Fisher v. Burk

86 So. 600, 123 Miss. 781

• Court: Mississippi Supreme Court
• Decided: October 15, 1920
• Docket: No. 21241
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Appellant filed a bill in the chancery court of Yazoo county, alleging that on and prior to the 26th day of March, 1908, he was the owner in fee simple of six hundred acres of land in Yazoo county, Miss.; that on the said date he entered into a contract with the appellees for the exchange of said lands for certain lands situated in the state of Illinois; that in said exchange the lands in Yazoo county were valued at seven thousand five hundred dollars, and the land in Illinois was valued at sixteen thousand dollars, less an incumbrance of five thousand five hundred dollars, which incumbrance the appellant assumed, and in addition to assuming the same, was to pay three thousand dollars in cash or by note for six months at six per cent, interest.

It is further alleged that both .parties were citizens of the state of Illinois, and that said contract was made in the state of Illinois, and was to be performed there, and that neither of said parties since said time had ever been domiciled in the state of Mississippi. Burk was to level up the foundation and floors of the' house on the land situated in Illinois, and to make certain repairs thereon. In addition to the considerations named Burk agreed to make a deal for the appellant within six months to sell the Illinois land for the appellant for sixteen thousand dollars without commission, or, in default of making such deal in said time, to give the appellant the option of trading back on the same basis as stipulated in the contract. In pursuance of said agreement abstracts of title were furnished and deeds exchanged. It was discovered that the incumbrance on the Illinois land was five thousand four hundred dollars instead of five thousand five hundred, and the appellant paid three thousand one hundred dollars, instead of three thousand dollars by executed note in accordance with the agreement, which note was after-wards paid.

Burk did not procure a purchaser within the six months, nor within any time thereafter, and suit was brought on the chancery side of the circuit court in Illinois for specific performance of the contract to reconvey. The complainant alleged that he tendered a conveyance to the defendant, and also tendered a deed to be signed by the defendant and his wife, reconveying the Mississippi lands to the appellant, demanded the execution of the said deed and the repayment of the cash money so paid, Avhich deed the defendant refused to execute. The suit in Illinois Avas referred to a master for an accounting and report as to laAV and fact, and the master reported that the equities AArere with the defendant in the said suit, and recommended that the bill be dismissed. Exceptions Avere filed to the master’s report, and the judge of the said court sustained the exceptions, overruling the master’s report, and entered a decree for the complainant, from which an appeal was prosecuted to the supreme court of Illinois, where the cause was reversed and mandate issued, directing the court beloAv to dismiss the bill, which was done by a decree, reciting that the equities were with the defendant. Thereupon the complainant in said suit prepared an amended bill, and asked leave to have same filed, which the court refused to permit. From this decree an appeal was prosecuted to the supreme court of Illinois, and the judgment of the court, refusing to permit the filing of the amended bill, Avas affirmed. This litigation in Illinois began in the year (1910, and continued until the year 1918.

The bill further alleges that Burk misrepresented the incumbrance upon the land in Illinois which he traded to appellant, in that he represented to the appellant that the mortgage was held by one party, and that such party had agreed to an extension of at least twelve months for the payment of said debt, whereas in truth it is alleged the incumbrance Avas owing to several different parties in different amounts; and that said parties refused to grant an extension, but demanded the money when due, and that he was compelled to and did execute a mortgage, in order to procure the money Avith which to pay the said indebtedness, to another party named in the bill, which said mortgage matured on the 30th day -of September, 1916, and plaintiff, being unable to renew said mortgage Avitliout payment of excessive commissions, sold and conveyed the premises situated in Illinois to one iC'allahan by warranty deed on the 15th day of December, 1916, for the consideration of the assumption of the said incumbrance of five thousand four hundred dollars, and the additional sum of tAAfo thousand two hundred dollars which is alleged to be a fair and reasonable price for the equity of the complainant.

It further alleges that on account of the failure of the defendant Burk to comply Avith the conditions of his contract complainant was compelled to pay out sums of money set forth in the pleading. It is further alleged that the contract between Burk and the appellant was procured through fraudulent representations as to the value of the Illinois property and as to the amount it was being rented for per acre.

This bill was filed in Mississippi at the December,, 1918, term of the chancery court at Yazoo county, for the damages alleged to have accrued to the complainant by reason of the refusal of the appellee to reconvey the land in accordance with the contract, and an attachment was prayed in chancery against the property situated in Mississippi conveyed by the appellant to Burk, which attachment was duly issued. The bill so filed was demurred to by the defendant on the ground that the bill showed on its face that the action was barred by the six-year statute of limitation of Mississippi, which demurrer was sustained, but on application permission Avas granted to file an amended bill. The amended bill set forth the allegations of the original bill, but, in addition thereto, contained averments that the complainant had paid certain taxes on the Mississippi land for 1915, 1916, and for cancellation of tax deed for 1916, and for taxes on the Illinois land from 1913 to 1916.

The amended bill was demurred to on the ground: (1) That the right of action was barred by the six-year statute of the state of Mississippi; (2) that it was barred by the limitation of the ten-year statute of Illinois where the cause of action accrued; (3) that the amended bill shows on its face that the matters complained of had been litigated to filial decree in the courts of Illinois, which is alleged to have constituted res ad judicata of the subject-matter of the litigation; (4) that the filing of the bill in Illinois constituted an election of remedies which bound the complainant. The chancellor overruled the demurrer because he was of the opinion that the complainant had a right to recover the taxes paid on the Mississippi lands. Thereupon demurrers were filed to the parts of the bill separately, and were sustained as to all matters except the payment of taxes, and from this decree, sustaining the said demurrer as other features of the bill, the chan*cellor granted an appeal to this court to settle the principles of the case.

The first question presented for decision is the question as to whether the plaintiff’s right of action was barred by the six-year statute of limitation of the state of Mississippi. Section 3097, Code 4900 (Hemingway’s Code, section 2461) reads as follows:

“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.”

Section 3108, Code of 1906 (Hemingway’s Code, section 2472) reads as follows:

“If, after any cause of action have accrued in this state, the person against whom it has accrued be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action, after his return.”

The cases of Bower v. Henshaw et al., 56 Miss. 619; Robinson v. Moore, 76 Miss. 89, 23 So. 631, and Hunt v. Belknap, 78 Miss. 76, 28 So. 751, are relied upon by the appellant to sustain his position that the six-year statute of Mississippi does not bar right of action, while the case of Wright v. Mordaunt, 77 Miss. 537, 27 So. 640, 78 Am. St. Rep. 536, is relied upon by the appellees to sustain their contention. It will be noted from the statement of the case that neither the appellant nor the appellees have ever lived or resided in the state of Mississippi.

Prior to the Code of 1880, the statute bearing on absence from the state read as follows:

“If, at the time when any cause of action mentioned in this chapter, shall accrue against any person, he shall be out of the state, the action may be commenced within the time herein limited therefor, after such person shall have come into the state; and if., after any cause of action shall have accrued, the person against whom it has accrued shall be absent from, and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.” Section 2157, Code of 187.1.

This Avas the statute' in force Avhen the case of Bower v. Henshaw, supra, was decided. It Avill be observed from a reading of this statute and a reading of the present statute above set out that there Avas a material change in the verbiage of the statute and noAV the statute reads, “If, after any cause of action have accrued in this state.” Did the present cause of action accrue in this state Avhen all the parties to the contract reside, and have always resided, in the state of Illinois, and the contract Avas to be performed there? We think not. We think the cause of action accrued in the state of Illinois, and that the mere bringing of the suit in this state, seeking to establish a lien on property AA’ithin this state, does not make the cause of action one accruing AA'ithin this state. The cause of action is one thing, and the remedy to enforce the action is another and different thing.

•In the case of Hunt v. Belknap, 78 Miss.'77, 28 So. 751, the action was sustained on the theory that the mortgage conferred a right of action in this state, and our decisions make a distinction betAveen a suit to foreclose a mortgage and one merely to enforce the payment of the debt and to charge the property situated in this state with a lien for that purpose.

The case of Trotter v. Erwin, 27 Miss. 772, draws a distinction between a mortgage and a vendor’s lien. In the headnotes to this case it is said:

“The statute of limitations which would bar a debt secured by mortgage ivill not bar the remedy upon the mortgage, because the mortgage has a legal import more extensive than the mere evidence of the debt.

“The mortgage in its form is separate and distinct from the debt, and is aii additional and more solemn acknowledgment of and security for the debt. Held, that none of these characteristics appertain to the vendor’s lien for unpaid purchase money.

“The vendor’s lien consists solely in debt, having no form apart from it, and has been held to be capable of being enforced against a vendee and subpurchaser with notice by analogy to a mortgáge, and upon the general equitable principle that the purchaser should not be entitled to the land until he has paid for it. . . .

“The vendor’s lien is not a mortgage, but it has merely the incidents of a mortgage, being enforceable in equity against the property subject to the vendors equitable claim; but it consists solely in debt, and must be subject to all the incidents of the debt, and cannot be enforced when the debt cannot be.”

In Hunt v. Belknap, supra, the court recognized the effect of the change of language from the Code of 1871 to the Code of 1880 which latter section is brought forward in our present Code of 1906.

In Wright v. Mordaunt, 77 Miss. 537, 27 So. 640, 78 Am. St. Rep. 536, it was held that the lex fori governs in cases like this one, where the parties resided out of the state and where the contract was made to be performed in another state, and that the six-year limitation of this state barred a suit on a promissory note made in the state of Illinois, where the statute of limitations was ten years, instead of six, although both the maker and the payee resided in another state at the time of the execution of the note, and thé maker did not become a resident of this state until nearly six years after the maturity of the note. In our view, this case is precisely in point. It was there held that the time which ran against the note in a foreign state would be counted when computing the period under our statute. The only difference in the two cases is in the present case the defendants have never come into the state of Mississippi for the purpose of residence.

In the case of Robinson v. Moore, 76 Miss 89, 23 So. 631, it was held that the provisions of our statute, Avhich provides, where a cause of action is barred in another state, it is barred here, has no application if the defendant has never resided in this state.

It is argued in the case before us that, this being true, the ten-year statute of Illinois applies in the present case, and that the ten-years had not expired, and therefore the right of action was not barred'in this state.

Our court has held, not- only in the case of Wright v. Mordaunt, supra, that the lex fori governs, but in the early decisions of our state, in the case of Hamilton v. Cooper, Walker, 542, 12 Am. Dec. 588, the doctrine ivas laid down that the statute of limitation of another state cannot be pleaded in bar here, but the courts will confine themselves to their own statutes.. The same doctrine ivas announced in Fears v. Sykes, 35 Miss. 633.

The statute (section 3114, Code of 1906; Hemingway’s Code, section 2478), which provides that, when a cause of action has accrued in some other state or in a foreign country and by the law of such state or country, or of some other state or country where the defendant has resided before he resided in this state, an action cannot be maintained by reason of a lapse of time, then no action shall be maintained here. It was held by this court in L. & N. R. v. Pool, 72 Miss. 487, 16 So. 753, that the statute applies only where the nonresident in whose favor the statute had accrued afterwards removed to this state. This ivas reaffirmed in Robinson v. Moore, supra.

There is no cross-appeal from the action of the chancellor in holding that the complainant was entitled to recover for the taxes paid by him on the Mississippi land after the conveyance to the appellees,, and we do not decide that proposition. We deem it also unnecessary, in AdeAV of Avhat Ave have said, to determine whether the suit in Illinois Avas res adjudicata as the right of action, if any exists, is barred by the Mississippi statutes of limitations.

Affirmed and remanded.