| Miss. | Oct 15, 1918
delivered the opinion of the court.
The appellants sued out awrit of injunction stopping a foreclosure sale under a deed of trust executed by the appellants in favor of appellees, and also asked for an accounting. Upon the hearing of the cause it seems the controversy narrowed down to really but
The record shows that before the writ of injunction was sought the appellants tendered to the appellee, trustee, in the deed of trust, the sum of four hundred and ten dollars as satisfaction of the amount due under the trust deed, and offered to pay all expenses incurred by the trustee up to date; and, the trustee refusing to accept the tender, the injunction followed. The injunction bill of appellants denied that appellants were indebted 'to appellees in any sum greater tnan four hundred and ten dollars under the deed of trust, and again offered to pay this amount in satisfaction of the deed of trust. The bill prayed for an accounting, and it also alleged that two hundred eighty-three dollars and twenty cents of the amount claimed by appel-lees under the deed of trust was a debt upon an open account made and due in 1913, and was barred by the three-year statute of limitations. The appellees contended that the item of two hundred eighty-three dollars and twenty cents was not barred by limitation, because that, while it was a debt upon open account for future advances made in 1913, yet it was secured by the said deed of trust executed by the appellants in 1913 to secure the payment of an eight hundred dollar note,' and therefore came within the six-year limitation. The proof is, and it was so decreed, that this eight hundred dollar note, secured by the deed of trust, had been reduced by partial payments until only four hundred and ten dollars remained due on it when the injunction issued in 1918.
The question in the case therefore is whether or not the open account of two hundred eighty-three dollars and twenty cents made by appellants in 1913 was barred by the three-year statute of limitations, or whether the deed of trust rendered the open account a written contract to pay or an acknowledgment • of an indebtedness, so as to bring it within the six-year statute- of
“Whereas, T. L. Hembree and wife, Arah Hembree, are indebted to Oscar Johnson in the sum of eight hundred ($800) dollars as evidenced by promissory note dated Jan. 14, 1913, and due Dec. 14, 1913, with six per cent, interest from date, and the said T. L. Hembree and wife, being desirous to secure, by the deed of trust the prompt payment of said indebtedness at maturity and also any further indebtedness due the said Oscar Johnson that may accrue during the year by reason of advancement made to said T. L. Hembree and wife.
“Therefore, we, the said T. L. Hembree and wife, do hereby grant, bargain; . . . and the said T. L. Hembree and wife do fully authorize said trustee, on failure to pay said indebtedness at maturity, to sell said property hereby conveyed, for cash, . . . and out of the proceeds of said sale to pay said debt, and the expenses of executing this trust.”
The three-year statute is as follows (section 3099, Code of 1906; section 2463, Hemingway’s Code):
“Actions on an open account or stated account not acknowledged in writing, signed by .the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after.”
The exact question is whether or not the indebtedness to accrue for future advances specified in the deed of trust can be construed to be a promise to pay or an acknowledgment of an indebtedness.
We understand the law to be that, when an indebtedness secured by a mortgage or deed of trust has become barred by limitation, the mortgage also is barred. When a note secured by mortgage becomes barred by limitation, or in' any other way becomes canceled, then the mortgage securing the payment of the note is also
We have carefully considered the terms and phraseology of the deed of trust here involved, and we fail to find any promise to pay, or an acknowledgment of the indebtedness contained therein, except the eight hundred hundred dollar note. Therefore the open account in this case was an unwritten contract and was barred three years after it was due. •
We do not say that deeds of trust may not be drawn so as to bring an indebtedness upon an account within the six-year statute of limitation. But the trust deed here fails tó do more than secure the payment of an indefinite verbal debt to be made in the future, and which is not acknowledged or promised to be paid by the grantors in the deed of trust. A suit by appellees for the two hundred eighty-three dollars and twenty cents could only be an action on the open account, and not on the trust deed; and the contract sued on would therefore be unwritten.
The open account of two hundred eighty-three dollars and twenty cents being barred by the statute of limitation, it 'was error to allow it against appellants. When it is taken out of the account against appellants, it follows that the injunction was rightfully sued out, because it was correctly decreed by the chancellor that only four hundred and ten dollars was due on the eight hundred dollar note secured by the deed of trust, and this amount of four hundred and ten dollars
The complaint about the appellees’ attorney’s fees allowed by the court on the dissolution of the injunction need not be considered by us for the reason that, if the injunction was rightfully sued out, then the allowance of the attorney’s fees as damages was error, because, if appellants were entitled to the writ of injunction at the time it was obtained, then it was rightfully issued and could not render the appellants liable for any damages thereby. <
There are other unimportant questions presented by this record, but we see no error in the decree of the chancellor except as pointed out above.
The decree of the lower court is reversed and the cause remanded, with directions to proceed in accordance herewith.
JReversed and remanded.