The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-12-01
SUPREME court CASES.
Reported for The Clarion BY w. H. Harper
AtsOrsey-stls~, Jseksoa. Miss.
October Terrn-Iss6.
]. I s. HAaIBRIcK, EFT ALL
V

NoXuoee county. hon. r. j. Crltz, /
Chancellor.
Rives & Rives and Evans & Baldwin,
for the appellants.
Boyle & Boyle, for the appellee.
In 1874, ]. W. Jones, of Mobile, Ala,
held deed Of trust on q certain /
tract Of land in Noxubee county, the |
property of Connor & Robinson. to |
secure debt of 1926 due froal them. |
By mutual agreement between the |
parties, Connor & Robinson, in Deeem- |
Der, 1874, sold the land TO j. l.. :. Ham |
bric& who was 10 pay for the same with
the claim which Jones held against the
land. On December is. 1874, Hambriek
executed his promissOry note 70 Jones
for 1926, the amount of such claim
together with IS per cent. interest. paw
able January l, 1876, aegregating SO, 20.
THIS note was secured by a deed of trust
from Hambriek TO Jones, on the land
purchased from Conner & Robinson,
and also on certain personal property
belong ng to Hambriek. At the time OF
the purchase of the land Hambrick was
an unmarried man.
On October 81, 1876, J. w. Jones died
in Mobile, leaving will in which
Martha G. Jones, his wife, was made
executrix. This will was duly probated
aud on December 5, 1876, letters were
| ISSUED to her by the probate court of
Mobile county, Alabama Some time
afterwards the executrix filed a copy of
the will in the chancery court of Noxu-
bee county, but the record fails to give
the date. There is nothingin the plead
tngs or the record TO show when, if ever,
| Mrs. Jones received letters testamentary
| in tais State. But counsel in tneir ar
gument before this court, proceeded
| upon the basis that such letters had not
| been granted to her here, before the
execution of the renewal note below.
On January %, 1888, a settlement was
had between Winston Jones, agent of
the executrix, Martha Q. Jones, and
| Hambrick, aud a balance of sc, ass 81
was found due; thereupon Hambrick
executed a renewal note for that amount,
payable to NJ. G. Jones as executrix of
j. w. Jones. This note was payable
January l, 1884. This renewal note
recites as fellows:
"This note is given in renewal of a
note for $6726, dated December Is, 1874,
and signed by J. L. ;. Hambrick W.
| Med Conner, +. r. Connor, r. NJ.
Pruitt and w. P.sCouDOr, payable to
Joel Walker Jones, and secured by a
trust deed upon certain lands in Noxu-
bee county, Miss, which trust deed is to
remain in force as security for this note,
which is in extension and renewal of
said former debt. Signed j. l.. 5. Ham
brick, w Med. Conner" Before this
renewal note was given Hambriek had
. ! arriaf and ha t1Tnc pf Ira
ton, he was living on the land in ques
ton.
On July 9, 1888, Hambrick executed
to his wife, bill Of sale to certain OF
his personal property, much of which
was the same as that included in the
deed of trust of December Is, 1874. On
July y, 1888, Hambrick conveyed the
lands included in this same deed of
trust and now in controversy to one f.
NJ. Bell, who, after the institution of
this suit, reconveyed it to Hambrick.
On February 1, 1854, Mrs. M. G.
Jones, exeeutrix of j. w. Jones, fled
this bill against j. l.. ;. Hambrick, w.
Med. Conner, j. l.. Jarnagin, trustee,
Mrs. NJ G. Hambrick and f. NJ. Bell,
to enforce the deed of trust of December
IS, 1874, on both the land nd personally,
to satisfy the note of January %, 1888,
claiming that tie deed of trust was
renewed by the terms of this note. The
bill also prayed that the deeds of con
veyance of the land TO +. NJ. Bell and
the personality to the wife of Hambrick
be declared fraudulent and void, and
that the same be set aside and the prop
erty subjected to the payment of the
note of January 20, 1888.
Hambrick answered setting up the
six year statute of limitations and
claiming his homestead exemption rights
w. Med. Common failed to answer and
Judgment pro c0nfeSS0 was taken against
him. Mrs. dambrick answered denying
that the sale of the personal property to
her was fraudulent and void. On the
trial evidence was introduced showing
fraud in the conveyance of the land 10
Bell, but no evidence was presented
which tended to show fraud in the sale
of the personal property by Hambrick
to his wife.
The chancellor found that the convey
ances to Bell aud to the wife Of Ham
brick were fraudulent and void, set
them aside, and ordered foreclosure of
the deed OF trust to satisfy TIE note Of
January %, 1888, and dIsallowed the
homestead claim of the defendant, Ham
brick The chancellor also decreed As
follows: "The chancellor further finds
that the matter of account herein is
simple and that a reference of this cause
to the clerk and master to ascertain and
report the amount due on said note is
not necessary, and that the amount due
thereon is the sum of eight thousand
six hundred and eleven dollars. 1t is
therefore ordered, adjudged and decreed
that the defendants !. l.. s. Hambrie K
and w. Med. Connor do pay it. \
=" The trustee in the deed of trust
was made a party to the bill and duly
served, but made no answer. No iudg-
ment pro confess0 was ever taken against
him. The defendants, J. l.. S. Hambriek
and wife, appealed.
| CAMPBELL, j., delivered the opinion OF
the court:
The note was not barred when the
new promise was made, and the deed of
trust was continued in force by the new
promise so as to be paramount to the
claim Of homestead.
| Smith d. .Sckerk, so Miss, 491.
The note was due January l, 1876.
The payee died in October, 1876, in
Alabama, where his will was proved aud
| letters testamentary granted to the APP
pellee, who is not shown to have qualified
herself to sue in this State. Therefore,
the bar of the statute had not become
complete in January, 1888, when the
new promise was made, if the Code of
1871 was applicable.
CLAYTON q. IeyTett, 80 Miss, 353.
The Code of 1871 was applicable, by
virtue of 2692 of the Code of 1880. as
a bar had not accrued under it. This
section continued in force existing laws
as to rights of action accrued before
that time until bar should accrue
under the Code of 1880, so that rights of
action accrued under the Code of 1871
were still to be governed by It's provis-
ions as to limitations unless a bar should
accrue under the Code of 1880. In this
case a bar had not accrued under il.
The statute prescribing six years as the
| time TO- bar note, the same In both
Codes, did not bar the note, because BY
the Code of 1871 continued in force as
to this by the Code of 1880, the person
entitled TO an action on the note had
died before the expiration OF the time
limited therefor, and the right of action
was saved. latter the expiration of Said
time andwithin one year after the date
of letters testamentary." Code of 1871
1852.
Section 1858 of the Code of 1880 did
not apply, because it is applicable only
where the death of the person occurs
within the last year of the time limited.
and, if il was retroactive so as to govern
in case of the death of person before it
took effect, it did not apply in this case,
because the death Of the party did not
occur within the last year of the time
for the completion Of the bar.