Opinion
No. 37701.
December 4, 1950.
1. Equity — limitations, statute of — generally not available to a complainant.
The general rule is that a complainant who seeks the aid of a court of equity cannot at the same time avoid the doing of equity to which the defendant would otherwise be entitled by pleading in his bill the statute of limitations against the defendant, thereby making the statute a weapon of offense instead of defense.
2. Equity — limitations, statute of — pleading as a defense.
Unless some unfair and inequitable result will flow therefrom, the statute of limitations may be pleaded and proved defensively in equity; and being a personal privilege it is waived unless set up by answer or by plea in the answer, and this applies to an answer to a cross-bill.
3. Equity — confirmation of title — cross-bill — limitations, statute of.
Complainants, husband and wife, who had been in the exclusive and undisturbed possession of the land in question for twenty-five years filed their bill to confirm their title, averring that their deed to the land had been lost before recordation, and that all the purchase price notes had been long ago paid. Defendants answered denying that the purchase price notes were all paid and by their cross-bill demanded payment of certain of the notes, to which the complainants as cross-defendants answered, again averring that all the notes had been paid years ago and that the last of them was due nearly twenty years ago, and further by plea in the answer set up the defense of the statute of limitations against the specified notes: Held that the allowance of the plea gave the complainants as cross-defendants no unconscionable advantage under all the facts and circumstances of the case, and that the motion to strike the plea was properly overruled.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Wayne County; THOMAS Y. MINNIECE, Chancellor.
O.F. J.O. Moss, for appellants.
Cases in foreign jurisdictions which are squarely in point, being what lawyers call "gray mule or all-fours cases", wherein courts of equity refused to grant complainants the relief of cancellation of deeds of trust as clouds on their titles when the complainants had not paid the indebtednesses secured by the deeds of trust even though the indebtednesses were barred by limitation are Stark v. Cooper, 203 Mo. App. 238, 217 S.W. 104; Nellis v. Minton, 91 Okla. 75, 216 P. 147; Wilson et ux. v. Davis, 80 Fla. 727, 86 So. 686; Kelly v. Coke (Ala.), 69 So. 576.
In 51 C.J. 279-280, Sec. 273, it is said: "A court of equity will require a plaintiff, suing to have a mortgage canceled as a cloud on his title, to do equity by paying or in some cases it has been held by tendering to defendant the amount of the mortgage debt, . . . even though such debt is barred by the statute of limitations. This rule is applicable where the action is brought by one who purchased from the mortgagor before the right to foreclose was barred." Some of the cases cited in the footnotes in support of this statement made in Corpus Juris are Ephraim v. Nevada Land Co., 282 Fed. 610; Lake Power Co. v. Capay Ditch Co., 226 Fed. 634, 141 CCA 390; Building-Loan Assn. v. Schwertner, 15 Ariz. 517, 140 P. 495; Wilson v. Davis, 80 Fla. 727, 86 So. 686; Hall v. Hooper, 47 Neb. 111, 66 N.W. 33; Nelson v. Nelson, (N. Dak.) 226 N.W. 476.
The one Mississippi case which appears to be directly in point with the instant case is Wall, et al. v. Harris, 90 Miss. 671, 44 So. 36.
There are numerous other Mississippi cases virtually in point. A strong case in this connection is Strickland v. Webb, 152 Miss. 421, 120 So. 168.
Another Mississippi case to the same effect is Walker-Durr Co. v. Mitchell, 97 Miss. 231, 52 So. 583.
An old Mississippi case in point with the instant case is that of Bellamy v. Shelton, 26 Miss. 250.
W.M. Hutto and E.C. Fishel, for appellees.
The appellees had a right to plead the statute of limitations in this particular case. (See original opinion, 205 Miss. 794, 39 So.2d 156.) It is not a case wherein the appellees, as complainants, are claiming an equitable title to the land, but where complainants claimed and after this Court found a deed was actually signed and delivered to Powell Davis and wife, appellees, and was lost before recordation. "An action to quiet title against the holder of a mortgage, on the naked ground that the right to foreclose the mortgage is barred by limitations, is not maintainable, unless the right to such an action is given by statute. However, a person seeking to quiet title to land may interpose the bar of the statute against a mortgagee defendant seeking in such action to foreclose his mortgage lien." 51 C.J. Sec. 38, p. 158.
"The complainant in a suit to quiet title may properly plead the bar of the statute of limitations against affirmative allegations in the answer that a former owner of the property had executed a trust deed thereon to the defendant to secure a debt, and that the defendant had a right to sell the property and apply the proceeds to the debt, and that the trust deed constituted a lien upon the property superior to the complainant's title". 44 Am. Jur. 48.
Appellees brought suit to quiet and confirm their title to 200 acres of land in Wayne County. Appellants filed an answer and cross-bill denying that the deed in question had ever been delivered and claiming that certain notes for balance due on the purchase price had never been paid and further claiming that appellees were indebted to them for certain rents and profits for all of which an accounting was sought. Upon a hearing of the first appeal we held that appellees were entitled to a confirmation of their title and affirmed the lower court in that respect, but because of the confusion and conflict in the record we were unable to harmonize the same with that portion of the decree which adjudged a balance due of $164.22 and in that respect the decree was reversed and the cause remanded with direction that a correct account be taken and stated with the right of either party to file such other pleadings or amended pleadings as may be right and proper under the facts and circumstances of the case. Davis v. Davis, 205 Miss. 794, 39 So.2d 486, 40 So.2d 156.
Upon remand to the lower court the appellees amended their answer to the cross-bill and pleaded the statute of limitation as a bar to the notes in question and further pleaded, in the alternative, estoppel against some of appellants so as to prohibit them from sharing in any recovery of a balance due on the notes. At the hearing appellants made an oral motion to strike that part of the amended answer to the cross-bill pertaining to appellees' plea of the statute of limitation. Appellants offered in evidence a portion of the record of the first trial and appellees offered the entire record of the first trial and both parties rested on the motion. The motion was overruled. Thereupon appellants declined to plead further and declined to offer any evidence and the trial court rendered a decree in favor of appellees.
The sole contention on this appeal is that the appellees are not entitled to plead the statute of limitation in a court of equity. The case of Wall v. Harris, 90 Miss. 671, 44 So. 36, is illustrative of the authorities upon which appellants rely but, in our opinion, it has no application here. It must be remembered that in the case at bar the appellees did not invoke the aid of equity and at the same time plead the statute of limitation in their bill of complaint; that plea was filed in their answer to the cross-bill wherein appellants sought affirmative relief against them. (Hn 1) It has frequently been held that in certain types of cases a party may not ask the aid of equity and at the same time refuse to do equity by pleading limitation and seek thereby to obtain an unconscionable advantage over his adversary. In those cases the statute of limitation may not be used as a weapon of offense, but (Hn 2) unless some unfair and inequitable result will flow therefrom it can be used defensively. It certainly is not and has never been the law that a party may not in proper cases plead the statute in a court of equity; it is a personal privilege which may be and is waived unless set up by answer or by plea in the answer. See Griffith's Mississippi Chancery Practice, Sections 266, 300, 327, 335, 360 and 586. In this case the statute was set up as a defense to the cross-bill by plea in the answer. (Hn 3) Appellees have been in possession of the land for about 25 years; the last note fell due in 1931 and has been barred by limitation since 1937; appellees claim that all the notes have been paid and on the first trial offered evidence to that effect, and, under all the facts and circumstances reflected by the record, we do not think that their plea of limitation gives them any unconscionable advantage over appellants and we find no error in the trial court's action in overruling the motion to strike the amended answer. The decree is accordingly affirmed.
Affirmed.