Strayhorn v. McCall

McCulloch, J., (after stating the facts.) It is urged here that the chancellor erred in decreeing a foreclosure, because the debt was barred by' limitation, but an examination of the pleadings fails to disclose a plea of the statute bar. The statute of limitations, when relied upon as a defense in suits in equity, as well as in actions at law, must be specially pleaded. Wilson v. Anthony, 19 Ark. 16. Chief Justice English in delivering the opinion of the court in the case just cited said: “The statute of limitation cannot be insisted on as a bar in equity without being pleaded or in some form relied on as a defense in the pleadings. (Citing Hickman v. Stout, 2 Leigh, 6; Hudson v. Hudson, 6 Munf. 356; Dey v. Dunham, 2 Johns. Ch. Rep. 191; Crutcher v. Trabue, 5 Dana, 82; Whitney v. Whitney, Id. 331; Van Hook v. Whitlock, 2 Edward. Ch. 307; Prince v. Heylin, 1 Atk. 494; Colvert v. Millstead, 5 Leigh, 88; Maury v. Lewis, 10 Yerger, 118; Jones v. Chiles, 4 J. J. Marsh. 610.) The reason of the rule is that the complainant should have notice of the defense, in order that he may have an opportunity of bringing his case within the exceptions of the statute by special replication, or, according to the modern practice, by an amendment of his bill, and not to be taken by surprise at the hearing.” This view is sustained by more recent decisions. 13 Enc. Pl. & Pr., p. 183; Thompson v. Parker, 68 Ala. 388; Lux v. Haggin, 69 Cal. 255; Brush v. Peterson, 54 Iowa, 243; Lawrence v. Rokes, 61 Me. 38; Wilkinson v. Flowers, 37 Miss., 579; Bruce v. Baxter, 7 Lea (Tenn.), 477; Gibson v. Green, 89 Va. 524. The language used by Judge Eakin in Riley v. Norman, 39 Ark., 158, appears to be against this view, but the learned judgq seems to have been discussing the equitable doctrine of laches, rather than the statute of limitation, as the former doctrine was applied in that case in denying the relief sought. None of the elements upon which courts of equity apply the doctrine of lachesi are found in the case at bar. The defendant purchased the land from the administrator of J. E. McCall with full knowledge of the asserted claim of the.plaintiff. If the defendants intended to rely as a defense upon the fact that the debt secured by the mortgage was barred by limitation, the rules of good pleading, as well as fairness to the plaintiff, demanded that such intention should have been plainly manifested by an appropriate plea. Instead of doing so in this case, the defendants based tkeir defense upon other grounds and said' nothing about the statute of limitations, or the facts upon which the court could apply the statute. Nothing appears in the answer from which the court could infer an intention to plead the statute bar except, possibly, the bare statement that “no credits were entered on the margin of the mortgage.” This is not sufficient as a plea of the statute bar. The facts constituting the bar should have been set forth. It is contended that t'he mortgage was not properly assigned to the plaintiff because the authority of the agent who made the assignment is not shown. The assignment was made for the benefit of the principal; she has not questioned it, and the authority will be presumed until the contrary is made to appear. The defendant objected to the testimony of the plaintiff on the ground that it was a suit against the administrator, and that his testimony related, in part, to transactions with the deceased. For several reasons the testimony was not incompetent. The suit was against the purchaser of the land, and as to him the testimony was competent. Nolen v. Harden, 43 Ark. 307; Lawrence v. LaCade, 46 Ark. 378. The testimony, so far as it tended to sustain the relief granted by the court, did not relate to a transaction with the deceased, but to an independent transaction, i. e., the assignment to him of the note and mortgage by the holder. It is only as to “transactions with or statements of” the deceased that the opposite party is rendered incompetent to testify. Const. 1874, sec. 2, Schedule. Moreover, there was testimony of other witnesses bearing upon the issue sufficient to sustain the decree of the chancellor, and he is presumed to have reached his conclusion only upon competent evidence, and disregarded that part which was incompetent. Niagara Fire Ins. Co. v. Boon, 76 Ark. 153. Decree affirmed.