Green v. Board of Supervisors

Campbell, J., delivered the opinion of the court. The demurrer of J. A. Green to the amended bill was properly overruled. The ground relied on in the argument before us, as sufficient to sustain it, is the lapse of six-years after the Statute of Limitations commenced to run on the note before the filing of the amended bill, it being claimed that the running of the statute was not stopped by the filing of the original bill, because of the alleged fact that no process was issued on it for the defendant. This is a question of fact, not determinable upon the demurrer. The amended bill has relation back to the original bill, and, on demurrer, inquiry is made for the time of filing it, which is taken as the commencement of the suit against the defendant to it. If the defendant desired to present the assumed failure to issue process on the original bill as a reason for not considering the filing of it as the commencement of the suit, he should have set up the facts by plea or answer, so that an issue of fact might have been made and tried. Upon such an issue it would probably have been shown that a summons was issued on the original bill, and was executed, and that the defendant appeared and demurred ; for the record shows an entry ordering the demurrer to be stricken out. We allude to this only to vindicate the requirement of a plea or answer to present this defence, and the refusal to consider it on the demurrer. It is contended in behalf of the heirs of Hannah L. Green, who were made parties defendant by the amended bill filed in 1876, that the suit was barred as to them because the Statute of Limitations ran in their favor until they were made parties, and as this did not occur until after the expiration of six years [344] from the commencement of the running of the Statute of Limitations on the note of J. A. Green, it is barred as to them. It is well settled that the Statute of Limitations continues to run in favor of parties until the suit is commenced as to- them,, and that it is not commenced as to parties brought in by amendment until the amendment is made. But this does not avail the new parties in this suit, because Mrs. Green, whom they represent, purchased the property before the note secured by the mortgage was barred, and the suit was commenced against J. A. Green, the maker of the note, while it was unaffected by the Statute of Limitations, to enforce it against the mortgaged property. If the suit had not been commenced against the maker of the note until the right of action on it against him was barred, that would have been available as a defence to the heirs of Mrs. Green, his alienee of the mortgaged property ; or, if they had held adverse possession of the property long enough to bar all claim to it before they were made parties by amendment, that would have been a good defence to them. The proposition that the institution of the suit against the mortgagor before the bar of the statute was complete was sufficient to keep alive the mortgage as against his alienee, was announced in Benson v. Stewart, 30 Miss. 49, which is not, as urged by counsel, in conflict with the cases which hold that the Statute of Limitations runs in favor of the parties introduced into a suit by amendment until they are made parties. Both propositions are true. They are distinct and harmonious. In Brown v. Goolsby, 34 Miss. 437, the party brought in by amendment was protected in his title to the property sued for by the lapse of time sufficient to give him title to it by adverse possession, and it was held that the statute ran in his favor until the filing of the amended bill, which was the commencement of the suit as to him. The two cases cited illustrate the two legal propositions. As Mrs. Green purchased the property when the mortgage [345] debt which bound it was not barred by the Statute of Limitations, she held subject to the mortgage so long as it was not barred ; and the commencement of the suit against the maker of the note was such an assertion of the right of the creditor as to keep alive the debt, which, being in force as against the maker, is enforceable against the mortgaged property in the hands of the alienee of the mortgagor, so long as such alienee cannot invoke the Statute of Limitations as a protection against the disturbance of her claim to the title of the property by adverse possession. Mrs. Hannah L. Green was not a bona fide purchaser, in legal contemplation. She is shown to have had knowledge of the illegal action of the Board of Police in reference to the cancellation of the mortgage on the land she purchased of J. A. Green, and she held it, as he did, subject to the charge of the unsatisfied mortgage. Her heirs are mere volunteers, and hold it as she did. We find no error in the decree, and it is affirmed.