Opinion
No. 35582.
April 24, 1944. Suggestion of Error Overruled, May 22, 1944.
1. CONSTITUTIONAL LAW. Mortgages.
The statute limiting time to bring action to invalidate previous foreclosure sale by reason of defect in notice of sale to one year from time of its enactment is not, as applied to a pre-existing deed of trust, violative of constitutional provision against "impairment of contracts" as restricting application of general ten-year statute of adverse possession, since right to sue is "remedial right which could be diminished by legislature provided a reasonable time was allowed to enforce the right" (Laws 1934, chap. 250; Code 1942, secs. 709, 711, 888).
2. CONSTITUTIONAL LAW. Mortgages.
The statute limiting time to bring action to invalidate previous foreclosure sale by reason of defect in notice of sale to one year from time of its enactment is not invalid as "class legislation" (Laws 1934, chap. 250).
3. CONSTITUTIONAL LAW.
The right to sue is distinct from right sought to be enforced, and the latter is "substantive right" and not subject to legislative impairment; while the former is "remedial" and can be enlarged or diminished provided a reasonable time is allowed in which to enforce the vested right.
4. STATUTES.
Notwithstanding statutory provision that error in mode of foreclosure making sale void will not be cured by any statute of limitations except as to ten-year statute of adverse possession, legislature was competent to modify provision by amendment providing that defect could not be asserted one year after enactment of such amendment (Code 1942, secs. 709, 711, 888; Laws 1934, chap. 250).
5. LIMITATION OF ACTIONS.
The statute limiting time to bring action to invalidate previous foreclosure sale by reason of defect in notice to one year after its enactment could be asserted against guardian of minors to whom land was devised subject to a deed of trust where statute did not contain saving clause in favor of minors (Laws 1934, chap. 250).
6. LIMITATION OF ACTIONS.
Minority does not per se bestow immunity against statute of limitations and statute of limitations may be asserted against guardian or his wards unless there is legislative saving in their favor.
7. MORTGAGES.
Where minors whose land was sold in 1929 at foreclosure sale under deed of trust sought to cancel purchaser's title because of defects in notice of sale, but brought suit more than one year after statute was enacted limiting such right to one year after its enactment, minors were barred from bringing such suit, notwithstanding that purchaser's possession had not continued for 10 years (Laws 1934, chap. 250; Code 1942, secs. 709, 711, 888).
APPEAL from the chancery court of Yazoo county, HON. T.P. GUYTON, Special Chancellor.
Bridgeforth Love, of Yazoo City, for appellant.
The foreclosure notice is sufficient under the statute.
Freeman's note to Tyler v. Herring, 67 Miss. 169, 6 So. 840, 19 Am. St. Rep. 263; McLendon v. McGee, 189 Miss. 712, 198 So. 725; Yellowly v. Beardsley, 76 Miss. 613, 620, 24 So. 973, 71 Am. St. Rep. 536; Wilkinson v. Federal Land Bank of New Orleans, 168 Miss. 645, 150 So. 218; Code of 1892, Sec. 2443; Code of 1906, Sec. 2772; Code of 1930, Sec. 2167; Constitution of 1890, Sec. 111; Laws of 1896, Chap. 103; Laws of 1908, Chap. 180.
The setting aside of the foreclosure sale is now barred, even if the notice was insufficient.
McLendon v. McGee, supra; Laws of 1934, Chap. 250.
The exemption from the operation of statutes of limitation, usually accorded to infants and married women, does not rest upon any general doctrine of the law that they cannot be subjected to its action, but in every instance rests upon express language in those statutes giving them time after majority, or after cessation of coverture, to assert their rights.
Foster v. Yazoo M.V.R. Co., 72 Miss. 886, 18 So. 380; Gulf S.I.R. Co. v. Bradley, 110 Miss. 152, 69 So. 666, Ann. Cas. 1918D, 554; Neely v. Craig, 162 Miss. 712, 139 So. 835; Morgan v. Hazlehurst Lodge, 53 Miss. 665; Hall v. Wells, 54 Miss. 289; Summers v. Brady, 56 Miss. 10 ; Vance v. Vance, 108 U.S. 514, 521, 27 L.Ed. 808, 811, 2 S.Ct. 854.
Chapter 250 of the Laws of 1934 is plainly and patently a general law; and is not a special law enacted for the benefit of individuals in cases provided for by general law, nor does it suspend the operation of any general law for the benefit of any individual. True it is, the legislature, in that act, placed all persons having a right of action to set aside a foreclosure sale theretofore made, because the notice of sale and advertisement did not disclose the name of the mortgagors whose property was being foreclosed, in a special class and required all members of the class to bring suit within twelve months from the passage of the act and barred any suit thereafter; but the act operated equally on all members of the class and is therefore constitutional.
State ex rel. Jordan v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710; Clark v. State, 169 Miss. 369, 152 So. 820; State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129; City of Jackson v. Deposit Guaranty Bank Trust Co., 160 Miss. 752, 133 So. 195; Hall v. Wells, supra.
An existing law of limitations is not considered as being a part of the contract. It is within the power of the legislature to shorten the period of limitation, leaving always a reasonable time within which to invoke a remedy for a breach of contract, or to prolong the period of limitation, where the right to plead it has not accrued.
Briscoe v. Anketell, 28 Miss. 361; McBride v. Burgin, 142 Miss. 859, 108 So. 148; Gilfallan v. Union Canal Co., 109 U.S. 401, 3 S.Ct. 304, 27 L.Ed. 977; 12 Am. Jur. 89.
Ruth Campbell, of Yazoo City, and H.F. Jones, of Belzoni, for appellees.
The title to a minor's land remains in the minor and a guardian cannot take title in his own name.
Code of 1930, Sec. 1882.
A mortgage, given upon the land for a minor by his guardian, should show the Christian and surname of the minor or minors for whom said guardian is authorized to act, and should be executed and acknowledged in that manner, in view of Section 2167 of the Code of 1930, requiring the name of the mortgagor or mortgagors whose property is being advertised to appear in the notice.
A foreclosure by advertisement in a paper must show the name of the mortgagor or mortgagors whose property is being advertised for sale, and if wrong name is shown sale is void.
Blakeney v. Smith, 183 Miss. 151, 183 So. 920; Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973; Code of 1930, Sec. 2167.
Where minors' suit was filed February 20, 1939, to set aside trustee's sale made February 23, 1929, and pay indebtedness due thereunder, suit is not barred by Chapter 250 of the Laws of 1934, in view of Section 2167 of the Code of 1930, the law under which the land was sold and the contract made.
Wilkinson v. Federal Land Bank of New Orleans, 168 Miss. 645, 150 So. 218; Price v. Harley, 142 Miss. 584, 107 So. 673; Everett v. Williamson, 163 Miss. 848, 143 So. 690; Lee v. Smith, 189 Miss. 636, 198 So. 296; State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129; Constitution of 1890, Secs. 90(e), 87, 16; Constitution of the United States, Sec. I, Article 14.
Complainants were the minor devisees under the will of Louisa Crump, their grandmother. The lands here involved were foreclosed under a deed of trust executed under court decree by Clarence Perry, guardian of said minors, to discharge a pre-existing deed of trust given by Louisa Crump. At the foreclosure sale in 1929, appellant became the purchaser and took possession under trustee's deed. Such possession had continued for a period just three days short of ten years before bill herein was filed. Complainants alleged certain irregularities in connection with the administration and guardianship proceedings, attacked the validity of the guardian's deed of trust and sale thereunder, and sought to have canceled the title and claim of appellant to the lands.
After the overruling of defendant's demurrer, he filed answer to which were attached two special defenses by way of plea. Such defenses were (1) that the suit of complainants was barred by Chapter 250 of the Laws of 1934; and (2) defendant was a bona fide purchaser. The chancellor sustained the second plea but overruled the first. The final decree canceled the defendant's trustee's deed and adjusted equities between the parties. Defendant appeals.
The chancellor either foreclosed or decided adversely to complainants all issues save the invalidity of the trustee's sale and the inapplicability of the 1934 Act. There is no cross appeal. The defect in the foreclosure proceedings was found to be in the description in the notice of sale under 1 Miss. Code 1942, Section 888 (Code 1930, Section 2167) of the mortgagor as "Clarence Perry, guardian of minors Perry," whereas the deed of trust properly described him as "guardian of minors Crump."
We forego consideration of the effect of this discrepancy since such defect relates to the description of the mortgagor, and if the Act of 1934 is an effective bar it is decisive. Chapter 250, Laws of 1934, is as follows: "All . . . mortgagors of real estate . . . located within this state . . . who may have [the] right to have set aside . . . any title to such real estate by reason of the . . . neglect . . . of any trustee . . . to insert in any notice of sale of such real estate, the name of said . . . mortgagor . . . shall commence suit in the court having jurisdiction of such cause of action within twelve months from the passage of this act, and upon the failure . . . of such . . . mortgagor . . . or other person to commence suit within said time, the right to bring such suit, and the remedy to enforce such right of action shall be deemed thereafter to be completely extinguished . . ." It is conceded that appellant met the further proviso of the act that he as purchaser had been in the constructive possession of the property for a little over five years prior to the filing of this suit.
The learned chancellor held the 1934 act to be ineffective, and if applied so as to restrict the application of the general ten year statute (1 Miss. Code 1942, Sections 709, 711) would run afoul of the constitutional prohibition against impairment of contracts, and that it was otherwise invalid as class or private legislation. We are unable to accede to these views and need not elaborate the latter point beyond reference to McLendon v. McGee, 189 Miss. 712, 198 So. 725. See also Taylor v. Farmers Fire Ins. Company, 101 Miss. 480, 58 So. 353; Nash v. Fletcher, 44 Miss. 609.
The right to sue is distinct from the right sought to be enforced. The latter is a substantive right and is not subject to legislative impairment. The former is remedial and can be enlarged or diminished provided a reasonable time is allowed in which to enforce the vested right. Hill v. Boyland, 40 Miss. 618; Hall v. Wells, 54 Miss. 289, 297; Briscoe v. Anketell, 28 Miss. 361, 61 Am. Dec. 553; Russell Inv. Co. v. Russell, 182 Miss. 385, 416, 178 So. 815, 182 So. 102; McBride v. Burgin, 142 Miss. 859, 108 So. 148; Gilfillan v. Union Canal Company, 109 U.S. 401, 3 S.Ct. 304, 27 L.Ed. 977; 12 Am. Jur. Constitutional Law, Sec. 445, p. 89. One year is a reasonable period. Hall v. Wells, supra; Morgan v. Hazlehurst Lodge, 53 Miss. 665; Foster v. Yazoo M.V.R. Company, 72 Miss. 886, 18 So. 380; Campbell v. Horne, 147 Fla. 523, 3 So.2d 125.
To avoid the impact of these decisions, appellee contends that 1 Miss. Code 1942, Section 888, provides "An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year statute of adverse possession." The last clause did not create a limitation but merely left its efficacy unimpaired despite the preceding provision. As to the first quoted clause, it is clear that the legislature was competent to insert it, modify it, or repeal it.
This brings us to the last contention that the limitation may not be asserted against the guardian, or his wards who are minors. Minority does not per se bestow immunity. There must be a legislative saving in their favor. Summers v. Brady, 56 Miss. 10; Foster v. Yazoo M.V.R. Company, supra; Morgan v. Hazlehurst Lodge, supra; Neely v. Craig, 162 Miss. 712, 139 So. 835; Lane v. Travelers Ins. Company, 230 Iowa 973, 299 N.W. 553 Vance v. Vance, 108 U.S. 514, 2 S.Ct. 854, 27 L.Ed. 808; 34 Am. Jur. Lim. of Actions, Sec. 197, p. 158; 37 C.J., p. 707.
The defendant's first special plea ought to have been sustained.
Reversed and decree here for appellant.