Matthews v. Matthews, 66 Miss. 239

Matthews v. Matthews

66 Miss. 239 | Miss. | 1888

Campbell, J.,

delivered the opinion of the court.

The plea of the statute of limitations should have been held to be insufficient. This defence has no place in the case. When the ■case was here before, we reversed the decree, because we were unwilling to enforce specifically the agreement by which the title of the land had been vested in Mrs. Matthews, and remanded the cause for the personal representative of the estate of H. J. Wilson to be made a party, and that the judgment might be enforced by a sale of the land. The sole object of having the administrator .of H. J. Wilson’s estate brought in was that he might receive the ■excess of the proceeds of a sale of the land over the sum necessary to satisfy the judgment.

*244The land of the decedent had been decreed to be sold for the payment of debts — this debt specifically and another — on the petition of the administrator, and upon proper proceedings, to which the heirs were parties, and it had been sold, and was forever gone from the heirs, as matters stood, with no movement by them to undo what had been done, and with no inducement for them to so move, for, if they should successfully complain of the manner of the execution of the decree of sale, the debts were a charge on the land as long as they remained unpaid. All that the estate of H. J. Wilson could gain by vacating the sale of the land would be the excess of the proceeds of another sale over what was necessary to pay the judgment, and as to that the personal representative was the proper party to receive it. Therefore it was unnecessary and improper to require the heirs of H. J. Wilson to be made parties, in addition to the administrator. But that made little, if any, difference, as the plea of the statute of limitations was interposed by the administrator and heirs.

The plea is not good as a defence by the administrator. The land had been sold specifically to pay this debt. It was arranged that the debt should be satisfied by this land. It was bid off and conveyed to Mrs. Matthews for the purpose of being vested in the complainants, in satisfaction of the judgment. The debt was considered and treated as having been paid by the sale that was made, and the administrator of H.. J. Wilson (William H. Matthews) was the leading actor in making this arrangement and producing this understanding.

Upon all the facts presented, the court was unwilling to compel a conveyance of the land by Mrs. Matthews ; but as she was not entitled to hold it, and the judgment remained unpaid, it was deemed proper to have a sale of the land, first to pay this judgment, and then for any excess of its proceeds to go to the estate of H. J. Wilson, as would have been the case, if at the sale made before, an excess had been produced. In this condition of things, the statute which bars judgments had no operation, and cannot be interposed as a bar to the proceeding for a resale of the land — a *245nuno pro tuno proceeding to effect justice, in which the status quo ante the sale, of the judgment should be preserved. Sivley v. Summers, 57 Miss. 712 ; Weaver v. Norwood, 59 Miss. 665.

That the estate of H. J. Wilson had not been declared insolvent, does not affect the question as to the statute of limitations, in the circumstances of this case.

Another complete answer to the plea of the statute of limitations is that W. H. Matthews, administrator of the debtor estate, in 1877, when the judgment was in full force, petitioned the court for a sale of the land of his intestate to pay this judgment and another debt mentioned, and afterward effected the arrangement heretofore stated for its payment, and although we could not sanction and enforce that arrangement, under the circumstances shown, we cannot permit the bar of the statute of limitations to be made effective against the judgment thus dealt with by the then duly authorized representative of the very estate whose present representative is now pleading the statute. The whole scheme was contrived and managed by the legal representative of that estate in whose behalf advantage is now sought to be taken of the lapse of time. To permit this to succeed would be in the highest degree inequitable.

It does not expressly appear in the record before us that this claim was registered as a claim against II. J. Wilson’s estate, but it is highly probable it was, and, if so, it would be saved from the bar of the statute by § 2062 of the code.

Decree reversed, plea held insufficient, and cause remanded.

W. P. & J. B. Harris and E. G. Peyton filed a suggestion of error, and argued in support of it:

There is no case in our reports, we venture to say on our examination, which maintains the proposition that a proceeding to charge debts on the lands of the decedent, in the course of administration, arrests or suspends the statute of limitations, as to creditors of the estate. The code of 1880 provides a remedy for .this condition of things, but that is prospective. Section 2062.

The cases of Sivley v. Summers, 57 Miss. 712, and Weaver v. *246Norwood, 59 Ib. 665, do not establish it. These were cases of insolvent estates, so declared.

The case is one of a creditor who has not been paid because of his own attempt to defraud the estate of the deceased, or an attempt by those representing him. The proceeding is to clear away the obstructions created by the creditor’s own intrigue.

Our code has provided for every case of obstructions by the debtor, but there is no such case here. There must be a statutory provision to stop the statute of limitations once begun. Even an injunction absolutely restraining a judgment did not stop it in the absence of a statute to that effect. Robertson v. Alford, 13 S. & M. 509; Ingraham v. Regan, 23 Miss. 213; Dozier v. Ellis, 28 Miss. 730 ; Smith v. Westmoreland, 12 S. & M. 663; Kilpatrick v. Byrne, 25 Miss. 571 ; Butler v. Craig, 57 Ib. 628 ; Young v. Cook, 30 Ib. 320; Crane v. French, 38 Ib. 503.

William H. Matthews was a joint owner of the judgment with complainants, and against him the statute ran from the death of Isabella Matthews. Under the well-known rule, where he was barred, all were barred, regardless of the disability of the joint owners of the judgment.

Response to the suggestion of error.

Per Curiam.

Counsel are compelled to rely on the recognized doctrine applicable to joint claims, that where one is barred all are, and to claim that W. H. Matthews is barred and therefore the minors are, and yet they forget that this W. H. Matthews, through whom they would bar the infants, is not barred because he became administrator of the debtor estate when the claim was a valid one, in full force, and as he could not sue himself, the statute did not run against him even. He did all he could by applying for an order to sell land to pay this debt and another, and sold it. By the .sale the debt was intended to be and was treated as paid. This court would not approve and enforce that sale, on the showing made, and remanded the cause for a new sale to be made, that the debt may be paid and any excess go to the debtor estate..

The land was certainly charged with liability for the debt. How *247did it become discharged ? Was it by the effort to make the charge effective ? If an effort to enforce an encumbrance prove abortive, does that destroy the encumbrance? It, was never so heard. This is aplain case. It has been maturely considered, and we do not have a doubt of the correctness of our decision of it. Any other result would be monstrous, as it appears to us. We have not engrafted an exception on the statute of limitations. It has nothing to do with the case. We have opened a sale made years ago under circumstances we could not approve, that it may now be made for whom it may concern, as it should have been before.

Of course, according to principle and all precedent, the proceeds of the sale must take the course they would have followed had the sale before,been made as it should have been.

Denied.