67 Miss. 292 | Miss. | 1889
delivered the opinion of the court.
We fail to discover any good reason for limiting the exercise of the power conferred by § 1935 of the code to the term of the court at which the sale of property is confirmed, and are of opinion that a decree for the balance may be moved for, as provided, at any time before the statute of limitations bars the execution of a decree. Person v. Barlow, 35 Miss. 174.
Every such suit as that section relates to is for a decree in rem, and in personam, for any balance, and where there is a balance shown, may be regarded as a pending suit as to that until a decree for it. Therefore, no statute runs on the claim, except that applicable to a decree, for there is a judicial ascertainment of the sum .due, and a decree for it, which may be the basis of a personal decree at any time within the limit already stated. Person v. Barlow, 35 Miss. 174.
What we have said disposes of the proposition that there can be no personal judgment for a deficiency in case the debt is barred by the statute of limitations, as well as of the objection that a decree
The object of this section is to enable the chancery court to grant complete redress to the suitor, by subjecting property to his lien, and decreeing for any balance due him after that, so as to give him execution as at law, instead of leaving him to sue in a court of law for such balance; and as any creditor of a decedent may sue at law, and obtain judgment and have execution, we are unable to appreciate the force of an objection to a decree by the chancery court in such case.
As stated above, every suit to enforce a lien in the chancery court is for a specific and general remedy, as provided by § 1935, and stops the running of the statute of limitations as to that suit from its commencement. If the motion is made for a decree for a balance at the term of confirmation of the sale, the parties being held as present would not be entitled to any notice; but if a motion be not made until a subsequent term, notice would be required, and such motion may be made at any time before the completion of the bar of the statute of limitations operating on a debt of record, which is seven years.
The cases cited by counsel for'appellant were decided with refer-' ence to a state of the law in the respective states widely different from ours, and do not in any way conflict with our view of our statute. On the same state of law we would decide as did the courts in the cases cited, and have no doubt they would each decide upon our law as we now do.
Affirmed.
