Sugg v. Thrasher, 30 Miss. 135

Sugg v. Thrasher

30 Miss. 135 | Miss. | 1855

Fishek, J.,

delivered tbe opinion of tbe court.

This is an appeal from a decree of tbe Superior Court of Chancery, overruling tbe appellants’ demurrer to tbe appellees’ cross-bill.

Tbe complainants, as administrators of tbe estate of Duncan H. McIntyre, deceased, filed their bill in tbe Superior Court of Chancery, for tbe purpose of enjoining tbe appellees from further proceedings to enforce a judgment recovered against tbe complainants as such administrators, in tbe Circuit Court of Claiborne county. Tbe bill was filed in November, 1845. Tbe defendants appeared to the December term following, of tbe court, filed their answer, and moved to dissolve the' injunction; and tbe chancellor *142taking the motion under advisement, no decision was made until the June term, 1848, of said court, when the motion was sustained and the injunction dissolved. The complainants, at the same term of the court, prayed an appeal to this court. The cause not being regularly reached on the docket until March, 1853, the injunction was, by virtue of the appeal, continued in force until that time, when the decree of the chancellor being affirmed, the cause was remanded to the court below.

- The bar of the Statute of Limitations of seven years, (that being the period which had elapsed since the last execution on the judgment,) having become complete, this cross-bill was filed, praying that the plaintiffs in the judgment shall have a decree for the balance due upon the judgment; or, if this relief be thought improper, that then the defendants be enjoined from setting up the -Statute of Limitations, as a defence to further proceedings to enforce the judgment by execution, or otherwise, at law.

The general rule, as argued by counsel, that the Statute of Limitations, in all cases where it is applicable, is regarded as a meritorious defence, may, to the fullest extent, be admitted. The same may be said, in respect to the argument that it is a defence which may avail a party as well in equity as at law; and it may further be admitted, that a court of equity will not lend its aid to deprive a party of the advantage of this defence, if fairly obtained. It may also be conceded, that if the advantage of this defence has arisen from the laches of the creditor, and not from the conduct of the debtors, that it is their privilege to make it, and it is not within the province of the court to question its propriety, on the score of morality.

But while these principles must be admitted as general rules, there are others of equal, if not of greater potency, which must not be overlooked under the peculiar circumstances of this case.

It is a familiar principle of equity, that a man shall not be allowed to avail himself of an unconscientious advantage acquired over his adversary. The inquiry in this case naturally forces itself upon the mind, why was it that the plaintiff at law delayed this long period to enforce his judgment ?

*143Tbe response is, that tbe debtors, by tbe means wbicb they employed, forced bim to delay. It was not an act of choice on bis part, but one of legal compulsion. He but obeyed tbe process of tbe court, issued and kept in operation by tbe debtors, in tbe fruitless litigation wbicb they carried on for this long period of time. That wbicb is forced upon a party, cannot be said to be bis voluntary act. He ceased to prosecute bis remedy on bis judgment, because such was tbe command of the process, which issued in pursuance of tbe prayer of the debtors.

But it is said that be might have proceeded to levy under bis execution, though be was enjoined from selling. Such is not tbe language or tbe object of tbe injunction. If tbe execution could go into tbe bands of tbe sheriff at all, it would be for complete execution, and not for part. It is not to be supposed that tbe plaintiff was required, or even allowed to take out bis execution, place it in tbe bands of tbe sheriff, and stand by and inform bim bow far to proceed, or bow far be might proceed without incurring tbe penalties wbicb tbe court would be bound to inflict for a contempt of tbe injunction.

But it is not necessary to dwell on this point. It is sufficient to know that tbe plaintiff only obeyed tbe process in refraining from enforcing bis judgment; and it certainly comes with a bad grace from parties who availed themselves of all tbe means known to tbe law, to continue this process in full operation, now to complain of tbe plaintiff’s obedience to that wbicb he dared not, under wliat ought to have been heavy penalties, to disobey. Tbe question then simply resolves itself into this. If tbe plaintiff voluntarily omitted to prosecute bis remedy until tbe bar of tbe statute attached, it is bis misfortune, and tbe debtor is at liberty to set up tbe defence, as in any other case. If, on tbe contrary, tbe plaintiff’s failure in this respect must be attributed to tbe obedience wbicb be was bound to pay to tbe injunction, tbe failure must be regarded as tbe legitimate result of tbe act of tbe debtors, and they cannot in conscience interpose tbe statute as a defence. Not a doubt can exist that it was alone tbe injunction, which caused tbe delay in issuing execution on tbe judgment; and such being *144the fact, tbe case falls completely within the rule of equity already stated.

But it is said that the court will not by construction engraft upon the statute any other exception, than such as has been clearly expressed by the legislature. This rule is admitted to the fullest extent. The question is not one of either legislative or judicial exception, arising by construction of the statute, but whether, under the facts of the case, it is a defence of which the defendants can conscientiously avail themselves. It is admitted to be a de-fence at law, but such a defence as a court of equity acting upon the consciences of the parties will not permit them to make. Not that the defence of the Statute of Limitations is of itself uncon-scientious or immoral, but that it is rendered so by the facts and peculiar circumstances of the case.

The right asserted was as clear as it was when the plaintiffs first encountered the injunction, and the object is, to leave the parties, with respect to their rights, where they stood when the debtors commenced their litigation in the Superior Court of Chancery. No principle upon which the Statute of Limitations rests is violated by this course. Admit that it is what counsel say it is, a statute of repose, every principle of justice and sound policy forbids that parties should by improper means, or by abusing the process of the law intended for salutary purposes, bring themselves within its operation, and enjoy the advantage thus unrighteously acquired. To sustain such a principle, would be but holding out inducement to litigants to commence and protract, by artifice or other unauthorized means, vexatious litigation, with a view of finding immunity ultimately under the statute. When parties have fairly acquired this defence by regular course of things, they are entitled to the benefit of it, if they choose to make it, but they ought never to be encouraged to start prematurely in search of it, by protracting either unfounded or useless litigation.

Decree of the court below affirmed.

HaNDY, J., concurred. Smith, C. J., dissented.

*145A petition for a re-argu¿ient was filed, but the re-argument refused.

Note. — The case of Byrne v. Kilpatrick, has been cited and relied on as authority in this case. Though that opinion is published as the opinion of the whole court, it is nevertheless only the opinion of the learned judge who delivered it, and of the chiefjustice. Fisher, J., at the time dissented, and gave his reasons from the bench for such dissent.