Clark v. Trustees of Jefferson College

2 Miss. Dec. 198

Opinion

Opinion.

Campbell, J.:

A pro confesso may be taken at the return term, although the summons be not personally executed. Code of 1871, § 1021. Section 632 of same Code does not apply to Chancery Courts.

The defense of the statute of limitations must be availed of in some mode by the defendant, before a decree, and cannot be invoked for the first time by appeal. Patterson v. Ingraham, 23 Miss. 87; Archer v. Jones, 26 Miss. 583; Wood v. Ford, 29 Miss. 57; Wilkinson v. Flowers, 37 Miss. 579.

In this respect, there is no difference between a married woman and any other adult defendant. As a party to a suit she is subject to the same rules which affect others. James v. Fisk, 9 S. & M. 144; Rawlings v. Sanford, Ms. Opinion.

The deed of trust, the subject of this suit, was executed before the Code of 1857, and where there was no limitation or restriction on the right of a married woman to encumber her land by the joint deed of herself and husband, properly acknowledged. Sessions v. Bacon, 23 Miss. 272; Russ v. Wingate, 30 Miss. 440; Stone v. Montgomery, 35 Miss. 83.

Therefore the bill presents a case which (if unaffected by the statute of limitations) entitled the complainant to a decree for the sale of the land embraced in the deed of trust. As stated above, the case is not to be reviewed with reference to the statute of limitations, which was not set up as a defense by demurrer, plea or .answer, and the decree rendered is correct, and it is

Affirmed.