Hambrick v. Jones

64 Miss. 240 | Miss. | 1886

Campbell, J.,

delivered the opinion of the court.

The note was not barred when the new promise was made, and the deed of trust was continued in force by the new promise so as to be paramount to the claim of a homestead. Smith v. Scherck, 60 Miss. 491.

The note was due January 1, 1876. The payee died in October, 1876, in Alabama, where his will was proved and letters testamentary granted to the appellee, who is not shown to have qualified herself to sue in this State; therefore, the bar of the statute had not become complete in January, 1883, when the new promise was made, if the Code of 1871 was applicable. Clayton v. Merrett, 52 Miss. 353.

The Code of 1871 was applicable by virtue of § 2692 of the Code of 1880, as a bar had not accrued under it. This section continued in force existing laws as to rights of action accrued before that time until a bar should accrue under the Code of 1880, so that rights of action accrued under the Code of 1871 were still to be governed by its provisions as to limitation, unless a bar should accrue under the Code of 1880. In this case a bar had not accrued under it. The statute prescribing six years as the time to bar a note, the same in both codes, did not bar the note, because by the Code of 1871, continued in force as to this by the Code of 1880, the person entitled to an action on the note had died before the expiration of the time limited therefor, and the right of action was saved “ after the expiration of said time- and within one year after the date of letters testamentary.” Code of 1871, § 2162.

Section 2683 of the Code of 1880 did not apply, because it is applicable only where the death of the person occurs within the last year of the time limited, and, if it was retroactive so as to govern in case of the death of a person before it took effect, it did not apply in this case, because the death of the party did not occur within the last year of the time for the completion of the bar.

Six years after the maturity of the note expired January 1, 1882, fourteen months after the Code of 1880 became operative, and, if § 2683 of the Code of 1880 be regarded as expressive of the legislative will, that the saving made by § 2162 of the Code of 1871 shall no longer prevail and that six years should bar all claim on a note, except where the death of the person occurred in the sixth year of the time allowed for an action, the commencement of the six years would be November 1, 1880, when the code took effect, because time did not run under it until then. Brown v. Wilcox, 14 S. & M. 127 ; Kilcrease v. Shelby, 23 Miss. 161; Waul v. Kirkman, 25 Miss. 609; Buckingham v. Riggs, 27 Miss. 751; Benson v. Stewart, 30 Miss. 49.

The decree enforcing the deed of trust as to the land is therefore correct. But it is erroneous in so far as it vacated the conveyance of personalty made by Hambrick to his wife. The bill avers that this conveyance was fraudulent. The answers deny it, and there is no evidence on this issue. It is shown that a transaction by Ham-brick on July 12, 1883, as to the land was fraudulent, but that does not prove that the sale of personalty to the wife was infected. The two transactions were independent, and there is nothing to show that the answer of the wife, responsive to the bill, is not true, and it must be regarded as true, and if true the sale to her was valid.

But it is said the decree must be reversed, because a formal decree pro oonfesso was not entered as to Jaimagin, the trustee, before final decree, and because the Chancellor computed the amount due by the note, without a reference to a master to compute the sum due and a formal report by him, and cases are cited supporting this view. Bevill v. McIntosh, 41 Miss. 516; Freeman v. Ledbetter, 43 Miss. 165 ; Walker v. Joyner, 52 Miss. 789.

We are constrained to admit that the citations fully support the contention, but as this is a mere rule of practice, the change of which to meet the demands of common sense can do no harm, we overrule those decisions, and announce that a failure to take a decree pro oonfesso, when the record shows it was proper, and the ascertainment of the sum due on a promissory note without reference to a master, will not cause a reversal of a decree otherwise correct, even where the appellant is the person against whom the pro oonfesso should have been taken. A fortiori, is it not ground for reversal where the person is another than the appellant. Knowles v. Summey et al., 52 Miss. 377; Code of 1880, § 1440.

Decree reversed and vacated as to the conveyance to Mrs. Ham-brick, and affirmed as to all else, and costs of appeal to be divided.