Anderson v. McNeal

82 Miss. 542 | Miss. | 1903

Calhoon, J.,

delivered the opinion of the court.

The fundamental mistake of appellants is the idea that un<ier our statute the mere lapse of the time required to bar the remedy bars it, aud extinguishes the right, whether the debtor chooses to plead it or not. This is an erroneous view. The statute never operates to extinguish the right unless it is pleaded. But McNeal has not pleaded it. In fact, he refuses to plead it, and none can compel him to do so, and, as a consequence, the remedy is not barred, and the right is not extinguished. The debts being in full force, McNeal alone can plead the bar. His creditors cannot make him plead it, as it is his personal privilege to do so or not, as he pleases; and appellants’ rights cannot rise higher than those of the secured creditors where he'refuses to plead the bar. On the subject of the statute of limitations, applicable here, we simply refer to Bower v. Henshaw, 56 Miss., 619; Robinson v. Moore, 76 Miss., 89, 23 South., 631; Kennard v. Alston, 62 Miss., 763; Hunt v. Belknap, 78 Miss., 76, 28 South., 751.

By the deed of March 27, 1900, duly recorded, Bills held the legal title to the lands which were attached in 1902. He says he holds it in trust for the security of appellees, creditors of McNeal. The attaching creditors are in the shoes of McNeal, and can have no higher rights than he, and equity would not listen to a prayer by him to annul Bills’ title without offering to pay the secured creditors.

Appellants and appellees are all creditors of McNeal, and their claims and rights must not be confused with claims and rights which might be well asserted by creditors of Bills against his concealed beneficiaries. The distinction is obvious, and with it in mind the solution of the question in this record is easy. A sale by Bills to a purchaser without notice would, of course, carry the title, and so an attachment by a creditor of Bills would outrank all these Tennessee people. But the controversy between themselves presents a very different case, all being genuine creditors of McNeal. Code 1892, § 4230, has no pertinency to this contest in the category of the parties in this case.

Affirmed and remanded, with sixty days to appellants to answer the crossbill after mandate filed below.