First National Bank of Columbus v. Shelby Drummond

686 F.2d 1117, 1982 U.S. App. LEXIS 25292

• Court: Court of Appeals for the First Circuit
• Decided: September 27, 1982
• Docket: 80-3402
• Status: Published

Opinions

PER CURIAM:

This case involves the first certification of a question of law by this court to the Supreme Court of Mississippi pursuant to its Rule 46. 642 F.2d 181 (5th Cir.). Our disposition today is in accordance with the response to the questions certified.

First National Bank of Columbus appeals a summary judgment entered under Rule 56, Federal Rules of Civil Procedure, dismissing its claims against Shelby Drummond. The district court concluded that the one year statute of limitations prescribed in Section 15-1-23 Mississippi Code Annotated (1972) barred the action by the bank. On appeal, the bank contends that its action was filed timely, that the controlling statutory provision is Section 15-1-49 Mississippi Code Annotated (1972).

As reflected in the opinion by the Supreme Court of Mississippi attached as an appendix hereto, the six-year statute of limitations provided in Section 15-1 — 49 applies and the complaint by the bank was initiated timely.

The judgment of the district court granting summary judgment is REVERSED and the cause is REMANDED for further proceedings.

APPENDIX

IN THE SUPREME COURT OP MISSISSIPPI NO. 53,118

FIRST NATIONAL BANK OF COLUMBUS V. SHELBY DRUMMOND

En Banc.

SUGG, Presiding Justice, for the Court:

This case was certified by the United States Court of Appeals for the Fifth Circuit as authorized by Mississippi Supreme Court Rule 46. The certificate from the Court of Appeals, the style of the case, the questions certified, and exhibits follow as Part I. Our response to the questions follow as Part II.

PART I

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF MISSISSIPPI

TO THE SUPREME COURT OF MISSISSIPPI AND THE HONORABLE JUSTICES THEREOF:

It appears to the United States Court of Appeals for the Fifth Circuit that this case involves a question of the law of the State of Mississippi which is determinative of an essential threshold issue for which we find no clear, controlling precedent in the decisions of the Supreme Court of Mississippi. We accordingly certify the questions of law infra, to the Supreme Court of Mississippi, requesting an answer based on the facts as recited.

1. Style of the Case.

The case in which this certificate is issued is entitled First National Bank of Columbus, Plaintiff-Appellant, v. Shelby Drummond, Defendant-Appellee, number 80-3402 on the docket of the United States Court of Appeals for the Fifth Circuit and is an appeal from the United States District Court for the Southern District of Mississippi.

2. Statement of the Case:

On or about November 4, 1975, Shelby Drummond executed an instrument in favor of the First National Bank of Columbus, Georgia (the Bank), wherein he agreed to guaranteed payment of any loan, within a stated limit, which the Bank extended to J. C. H. Restaurants, Inc. D/B/A Brer Rabbit’s. A copy of the instrument is attached as Exhibit “A.”

On or about January 19, 1977, the Bank loaned J. C. H. Restaurants, Inc., the sum of $151,760 pursuant to an installment promissory note, a copy of which is attached as Exhibit “B.”

Some payments were made after which J. C. H. Restaurants, Inc., defaulted and the collateral securing the loan was liquidated. A foreclosure sale was held on September 30, 1977. After applying the proceeds of the sale, there remained a net principal balance deficit of approximately $40,000.

The Bank was unsuccessful in its amicable demands for payment directed to J. C. H. Restaurants, Inc., and Shelby Drummond and it filed suit in federal district court on December 17, 1979. Jurisdiction was based on diversity of citizenship of the parties, the plaintiff bank being a national banking corporation with its office and place of business in Columbus, Georgia, and defendant being a citizen of the State of Mississippi. Attaching copies of Exhibits “A” and “B” the Bank sought judgment for $39,587.86 plus interest from September 30, 1977, attorney’s fees and costs.

Shelby Drummond filed a Motion for Summary Judgment contending that the one year statute of limitations contained in Mississippi Code Anno., Section 15-1-23 (1972) controlled in this cause and that the action was barred because it was filed more than one year after the foreclosure proceeding. The district court agreed that Section 15-1-23 applied and held that the instant complaint was barred. The Bank’s petition was dismissed with prejudice and it now appeals contending that the proper provision of Mississippi law to be applied in this instance is Section 15-1-49 (1972) which establishes a six year period of limitations for the filing of this suit.

Section 15-1-23 provides:

In all cases, no suit or action shall hereafter be commenced or brought upon any installment note, or series of notes of three or more, whether due or not, where said note or notes are secured by mortgage, deed of trust, or otherwise, upon any property, real or personal, unless the same is commenced or brought within one year from the date of the foreclosure or sale of the property pledged as security for said note or notes.

Section 15-1-A9 provides:

All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.

3. Question to be Certified.

Which period of limitations applies to the instant fact situation, the one year period established by Section 15-1-23 (1972) or the six year period established by Section 15-1-49 (1972), of the Mississippi Code Annotated? Is some other period of limitations applicable? Was the complaint by the Bank timely filed?

The entire record in this ease, together with copies of the briefs of the parties, are transmitted herewith.

EXHIBIT A GUARANTEE

GEORGIA,

Muscogee COUNTY

In consideration of the sum of Five Dollars ($5.00) and other valuable considerations, as well as for the purpose of seeking to induce THE FIRST NATIONAL BANK OF COLUMBUS, GEORGIA, to extend credit to J. C. H. Restaurants, Inc. D/B/A Brer Rabbit’s (hereinafter termed the “principal”) or to renew or extend in whole or in part, loans or discounts already contracted by said principal, the undersigned (hereinafter termed the “guarantor”) does hereby guarantee to said Bank and to its endorsers, transferees, successors or assigns, of either this guaranty or any of the obligations secured thereby, the prompt payment according to their terms of all obligations of the principal to the Bank of any kind or character, and does agree that if they, or any of them, are not so paid by the principal, the guarantor will immediately do so.

The obligations covered by this guaranty shall include all obligations of the principal to the Bank now existing or hereafter coming into existence and of renewals or extensions in whole or in part, of any of the obligations before described, together with all damages, losses, costs, interest, charges, expenses and liabilities of every kind, nature and description suffered or incurred by the Bank, arising in any manner out of or in any way connected with, or growing out of said indebtedness or liabilities of the principal to the Bank.

The liability of the guarantor hereunder is limited to the principal sum of Two Hundred Forty Thousand and 00/100 ($240,-000.00) Dollars.

This is a continuing guaranty and shall remain in force until a written notice revoking it has been received by the Bank; but such revocation shall not release the guarantor from its guaranty of all obligations of the principal (as herein before defined) then in existence, or from any renewals or extensions thereof, in whole or in part.

The undersigned hereby consent and agree that the Bank may at any time, either with or without consideration, surrender any property or other security of any kind or nature whatsoever held by it or by any person, firm or corporation on its behalf or for its account securing any indebtedness or liability covered by this guaranty or substitute any collateral so held by it for other collateral or like kind or of any kind without notice to or further consent from the undersigned and such surrender or substitu- ' tion shall not in any way affect the liability of the undersigned hereunder.

Where the obligation hereby guaranteed is an obligation of a corporation, this guaranty is to cover all obligations to said Bank purporting to be made in behalf of such corporation by any officer or agent of said corporation without regard to the actual authority of such officer or agent. The term corporation shall include associations of all kinds and all purported corporations whether correctly and legally chartered and organized or not.

At the option of the Bank this may be treated as a guaranty or as a suretyship, with the right to proceed against the guarantor without first proceeding against the principal.

The guarantor hereby waives notice of acceptance of this guaranty or of the creation or extension or renewal of any obligation of the principal to which it relates, or of any default by the principal. Guarantor agrees that no act or omission on the part of the Bank shall in any way affect or impair this guaranty. The guarantor hereby waives the right to require the holder of the obligation guaranteed to take action against the principal as provided for in Section 103-205 of the 1933 Georgia Code.

Where the guarantor is a natural person this agreement binds his heirs, administrators and executors, and where a corporation, its successors and assigns. Where signed by more than one guarantor, the singular term “guarantor” shall include the plural, and their obligation shall be joint and several.

This guaranty is made subject to all the terms, conditions, agreements or stipulations contained in the notes evidencing the obligations hereby guaranteed, and said guarantor further agrees that the terms, conditions and provisions of any notes which may be executed by the principal to evidence obligations in the future incurred, shall simultaneously with the execution of such notes, become a part of this guaranty, said guarantor hereby ratifying and confirming the agreements contained in said notes, both as to him or itself and any and all collateral in the possession of said Bank or which may hereafter, during the life of this guaranty, come into its possession securing either this obligation or any other obligation.

The undersigned and each of them waive and renounce each for himself and family any and all homestead or exemption rights either of us may have under or by virtue of the constitution or laws of Georgia, any other State or the United States, as against the liability and obligation hereby created; and do hereby jointly and severally transfer, convey and assign to the Bank or holder hereof a sufficient amount of any homestead or exemption as may be set apart in bankruptcy to pay this obligation in full, with all costs of collection; and each of the undersigned hereby directs the trustee in bankruptcy having possession of such homestead or exemption to deliver to the Bank a sufficient amount of property or money so set apart as exempt to pay the obligation hereby created.

WITNESS the signature and seal of guarantor this the 4th day of November, 1975.

/s/ Wm. C. Sams, IV, MD (L.S.)

Signed before me 11-4-75. (name illegible)_(L.S.)

(name illegible) , Notary Public County Shelby, State of Tennessee /s/ Shelby Drummond_(L.S.) (name illegible)_(L.S.)

My commission Expires (name illegible) (L.S.)

April 8,1978 (name illegible) Notary My Commission Expires February 24,1979 Nov. 4,1975

EXHIBIT B

$151,760.00 INSTALLMENT NOTE Columbus Georgia 1-19-77

FOR VALUE RECEIVED, I, or we, or either of us, promise to pay THE FIRST NATIONAL BANK OF COLUMBUS, GEORGIA, or Order, at its office in Columbus, Georgia, together with the current rate of exchange in the City of Columbus, Georgia and in lawful money of the United States, the principal sum of One Hundred Fifty One Thousand Seven Hundred Sixty and No/100 Dollars, with interest thereon from date hereof at the rate of 1 per cent per annum on the monthly unpaid balance until maturity, said principal sum being due and payable in 11 successive monthly installments of $2,000.00 each and in one (the last) installment of $129,160.00, the first principal installment being due and payable on the 3 day of February, 1977, and one of said principal installments, in the order set forth herein, being due and payable on the 3rd day of each succeeding calendar month thereafter, until said principal sum shall have been fully paid. Said interest thereon shall become due and payable in successive monthly installments on the same due dates as said principal installments set forth herein. (See attached list of stock)

Extra payments may be made at any time and interest will be charged only on the monthly unpaid balance. And, privilege is given to pay off in full this note/debt at any time before maturity, WITHOUT PENALTY.

The holder of this note shall have the right to declare the same to be due, payable and collectible in advance of the dates named as its maturity dates upon the maker’s or makers’ (illegible) failure to keep the property described in the deed securing this note (should there be such a deed in existence) secured as provided therein or to produce the receipts therefor upon demand of the holder of this note and the said security deed, upon the maker’s or makers’ failure to pay any taxes or assessments levied upon the property described in the deed securing this note (should there be such a deed in existence) or to produce the receipts therefor upon the demand of the holder of this note and the said security deed, and upon the maker’s or makers’ failure to comply with any condition or stipulation contained in the deed securing said indebtedness (should there be such a deed in existence). Any failure to exercise said option (a) immediately shall not constitute a waiver of the right to exercise the same at any other subsequent time, without notice.

Said Bank is hereby expressly authorized to retain any general or special deposits, collateral, real or personal security, or the proceeds thereof, belonging to either of us now or hereafter in the possession of said Bank during the time this note remains unpaid and, before or after maturity hereof, may apply the same to this or any other debt or liabilities, of either of us to said Bank, due or to become due.

I, or we, and each of us, whether principal, surety, guarantor, endorser, or other party hereto, hereby agree to be jointly and severally bound and I, or we, severally hereby waive and renounce, for myself/ourselves and family/families all homestead or exemption rights provided by the Constitution and laws of Georgia or any other State of the Union, as against the payment of this note/debt or the interest thereon and of any renewal thereof and extension thereof, and constitute the holder of this note, as my/our attorney in fact in case of bankruptcy to claim all homestead and exemption allowed by law, and do hereby severally transfer and assign to the holder of this note all homestead exemption rights to which we, or either of us, may be entitled, and I, or we, hereby direct any trustee in bankruptcy to transfer to said attorney in fact all homestead or exemption allowed, and hereby authorize said attorney in fact to sell said homestead or exemption allowed, at public or private sale, with or without notice, and apply the proceeds of said sale, first towards the payment of this note, and any balance, to the party for whose benefit said homestead or exemption are set apart. I, or we, or either of us, further waive demand, protest, and notice of demand, protest and non-payment of this note and each and every installment due thereunder.

Time is of the essence of this note and each and every installment therein, and in case this note is collected by law or through an attorney at law, I, we, or either of us, agree to pay all costs of collection, including fifteen (15) per cent of the principal and interest, as attorney’s fees.

Should said note or any of said installments, including principal and interest, not be paid when due, they shall bear interest at the rate of eight per cent, per annum from maturity, said interest being due and payable monthly.

Given under the hand and seal of each party the day and year first above written.

No. 62996 1974 J, C, H. RESTAURANTS, INC. (L.S.) Due 3rd

(Name illegible)_V.P, (L.S.) Peachtree Mall, 3111 Manchester Express 31902

PART II

The question certified is controlled by our decision in W. T. Raleigh Co. v. Fortenberry, 138 Miss. 410, 103 So. 227 (1925). In Raleigh the principal debtor had obligated himself to Raleigh on an open account. The guarantors had obligated themselves to Raleigh on a separate contract of guaranty¹ which follows:

For and in consideration of the W. T. Raleigh Company extending credit to the abovenamed second party, we, the undersigned, do hereby jointly and severally guarantee unto said the W. T. Raleigh Company unconditionally the full and complete payment to said company of any and all indebtedness incurred under the terms of the above and foregoing instrument by the second party named as such therein and to all of the terms, provisions, and agreements contained in said instruments we fully assent, waiving acceptance of this contract of guaranty and all notices of any nature whatsoever, and *’ agree that the written acknowledgment by second party of the amount due on his account, or that any judgment rendered against him for moneys due the company shall in every and all respects bind and be conclusive against the undersigned. And we further agree that in any suit brought on this contract of guaranty by the company no other or further proof shall be required of it, than to establish the amount or sum of money due and owing to it from the said second party and when so proven shall be conclusive and binding upon us, and that any extension of time shall not release us from liability under this contract of guaranty. (138 Miss, at 416, 103 So. at 229)

The trial court held that the action was barred by the three year statute of limitations covering suits on open accounts under section 3099 Code of 1906, Section 2463 Hemingway’s Code [Now section 15-1-29 Mississippi Code Annotated (1972)]. On appeal by Raleigh, this Court reversed and remanded holding that the suit was based on the written guaranty which in explicit and unmistakable terms obligated appellees to pay the indebtedness sued for.

The principle expressed in Raleigh, supra, was followed in Alexander v. Carsley, 199 Miss. 881, 25 So.2d 709 (1946) in a suit by Alexander against Carsley and the surety on his official bond. The suit was for personal injuries inflicted by Carsley in the exercise of his authority and duties as a member of the State Highway Patrol. The trial court held that the suit was barred by the one year statute of limitations covering actions for assault and. battery. Section 732, Code of 1942 [now section 15-1-35 Mississippi Code Annotated (1972)]. This Court reversed and remanded holding the six year statute of limitations (section 15-1-49) applied because the suit was upon the bond which was in writing. Although Alexander involved a suit on a surety bond rather than a guaranty contract, by analogy the holding in Alexander with reference to limitations of actions applies in this case.

Although Drummond does not address Raleigh, supra, in his brief, he argues that section 15-1-3² Mississippi Code Annotated (1972) applies and extinguishes the right of First National. The same argument was made in Raleigh, supra, when the appellees argued in their brief that the right of Raleigh was extinguished because the remedy, that is the suit on open account, was barred, and, therefore, the contract became void. Section 2479 Hemingway’s Code (now section 15-1-3). The Court rejected the argument by holding that suit on the guaranty was not barred by the three year statute of limitations which applies to open accounts.

In the ease before the Court, section 15-1-3 applies only to the makers of the note and extinguished the right as well as the remedy of First National to proceed against the makers of the note who were the principal debtors. The suit in this case was not on the note of the principal, but as in Raleigh, was on the separate guaranty contract.

We also considered whether the guaranty contract was an attempt by First National to change the limitations prescribed by section 15-1-5 Mississippi Code Annotated (1972).³ The statute does not apply because the guaranty contract did not attempt to change the time of limitations of actions as prohibited by 15-1-5, but is a separate contract subject to the six year statute of limitations. Section 15-1 — 49.

Appellee relies on the case of Hawkins v. Southern Pipe and Supply, Co., Inc., 259 So.2d 696 (Miss.1972) and Musser v. First National Bank of Corinth, 165 Miss. 873, 147 So. 783 (1933). These cases do not apply because they did not involve the obligation of a guarantor under a contract of guaranty separate and distinct from the obligation of the principal debtor.

In response to the questions certified, we hold:

(1) The six year statute of limitations, Section 15-1-49 applies to this case;

(2) No other statute of limitations applies; and

(3) The complaint was timely filed by the Bank.

Having responded to the questions certified, we direct that the entire record, including copies of the briefs submitted to this Court, be transmitted to The United States Court of Appeals for the Fifth Circuit.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING and PRATHER, JJ., concur; DAN M. LEE and BOWLING, JJ., dissent. HAWKINS, J., took no part.

1 . The contracts of guaranty in Raleigh, supra, and the case before the Court fulfill the requirements of a guaranty contract set forth in Brent v. National Bank of Commerce of Columbus, 258 So.2d 430, 434 (Miss.1972):

[A] guaranty contract possesses the following characteristics: (1) A guarantor is secondarily liable to the creditor on his contract and his liability is fixed only by the happening of the prescribed conditions at a time after the contract itself is made; (2) the contract of a guarantor is separate and distinct from that of his principal, and his liability arises solely from his own contract, although its accrual depends on the breach or performance of a prior or collateral contract by the principal therein; (3) a guarantor enters into a cumulative collateral engagement, by which he agrees that the principal is able to and will perform a contract which he has made or is about to make, and that if he defaults the guarantor will, on being notified, pay the resulting damages — i.e., a guarantor is an insurer of the ability or solvency of the principal, although this characteristic is not present in an absolute guaranty or a guaranty of payment, but only in a conditional guaranty or a guaranty of collection; and (4) except where the guaranty is absolute, generally the guarantor is entitled to notice of the default of the principal.

2 . The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy. However, the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon.

3 . The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contracts stipulation whatsoever shall be absolutely null and void, the object of this section being to make the period of limitations for the various causes of action the same for all litigants.