Marshall v. Minter

43 Miss. 666 | Miss. | 1871

Simrall, J.:

Levin B. Marshall recovered judgment in the circuit court of Carroll county, against Samuel B. Marsh, the intestate, on the 12th of July, 1838, for the sum of $3,065 64. On the 8th of March, 1869, injunction was granted, at the instance of Marsh, which was served on Marshall and the sheriff of Carroll county, commanding them “ to refrain from all further proceedings and collecting on execution issued on said judgment, and from any further proceedings against said Marsh, touching any of the matters in said bill contained.” It is not material to set out the merits of the bill in chancery, brought by Marsh against Marshall, praying for, and which induced the granting of the injunction: nor the various stages and steps of the long and protracted litigation begun originally in the superior court of chancery, and subsequently transferred to the chancery court of Adams county, where, in 1858, for want of prosecution, the suit was dismissed at the instance of Marshall. These facts are set out at large, in the bill of complaint brought by Marshall in the chancery court of Carroll county, which charges, in effect, that the delay in bringing the injunction suit to a final trial, was caused by Marsh, who interposed obstacles in the way. And that, because of the delay, the amount due Marshall for principal and interest on his judgment, far exceeds the penalty of the injunction bond ($7,000), and, therefore, he has no adequate remedy at law, on the bond. That since the dismissal of the injunction suit, Marshall had sued out scire facias to revive his judgment, to which Minter, administrator of Marsh, was about to plead the statute of limitations. The prayer is, that Minter, administrator, pay to the complainant, the amount due upon his judgment, as recited in the injunction bond, or that he be restrained from pleading the statute of limitations to the scire facias. The defendant demurred, setting up, 1st, the bar of the statute of limitations to the judgment; and 2d, want of equity.

In April, 1867, an amended and supplemental bill was filed, to which a demurrer was sustained, and both bills were dismissed.

Marshall brings the case to this court, by appeal, and assigns for error, the dismissal of his bill.

The first question presented by the record is, whether the complainant is entitled to any relief on the injunction bond, and if any, to what extent. At law the measure of responsibility on the obligation is the penalty. And though interest on the original indebtedness may exceed the penalty, the excess cannot be recovered. Equity courts, borrowing their principles probably from the Eoman civil law, interfere .in meritorious cases to relieve parties from penalties and forfeitures. It is a well established and most beneficial branch of jurisdiction. The foundation of its relief is, if the party can obtain a performance of the principal obligation, as the payment of his money or damages, he gets all that he expected, and all that in justice he is entitled to — the penalty being regarded in the light of a security.

At law a mortgage is a conveyance on condition. Upon forfeiture of the condition, the title is absolute. The equitable doctrine of redemption rests upon the idea of a relief from a forfeiture upon a performance of the principal duty, payment of the debt, treating the conveyance mainly as a security. Considering the penalty of a bond as primarily meant and intended, to secure the enforcement of a debt or other duty, it would outrage conscience and justice to permit it to be used as an engine of oppression by a perversion to some other purpose. But there must be a reciprocity in the principle in favor of the party for whose benefit the penalty is made. If at any time it fails to be an adequate security and protection to him, for whose benefit it was created without laches or fault on his part, but he is postponed or hindered in his “ legal right ” to enforce it by the act or procurement of the other party, equity would, through its own jurisdiction, give redress. That redress, so far as yet extended, is interest on the penal sum, although at law the recovery would be limited to the penalty. 2d Story Eq. Juris, p. 538, § 1316.

If a mortgagor has given a penal bond as well as the mortgagee for the security of the debt, in a foreclosure suit, equity will decree all the interest, although in excess of the penalty of the bond, and though the mortgage be given by a surety. Clark v. Abingdon, 17 Vesey, 106.

• If there has been unfounded and protracted litigation, interest beyond the penalty of the bond will be allowed; if thereby the obligee has been deprived of his “ legal rights,” when they might otherwise have been made available at law, the court of equity will su bstitute a remedy of its own for the original legal right of which the obligee has been unjustly deprived by the misconduct of the obligor. East India Co. v. Champion, 11 Bligh., 459. In the case of Harris v. Clap, & Whittemore, 1 Mass. Rep., 312, et seq., it was held that interest by way of damages on the penalty might be allowed against both principal and his surety. The case arose on a penal bond to abide by an award.

We are of opinion, therefore, that Marshall is entitled (if he shall choose to accept such redress as the chancery court can afford through its own mode of relief) to interest on the penalty of the injunction bond from the date of the dismissal of Marsh’s bill in 1858 ; not, however, to go beyond the principal and interest of the judgment.

The second question made is, shall Minter, administrator, be restrained from pleading the statute of limitations to the seire facias.

In the cases of Robertson v. Alford, 13 S. & M., 509, and Kilpatrick v. Byrne et al., 25 Miss. Rep., 550, it was ruled that a chancery injunction did not stop the running of the acts of limitation, upon the ground that no such exception is made in the statute, and courts have no power to engraft upon it exceptions not provided for; and secondly, that it. was competent for the debtor to have moved the chancery court so to modify the injunction as to permit suit to be brought, so as to save bar. Both of these cases were at law, and they are presented by counsel for defendant in error as controlling-authority in this case. The judgments in those cases are undoubtedly correct in holding that an injunction propria rigore does not stop the bar of the statute. But here the complainant by implication concedes that the bar has attached at law, but that he has presented such a state of facts as would make it inequitable and against conscience to allow Minter, the administrator, to take advantage of his “ legal right.”

Lord Elden said: “ If there be a principle in which courts of justice act without scruple, it is to relieve parties against that injustice occasioned by its own acts, or oversight, at the instance of parties against whom relief is sought.” Again, he says: “ I consider persons asking an injunction as impliedly saying they ask it upon the terms of putting the plaintiff in exactly the same situation as i£ they had not been entitled.” He considered the suggestion, made at the argument, that on application, the injunction might have been suspended or modified, so as to have allowed suit at law, to save the bar or other loss or hazard that might be incurred, but dismissed it as deserving no weight, grounding his judgment on the fact (?) that it was the “ act of the court, procured at the instance of the party seeking the benefit of the ‘ legal advantage.’ ” Putney v. Warren, 6 Yesey, 90° Equity will remove the legal bar, proceeding from lapse of time, as it would any other legal advantage unconscientiously obtained or sought to be unconscientiously used.

In the case of Bond v. Hopkins, 1 Shal. & Lefr., 428, et seq., certain parties had wrongfully obtained possession of lands (under color of instruments finally condemned), during the investigation of which they were protected by the court. They were not permitted to avail themselves of any length of time pending the investigation, as a bar to him, who ultimately proved to have the rightful title. And in such case, if aid cannot be extended to the party, in a court of law, chancery will proceed to meet out full relief.

In Suzet v. Thrasher, 30 Miss. Rep., 141, the debtor was restrained from setting up the bar of the statute, because he, by his own act, had interfered, and used the process of the court to prevent legal proceedings. Work v. Harper, 31 Miss. Rep., 119, was a controversy between a mortagee and judgment creditor. The mortgagee enjoined the execution levied on property to which he claimed a superior title. The injunction was continued until the lien of the judgment expired. The language of the court was : “ The loss of the lien has been occasioned by himself,.against the will of the appellee without any fault on Ms part, and upon no principle of equity could he be held to his right to the benefit of the mortgagee.” Wilkinson v. Flowers, 37 Miss. Rep., 581.

The fact of enjoining the judgment until the bar attached, was held to be such an unconscientious advantage, that the debtor should be enjoined from setting it up.

We fully concur with Lord Elden, that where a party gains a legal advantage by the act or omission of the court, equity ought not to allow him to avail of it; that if the advantage consists in the bar of the statute of limitations, accrued pending an injunction, although the creditor might have had, on motion, a modification of the restraining 'order, so as to save Ms right, his omission to make the application shall not prejudice him. Story states the general rule thus: “ A party shall not avail oí a legal right for the purpose of fraud, oppression, injustice, or harsh injury.

Let the decree of the chancellor be reversed, and judgment entered here, overruling the demurrer, and cause remanded for further proceedings.