Opinion
No. 32036.
February 3, 1936. Suggestion of Error Overruled March 16, 1936.
1. STATUTES.
Where general words of statute follow enumeration of particular classes of things, general words will be construed as applicable only to things of same general class as those enumerated, except where specific words embrace all objects of their class, so that general words must bear different meaning or be meaningless.
2. LIMITATION OF ACTIONS. Statute prohibiting maintenance of "action" or "suit" or other proceedings to enforce trust deed after remedy at law to enforce debt has been barred includes "proceeding" to foreclose trust deed by exercise of power of sale contained in deed ( Code 1930, sections 2290, 2313).
The words "action or suit" as used in Code 1930, section 2290, prohibiting maintenance of action or suit or other proceedings to enforce trust deed after remedy at law to enforce debt has been barred, cover every proceeding of judicial character by which trust deed may be enforced and words "other proceedings" would be meaningless if restricted to proceedings of a judicial character.
3. LIMITATION OF ACTIONS. Advertisement of sale of property secured by trust deed constitutes "proceeding" brought or had on trust deed, commencement of which tolls statute of limitations ( Code 1930, sections 2167, 2290, 2292, 2313).
The word "proceeding" means an act, measure, or step in a course of business or conduct.
4. LIMITATION OF ACTIONS.
Proceeding for foreclosure of trust deed commenced three days before note secured thereby would become barred by limitations by advertisement in newspaper in accordance with trust deed held not barred by limitations, notwithstanding sale could not have been made before expiration of statutory period (Code 1930, sections 2167, 2290, 2292, 2313).
APPEAL from the chancery court of Chickasaw county; HON. JAS. A. FINLEY, Chancellor.
Joe H. Ford, of Houston, for appellant.
All promissory notes become barred by the six-year statute of limitations six years after maturity. There can be no question but that the note in this case was barred after February 12, 1933, and that a suit at law could not have been maintained on it after that time. Neither could a suit in equity have been maintained for foreclosure of the deed of trust securing the note that was filed after that time.
McDaniel v. Short, 127 Miss. 520, 90 So. 186; Proctor v. Hart, 72 Miss. 288, 16 So. 595; Fulgham v. Burnett, 151 Miss. 111, 117 So. 514; Hembree v. Johnson, 119 Miss. 204, 80 So. 554; Central Trust Co. v. Meridian L. Ry. Co., 106 Miss. 431, 63 So. 575; Greene v. Greene, 145 Miss. 87, 110 So. 218; Musser v. First National Bank, 165 Miss. 873, 147 So. 783.
Foreclosure of a deed of trust out of court does not stop the running of the statute of limitations against the debt secured thereby.
Sections 2154, 2290 and 2313, Code of 1930; Lamkin v. Nye, 43 Miss. 241; Swalm v. Sauls, 141 Miss. 515, 106 So. 775.
The right to enforce a mortgage cannot be exercised after the expiration of a period of limitations fixed by statute, in the absence of anything, removing the proceedings from the operation of the statutory bar.
41 C.J. 744 and 869, sec. 1074.
In several jurisdictions it is held that as the mortgage is a mere incident of the debt, or security for its payment, when the right of recovery as to the debt is barred, the mortgage is also barred, even though the promise to pay is incorporated in the mortgage.
37 C.J. 704 and 705, sec. 24; McDaniel v. Short, 127 Miss. 520, 90 So. 186; Hembree v. Johnson, 119 Miss. 204, 80 So. 554; Central Trust Co. v. Meridian Light, etc., Co., 106 Miss. 431, 63 So. 575, 51 L.R.A. (N.S.) 151, 64 So. 216; Green v. Mizelle, 54 Miss. 220; Maddux v. Jones, 51 Miss. 531; Huntington v. Bobbitt, 46 Miss. 528; Green v. Gaston, 56 Miss. 748; Hoggart v. Wilczinski, 143 Fed. 22, 74 C.C.A. 176.
The running of the statute against foreclosure is stopped by the institution of proceedings by the mortgagee to enforce it or to collect his debt.
41 C.J. 873.
A futile attempt to foreclose during the period of limitations does not stop the running of the statute.
Hubbard v. Dahlke, 277 Mo. 516, 210 S.W. 652.
The running of the statute of limitations is only stopped "when a claim is submitted to the jurisdiction of a court for determination."
37 C.J. 1054, sec. 479.
Fred M. Belk, of Holly Springs, for appellee.
Practically the only question in this case is this: Does the publication in a newspaper, in accordance with and made mandatory by section 2167, Mississippi Code of 1930, of the notice of sale, under the deed of trust, by the trustee, on February 9, 1933, stop the running of the statute of limitations and is that notice such "other proceedings had or brought within the time for the commencement of an action at law" on the note, as provided in section 2290, Mississippi Code of 1930?
19 R.C.L. 620, sec. 423; 7 Ann. Cas. 185.
The construction of the words "other proceedings," as used in section 2290, is a virgin field in Mississippi. I have sought the aid of four major law publishing houses, and they, as well as I, have not found any authority which directly decides this question.
The nearest approach, in Mississippi, to a construction of the words "other proceedings" that are used in the statute, is in Miller v. Land Company, 94 Miss. 111, but particularly page 118.
Since an action is an action at law, and a suit is a suit in chancery, what then could the Legislature have meant by the words "other proceedings," unless they meant foreclosure proceedings or non-judicial proceedings?
The advertising is mandatory and not contractual. It is an "other proceeding" provided for in section 2290. It must be done.
The Legislature intended that the note should be barred after six years from its due date, unless "action," (at law), or "suit," (in chancery), or "other proceedings," (foreclosure proceedings by advertisement and following the provisions of section 2167), any of which must be "brought within six years from the due date of the note," and any one of them, if properly commenced within six years, would toll or stop the running of the statute of limitations, "the proceedings being necessarily viewed as a unit," and thereby be "had within the time for the commencement of an action at law" upon the note.
The courts have held there is a vast difference between "enforce" and "to proceed."
50 C.J. 427, note 91.
In this case the mortgagee instituted the "other proceedings" before the bar attached and followed the strict mandate of the law in advertising, although he had other remedies.
Argued orally by Fred M. Belk, for appellee.
On February 11, 1926, the appellant executed and delivered to the appellee a promissory note due February 11, 1927, secured by a deed of trust on land, with the usual power of sale in the trustee therein on the failure to pay the note at its maturity. The note not being paid, on February 8, 1933, three days before the note would become barred by section 2292, Code of 1930, the trustee began proceedings for the foreclosure of the deed of trust by an advertisement in a local newspaper, in accordance with the provisions of the deed of trust and section 2167, Code of 1930, setting forth that the land would be sold on March 17th. On March 15th the appellant sued out an injunction restraining the sale of the land, alleging in her bill therefor that the note secured by the deed of trust was then barred by the statute of limitations. On final hearing the injunction was vacated and the trustee authorized to proceed with the sale of the land "after having advertised . . . said property according to the law and the terms of said deed of trust."
Section 2290, Code of 1930, is as follows: "When a mortgage or deed of trust shall be given on real or personal estate, or when a lien shall be given by law to secure the payment of a sum of money specified in any writing, an action or suit or other proceedings shall not be brought or had upon such lien, mortgage, or deed of trust to recover the sum of money so secured but within the time that may be allowed for the commencement of an action at law upon the writing in which the sum of money secured by such mortgage or deed of trust may be specified; and in all cases where the remedy at law to recover the debt shall be barred, the remedy in equity on the mortgage shall be barred."
This statute first appeared as article 4 of section 1, chapter 57 of the Code of 1857, and for reasons that will hereafter appear it will be best to begin with its then interpretation. Article 5 of the second section of chapter 57 of that Code provided a six-year period of limitation for actions on promissory notes. That Code did not, as does section 2313, Code of 1930, provide that "the completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy." It is this provision of the Code of 1930 that requires the meaning of the statute here under consideration, as it appeared in the Code of 1857, to be first determined.
Two questions are here presented: (1) Is a proceeding to foreclose a mortgage or deed of trust by the exercise of a power of sale therein within the prohibition of the statute? If it is, then (2) is an advertisement of the sale of the property secured by the mortgage or deed of trust a proceeding "brought or had, upon such, . . . mortgage or deed of trust, to recover the sum of money" secured thereby?
The prohibition is against an "action or suit, or other proceedings," and the word "proceedings" is broad enough to cover any method of enforcing a lien, either judicial in character or in pais, and must be given that meaning here, unless the ejusdem generis rule of construction, because of its being preceded by the words "action or suit," requires it to be restricted to proceedings of a judicial character. This rule is that "where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated." 59 C.J. 981. Like all other rules of construction, this rule is simply an aid invoked by the courts in determining the intent with which words are used and should not be applied when so to do would defeat the purpose sought to be accomplished by the use of the words, the meaning of which is under consideration. It has no application "where the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless." 59 C.J. 983; Ellis v. Murray, 28 Miss. 129. In so far as we are aware, the words "action or suit" cover every proceeding of a judicial character by which a mortgage, deed of trust, or other lien may be enforced, and therefore the words "other proceedings" would be here meaningless if restricted to proceedings of a judicial character.
If the statute should not be so construed, the foreclosure of a deed of trust by the exercise of the power of sale therein would not be within the statute's prohibition, thereby defeating the evident intention of the Legislature to bar all proceedings to enforce a mortgage deed of trust or lien when the debt secured thereby is barred.
We come then to the next question: Is an advertisement of the sale of the property secured by a mortgage or deed of trust a proceeding "brought or had, upon such, . . . mortgage or deed of trust, to recover the sum of money" secured thereby? The word "proceeding" means "an act, measure or step in a course of business or conduct." Webster's New International Dictionary (2 Ed.). An advertisement of the sale of the property secured by a deed of trust, necessary to be made for its foreclosure in pais, is undoubtedly an action or step in a proceeding to foreclose by that method.
But it is said, in effect, by counsel for the appellant that since under section 2313, Code of 1930, which did not appear in the Code of 1857, the completion of the period of limitation bars not only the remedy, but the right itself, the note secured by this mortgage became extinguished before the sale thereunder could have been made, and therefore the trustee was without right to sell the land for the payment of a debt that no longer existed. In so far as we are aware, the courts uniformly hold that where a proceeding to enforce a mortgage, deed of trust, or other lien on property is begun within the statutory period therefor no lapse of time thereafter, in the absence of laches, will bar its prosecution to a conclusion, unless a statute otherwise provides. Moreover, the statute here under consideration must be held to have the same meaning when brought into the Code of 1930 as it had when it first appeared in the Code of 1857, unless it is manifest that the Legislature otherwise intended. The mere fact that another statute appearing in the same Code (that of 1930) provides that "the completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy" cannot be held to so indicate.
Affirmed.