McNair v. Lott

Scott, Judge, delivered the opinion of the court. In cases where the statute of limitations would be a bar to an action at law, if the remedy is pursued in chancery, equity following the law requires the same length of time, as a de-fence by way of limitation, that is required in the action at law. As between mortgagor and mortgagee, when time alone is relied on as a bar, twenty years is the shortest period prescribed by law as a limitation to an ejectment; so the same period is adopted in equity as a defence to a bill to redeem. When other defences are set up, time may be a circumstance in support of them ; but as a bar of itself, it must be for at least twenty years from the last act recognizing the relation of mortgagor and mortgagee. The period within which an action at law must be brought being prescribed by statute, if the remedy is sought in a court of chancery, the same limitation must be observed, and courts of equity will not permit a party to abandon the statutory bar, and relying on a shorter period set up as a defence to the relief sought by the bill the staleness of the demand. The theory of this action is, that Papin was the person to receive the mortgage debt, and having received it within a period short of twenty years, the statute of limitations furnishes no defence to the relief sought by the plaintiffs. The petition states that Papin had assigned and transferred his right to the use and possession of said land, excluding said mortgage debts, to one Wm. T. Phillips, who entered and took possession of the same with full notice of all the before recited facts in regard to said land. This needs explanation, and it can only come by way of answer. If Phillips took with notice of the mortgage, should not the acts and conduct on his part and the part of his alienees, direct and indirect, be proved, which would show that he held adversely to it, and claimed by virtue of the sheriff’s sale in 1827. So late as the time of Lord Redesdale it was thought that the defence of .the statute of limitations could not be taken advantage of by a demurrer; and though the law has been since otherwise [191] settled, yet it is obvious that such a mode of using the statute of limitations should only be employed, if at all, where it plainly appears that the plaintiffs’ case is fully stated, and it is clear that he can not recover. The parties have framed their petition on a theory which would not admit of a defence growing out of the statute of limitations by way of a demurrer, and therefore it can not be expected that they would state by way of anticipation in their petition the facts which would repel such a defence. It is clear that a defence arising out of the statute of limitations could not be used by way of demurrer to an action at law. All distinction between actions is now abolished. Shall then the rule that prevailed in actions at law be adopted, or that which obtained in courts of equity ? Or shall the distinctions between actions at law and suits in equity be kept up in order to ascertain when the de-fence growing out of the statute of limitations shall be a plea or demurrer ? If considerations of convenience are to determine this question, there can be but little doubt that the rule at law will be preferred. The main point relied on in support of the demurrer is, that the instrument of mortgage or that by which the lien was created was a French hypothecation, and is not within the statute of 20th October, 1807, concerning mortgages in force at the time ; consequently, that there is nothing to prevent the land on which the lien was given from being sold by virtue of an execution on a general judgment for the debt secured by the hypothecation. Without stopping to inquire whether land, in the situation supposed, could be effectually sold on a general judgment for the debt secured by the lien, we will consider the proposition made in support of the demurrer. In doing this, it must be borne in mind that the statute under consideration was enacted before the introduction of the common law; that the then territory had but a few years previously been a French colony, and contained many French inhabitants speaking the language and employing the forms of instruments in evidencing their contracts which were in use among that people. Under such circumstances, [192] it is reasonable to suppose that the general assembly, in legislating on the subject, would have an eye to the contracts of the French as well as to those of the American population. The language of the act shows that the legislature was aware of the state qf things under which it was acting. The words are, “ any person holding an instrument in writing purporting to he a mortgage,” &c. The original words of the instrument in the clause of alienation, are “ ohligé, engagé, aliené, afecté et hypothequé.” These, under our law, would be sufficient to convey a title. The other parts of the instrument sufficiently show that an hypotheque was intended, which is the French word for a mortgage. A title is conveyed, and it appears from the body of the instrument that it was passed as a security for a debt. Is not that the very thing contemplated by the act ? The parties designate it by a word which we in our language translate “ mortgage.” The language of the instrument shows that it was designed for the purpose which is intended by a mortgage under our law. There is no reason why one, who makes an instrument like that under consideration, should not have all the advantages to be derived from a formal mortgage under our law. In executing a French hypotheque nothing more or less was intended than what is contemplated by a mortgage. The two instruments then should receive the same favor from the law. As this cause will be remanded, we will make a suggestion or two which may be of some service in its future progress. It does not appear whether the sum received by Papin in 1886 from Governor Delassus was the entire mortgage debt, or whether it was the balance due after deducting the sum of $1050 made by a sale of the lot in dispute in 1827; whether Delassus, in paying the amount in 1836, supposed he was paying the balance of the debt due, considering the mortgaged lot as sold and passed away from him, or whether he paid under the belief that he was relieving all the mortgaged property from the incumbrance. We would know whether the omission to enter satisfaction on the judgments of foreclosure had its cause in the consideration that Delassus was [193] only paying tbe balance of a debt, and that the mortgaged lot haring been sold he was no longer concerned about it. Without pretending that the answers to these suggestions will be decisive of the case, we can not but think that satisfactory answers to them might throw some light upon it. Judge Ryland concurring, the judgment will be reversed, and the cause remanded; Judge Leonard absent.†