Klaus v. Moore

77 Miss. 701 | Miss. | 1900

CalhooN, J.,

delivered the opinion of the court.

On February 5, 1892, Spencer Williams delivered his promissory note of that date, payable to Mrs. Henrietta Harris on January 1, 1893, and secured its payment by a conveyance in trust of the property involved in this litigation, 'which was duly recorded.

' Spencer Williams died in September, 1898.' On January 12, 1899, Mrs. Harris assigned the note to E. T. Moore, the appellee, who bought the propérty at trustee’s sale made under that trust conveyance April 21st, 1899, and took possession.

In opposition to this title, Klaus shows that he is trustee under a conveyance of the same property to him to secure A. Kraus, executed by Spencer Williams May 20th, 1898, and, to enforce his claim, he brought his action of replevin against Moore, and lost in the court below.

He says that the debt to Mrs. Harris, evidenced by the promissory note, was barred by the statute of limitations of six years. This is plainly a mistake. That note became due in January, 1898, and Williams, the maker of it, having died in September, 1898, by code, § 2753, it had a year to run after his death,,so that it would not become barred until September, 1899.

But, he says, even if not barred, the lien of Mrs. Harris, under code, § 2462, as amended by the acts of 1896, p. 106, ceased to have effect because after January 4, 1899, “it appeared on the face of the record to be barred by the statute of limitation,” and no “renewal or extension” appeared on the margin of the record.

That statute must be considered in connection with others. Williams, the grantor, under whom both parties claim, was dead before the six years elapsed. He could not, therefore, “renew or extend,” or agree to renew or extend, and, by code, § 2753, one year from his death is to be added to the six years. So the bar was not complete until September, 1899, before which date the trust was enforced.

But § 2462 was enacted to protect creditors and purchasers who parted with something on the appearance of the record, and cannot be availed of by Klaus. He took his junior trust conveyánce before there was the appearance of any bar on the record, and is neither creditor nor subsequent purchaser within the meaning of this statute.

He also invokes code, § 4231, in the statute of frauds, in support of his contention that the assignment by Mrs. Harris to Moore is void. This statute has no sort of relevancy. It refers to “grants, assignments, or transfers of any trust or confidence,” and requires such to'be in writing, acknowledged, and recorded.

There is nothing of that sort here. There is no trust or confidence between Mrs. Harris and Moore. She simply assigned to him a promissory note and the security she had for its payment. She did not assign to him any trust. Even if the assignment were void, Klaus could not complain. Mrs. Harris only could complain. If it were void, then the title remained in Mrs. Harris’ trustee, and he sold to Moore.

Affirmed.