Eagle Lumber & Supply Co. v. Peyton

*485 Smith, C. J., delivered the opinion of the court. The appellant exhibited its bill of complaint in the court below against Mrs. L. C. Peyton, J. W. Peyton, and O. W. Pearson, alleging that they were indebted to it on their promissory notes, executed in January, 1925, secured by a deed of trust on certain described land, which deed of trust had been mailed to the chancery clerk for record but was not received by him and was lost; that in March, 1925, the Peytons executed a deed of trust to 0. W. Pearson to secure an indebtedness due him, and thereafter delivered to Pearson a deed to the land in settlement of the debt due him by them; that Pearson, when he accepted the deed of trust and the deed, knew that the deed of trust had been executed by the Peytons to the appellant, and that the debt secured thereby was due and unpaid. The prayer of the bill was for a foreclosure of the deed of trust. The allegations of the bill were denied by an answer that when the case came on for trial, the appellees produced the deed of trust which the Peytons were alleged to have executed to the appellant, and it appeared therefrom that it had never been, in fact, executed, the gran *486 tors therein not having signed it. Counsel for the appellant thereupon admitted their inability to proceed with the case on the then allegations' of the bill, and tendered an amendment thereto by which the complainant sought to allege that the debt evidenced by the promissory notes sued on was for lumber and material sold to the Peytons and used by them in the construction of certain buildings, on the land described in the original bill; that this lumber and material was “sold to the said J. W. and Mrs. L. C. Peyton with the understanding that it would be paid for on the dates specified in the said notes.” The allegations of the original bill with reference to the execution by the Peytons to Pearson of the deed of trust on and deed to the land were renewed and the further allegation made that when Pearson accepted the deed of trust and deed he knew that the Peytons were indebted to the complainant for lumber and material sold by the appellant to, and used by them in the construction of buildings on the land. The court declined to permit tliis amendment to be made and dismissed the bill. The grounds on which counsel for the appellees seek to sustain the rulings of the court below are: (1) The amended bill presents a case of which the circuit court has exclusive jurisdiction. (2) The case set forth in the amended bill is inconsistent with that set forth in the original bill. (3) The notes sued on are barred by the statute of limitation. (4) The facts set forth in the amended bill were all within the knowledge of the appellant when the original bill was filed. These contentions will be taken up in their inverse order. It is manifest from the evidence relative thereto and the record seems to indicate that the court below so found, that the allegation of the execution of the deed of trust from the Peytons to the appellant in the original bill was made in good faith. If that allegation had been true, *487 tlie appellant would have had no occasion to rely upon the statutory lien set forth in its amended bill. Consequently, its failure to allege the same in the original bill should not now be held against it. The statute of limitation, which we understand to be here relied on, is section 3062, Code of 1906' (section 2422, Hemingway’s Code), which requires proceedings for the enforcement of the lien of mechanics and materialmen to be begun “within twelve months next after the time when the money due and claimed by the suit became due and payable.” As hereinbefore set forth, the amended bill expressly alleges that the lumber and material were sold to the Peytons ‘ ‘with the understanding that it should be paid for on the date specified in said notes.” The first of these notes matured on May 1, 1925', and the amended bill was offered in the court below on April 26, 1926, less than twelve months after the first of the notes became due and payable. The relief sought by both the original and amended bill is the sale of certain land and the application of the proceeds thereof to the payment of an indebtedness due from the Peytons to the appellant. It is true that the lien sought to be enforced in the original bill is different from the one sought to be enforced in the amended bill, but the object sought to be accomplished in each is the same, and therefore there is no inconsistency between them. The argument of counsel for the appellees in support of their contention that the relief sought by the amended bill is inconsistent with that sought by the original bill is that if the deed of trust set forth in the original bill had been executed as alleged therein, the statutory ma-terialman’s lien would have been thereby waived. Assuming, but merely for the sake of argument, that this is true, both liens could have been set forth and relied on in the original bill, and if, at the trial, the evidence failed to sustain the allegation of the execution of the deed ox trust, the statutory lien could then have been enforced. *488 It is true that the amended hill presents nothing requiring the intervention of a court of equity, and that the appellant’s relief iii a circuit court would have been plain, adequate, and complete; nevertheless the amendment should have been permitted, and then, if the appellee had so requested, the case should have been transferred to the circuit court. Constitution, section 162; Murphy v. Meridian, 103 Miss. 110, 60 So. 48. Reversed and remanded.