Bolling v. Jones , 67 Ala. 508 ( 1880 )

BBJOKELL, C. J.

— All the assignments of error, except the fourth and the seventh, relate to matters involved in the final decrees settling the equities of the cause, or, rather, declaring and defining the rights of the parties, rendered more than two years before the appeal was taken. The statute of force when the decrees were rendered, and when the appeal was taken, limited appeals to two years from the rendition of the judgment, or decree. It is insisted in the argument submitted by the counsel for the appellees, that these assignments must be disregarded, because an appeal from the decrees into which the errors are supposed to have entered was barred. The appellees joined in the assignment of errors, and submitted the cause for decision, without having pleaded in bar the statute of limitations, or moved to strike out the assignments, or to dismiss the appeal.

In all courts, the statute of limitations is in the nature of a personal defense, which must be pleaded specially, according to the practice and procedure of the court, and, if not pleaded, must be regarded as waived. — Ang. on Lim. § 285. Such statutes are not limitations on the jurisdiction of courts, which is bounded by subject-matter and by parties. They are intended solely for the benefit and protection of parties, and may be relied ou, or waived by them, as they may be advised, or may deem most proper. At common law, writs of error were governed by rules of pleading analogous to, and as well defined as the rules of pleading in original actions in courts of original jurisdiction. The assignment of errors was in the nature of a declaration. To this assignment the defendant pleaded or demurred, as he was advised. The pleas were common or special. The common plea, being simply an averment that there was no error in the record, was a mere joinder with the plaintiff in error, in referring tbe matters at law to the judgment of the court. Special matters were pleaded specially, either in abatement, or in bar. A release of errors, or that the writ of error was barred by the statute of limitation, was the matter of a special plea in bar. — 2 Tidd B. 1168-75. If these were not pleaded, the court did not notice them, and of them no advantage could be claimed by the defendant. — Brooks v. Morris, 11 How. (U. S.) 204; Merriam v. Haas, 8 Wall. 687.

In this court, the matter has been the subject of rules, adopted soon after the organization of the court, under which a practice, in some respects variant from the practice at law, has grown up, and been of uniform recognition. The rules substantially correspond with the uniform law, as to the assignment of errors, and the common plea, or joinder, in error. Special pleas have not been required, but of the matter of such pleas, the defendant in error has been permitted to avail himself by motion addressed to the court, of which notice is given the plaintiff in error by the entry on the motion docket of the court. The right of a plaintiff to bring error to reverse his own judgment, if injustice has been done him, as where it is for a less sum than he claimed, is unquestioned. If, however, he elected to execute the judgment, compelling the defendant to its payment, he was barred of the writ of error. In numerous cases, this court, without compelling the defendant in error to a special plea, has, on motion, required the plaintiff in error to make restitution, or dismissed the writ of error. — 1 Brick. Big. 104, §§ 306-10. So, of the statute of limitations, the defendant in error has availed himself, by-motion to dismiss the appeal, or to strike out the particular assignments of errors which were supposed to be within its influence. — 1 Brick. Dig. 104, §§ 311-321; Garner v. Prewitt, 32 Ala. 13; Bradford v. Bradley, 37 Ala. 453; Turner v. Turner, 44 Ala. 437. In all this class of cases, the motion was made and submitted before a joinder in error; or, if there was submission on the merits, it was accompanied with the reservation of the motion, and an agreement that it should be heard and considered notwithstanding the submission on the merits. In other words, by agreement of parties, the motion to dismiss, because of special matter, was not to be regarded as waived, or abandoned, because of the submission on the common joinder in error, but that it was reserved and the submission on the merits was subject to it.

A joinder in error, so far as I know, or can discover from the reports, has been given the operation and effect it had at common* law. It is a waiver of, all matters which do not go to the jurisdiction of the court; of all defects in the manner of introducing the cause into this court; of every matter which ought, at the common law, to have been specially pleaded. — Magruder v. Campbell, 40 Ala. 611; Carter v. Thompson, 41 Ala. 375; Alexander v. Nelson, 42 Ala. 462; Thompson v. Lea, 28 Ala. 453. This precise question, whether the statute of limitations is waived by a failure to move to dismiss the appeal, or to strike out the assignment of errors offensive to it, and a joinder in error, has not, so far as I know, been the matter of an express decision. On principle and authority, I have no inclination, if I had the right, to disregard it as a waiver by the appellees of a statute intended for their benefit, and which they may plead or not at discretion.

The mortgage executed by the intestate, Joseph A. Jones, the validity of which is assailed by the original bill, was executed after the debts of the appellant, Bolling, had been contracted, and after he had become liable as surety on the debt to Mrs. Jernigan. To support, as against the claims of existing creditors of the mortgage, it must be shown that it rests on a valuable consideration ; that the debts it purports to secure were just, legal demands. This is not shown by the recitals of the mortgage. — 2 Brick. Dig. 22, §§ 121-134. There was no effort to support the debt recited as due and owing to William F. Jones, the son of the mortgagor ; and as to that debt the mortgage was pronounced void. The consideration of the other debt, recited as owing to the wife of the mortgagor, was the rents of lands, her statutory separate estate, accruing during coverture, the mortgagor, and husband, had received. These rents the husband had the right to receive, free from liability to account, and are not a valuable consideration which will support the mortgage as against existing creditors. — Early & Lane v. Owens, at the present term.

The exemption of a homestead to the widow could only foe claimed under the former statute. — R. O. 1867, § 2061. This was the only law of force, conferring exemptions, when the debts were contracted, to the payment of which it is sought to subject the premises in controversy. It is apparent from the statute, that a homestead was not given to the widow in lands the husband had aliened in his life, but only in lands of which he died seized, having an estate therein of which his personal representative, under an order or decree of the Court of Probate, could make sale for the payment of debts. The mortgage, though void at the instance of pre-existing creditors, is valid as between the parties, their heirs, personal representatives, and privies in estate by mere operation of law. — Rochelle v. Harrison, 8 Port. 351; Dearman v. Radcliff, 5 Ala. 192; Marten v. Marten, 6 Ala. 367; Walton v. Bonham, 24 Ala. 513; Wiley v. Knight, 27 Ala. 336. There remained in the mortgagor, at the time of his death, no more than the equity of redemption in the premises. This was an interest the Court of Probate had jurisdiction to order the persona! representative to sell for the payment of debts, and a purchaser at the sale would become invested with it. — Perkins v. Winter, 7 Ala. 855; Duval v. McLoskey, 10 Ala. 636.

The equity of redemption was, also, an estate in which the widow could claim a homestead exemption ; or, if the homestead could not be set off to her, without injury to the lands of which it was a part, could claim its value, five hundred dollars, from the proceeds of the sale made by the personal representative. The Court of Probate, having ordered a sale of the lands for the payment of debts, and having ascertained that the homestead could not be assigned and separated from the lands, properly allowed the widow five hundred dollars from the proceeds of the sale made by the personal representative. When this was paid to her, as it was by crediting her bid for the premises, her claim of homestead exemption was satisfied. If a stranger had purchased at the sale made by the administrator, and from his bid the money had been paid to her, I suppose this would be conceded. Whatever might be the defects in the title, or of however insignificant value the estate of the intestate in the premises, the purchaser could not be relieved from the payment of the purchase-money, or reclaim it if paid. To all such sales the maxim, caveat emptor, applies — the purchaser buys at his peril, and can claim no relief if his purchase proves worthless. Burns v. Hamilton, 33 Ala. 210; Hickson v. Linggold, 47 Ala. 449; Port v. Hadnett, 18 Ala. 752. The widow, haying become the purchaser of the premises at the'sale made by the personal representative, was, therefore, a purchaser at her own peril, bound to tbe payment of the purchase-money, whether the title she acquired was of value or worthless. If she were now allowed a homestead exemption, in effect, she would be permitted to do that which no purchaser at a judicial sale has ever done in the absence of fraud — reclaim the purchase-money because the purchase was injudicious.

The chancellor erred' in not vacating the mortgage, and in the allowance of a homestead to the widow.

Reversed and remanded.