had the power to revive the claim and restore the lien. Retroactive statutes when they affect substantial rights are not favored in the law, nor will they be given that effect if they are susceptible of any other construction. Nothing in the language of the above act indicates a legislative intent that it has any reference to claims already barred by the statute of nonclaim; and in the absence of language, clear and unequivocal, indicating an intention on the part of the lawmakers that the act should be retroactive in its application, no such construction will be placed upon it. 6 Ark. 484; 63 Ark. 573; 68 Ark. 333; Cooley Const. Lim., 455; Black, Interp. Laws, 251, § 103; 57 So. 724; Id. 977; 126 P. 158; 74 S.E. 1010; 143 S.W 361; 96 N.E. 857.

Even if the Legislature had intended to make the act retroactive, it had no power to do so. A right which has accrued by the bar of a statute of limitations is a vested right which can not be taken away by legislative enactment. 6 Ark. 484, 494-6; 10 Ark. 516-526; 11 Ark. 183-186; 31 L.R.A. 70; 43 N.E. 367; 45 S.E. 288; 61 P. 901; 29 S.W. 450; 78 P. 680; 30 Ala. 120; 44 P. 451; 91 P. 330; 1 Ore. 176; 64 Ky. 452; 8 Black. (Ind.) 506; 49 P. 553; 4 Tex. 470; 57 Tex. 142; 10 N.H. 386; 13 Fla. 393; 38 Ga. 300; 2 Ind. 647; 121 Mass. 558; 54 N.H. 167; 41 N.J.L. 9; 90 N.C. 542; Cooley's Principles of Constitutional Law (3 ed.) 359; Id. 351; 70 Ark. 49-53; 120 Am. St. Rep. 479, note; 95 Id. 659, note; 3 S.W. 249; 72 Am. Dec. 630; 20 S.E. 26; 52 So. 298; 39 Am. Rep. 561.

J. T. Coston and Bradshaw, Rhoton & Helm, for appellee.

1. After reviewing the history of the enactment of the act of May 10, 1911, and the causes leading up to it, particularly the agitation over the State growing out of the decision of this court in Mueller v. Light, 92 Ark. 522, counsel contend that the act gives the holder of a mortgage a remedy against the security though the debt had been barred by the statute of nonclaim, and that that was the purpose of its enactment.

2. If, in this State, an administrator can waive the statutes of limitation, it is certain that that was done in this case, not only in writing but in the monthly payment of interest up to and including June, 1910. In many jurisdictions it is the rule that a personal representative has the power to waive the statute of limitations. 8 How. 402; 111 U.S. 640; 7 Ala. 598; 20 Ala. 147; 78 Ala. 260; 64 Ala. 438; 130 N.W. 817; 87 S.W. 1093; 100 S.W. 253; 125 S.W. 177; 49 Md. 14; 59 Md. 291; 112 Md. 122; 13 Mass. 201; 16 Mass. 429; 180 Mass. 27; 11 N.H. 208; 64 N.H. 461; 36 N.J.L. 44; 61 N.J.Eq. 188; 72 N.J.Eq. 366; 36 N.C. 92; 38 N.C. 442; 58 N.C. 168; 100 N.C. 99; 108 N.C. 571. In this State an administrator is not bound to plead the statute of limitations under ordinary circumstances. 68 Ark. 492; 22 Ark. 290. See also 66 Ark. 464; 71 Ark. 165; 25 Cyc. 1012 F; Id. 1016.

The debt is not barred as to the wife, Susie W. Keiser, who joined in the execution of the trust deed; and if it was not barred as to her, it was not barred as to J. P. Keiser's estate. 34 Ark. Law Rep. 478; 25 Cyc. 1383-1387.

3. There is no vested right in a mere defense to a personal demand. 3 Kan. 507; 115 U.S. 620; 51 Tex. 251; 78 Tex. 33; 18 Ala. 248; 45 L.R.A. 609; 14 L.R.A. 59. See also, as supporting appellee's contentions, 8 Cyc. 923, note 58; 181 Mass. 383; 213 Ill. 322; 41 S.W. 287; 57 Wash. 602.

OPINION

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 defendant 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; Stewart v. Thomasson, 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, page 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, 5 Am. Dec. 291, Kent, C. J., says that 'We are to presume, out of respect to the law-giver, 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, Thompson, C. J., says: 'It is a first principle of legislation that all laws are to operate...