Savings, Building & Loan Ass'n v. Tartt

81 Miss. 276 | Miss. | 1902

Whitfield, C. J.,

delivered the opinion of the court.

The liability of the surety on the guardian’s bond is not a probatable claim. Hence noné of the statutes of limitation which would bar such a claim have any application. There is a statute which would bar this debt, and but one; and that is the statute which would bar Tartt if he did not sue, after age, within the time prescribed by statute. Yandell v. Pugh, 53 Miss., 301; Gillespie v. Hauenstein, 72 Miss., 838 (17 South., 602). There ought to be no other bar, and it is doubtless the fact that there ought not to be which accounts for the pregnant fact-that the legislature never has prescribed one for a debt like this. It would be in the highest degree unjust to infants to have any other bar. The liability of the surety is a debt, within the meaning of our statute, charging the debts of a decedent upon his lands. The heirs took the lands thus charged with this positive statutory lien, and cannot alien these lands, except subject to the charge. The guardian’s bond is required to be recorded. This one was recorded in Lauderdale county. The purchasers from the heirs were charged with the knowledge which the records imparted — the records of the guardianship proceedings and the bond. There is no room here for the play of the doctrine of innocent purchasers. In no just legal sense can these purchasers from the heirs (charged with constructive knowledge of all the records disclosed) of lands which the heirs themselves took charged with the debt here sued for, by positive statute law, be called innocent purchasers. They bought eaveat emjjtor. They got the lands, just as the heirs held them, subject to this charge — the payment of this debt. These purchasers, it must be noted, have not been in possession for ten years. That period has not elapsed since their purchase, before the filing of this bill. What is asserted here is not a mere equity. It is a legal charge fixed by statute. A most ingenious and very able argument has been made to show this to be a mere secret equity, a mere claim, not a debt, within the meaning of the statute; and the great hardship of this sort of case has been most earnestly pressed. All these contentions are unsound. The hardship would be quite as great against minors, on the other view. And the decisions of this state fully and clearly sustain the views set out.

We see no error in the method of computing the amount. The statutes are plain, and they, with the authorities, are all set out in briefs of appellee’s counsel, and need not here be cited again.

The tax sale was void, and on the cross-appeal the case must be reversed as to that.

Affirmed on direct appeal. Heversed as to tax sale on cross-appeal, a/>%d cause remamded, to te proceeded with in accordance with this opinion.