Berry v. Bacon , 28 Miss. 318 ( 1854 )

Mr. Justice Fisher

delivered the opinion of the court.

Thomas Berry and others, on the 20th of May, 1840, executed their promissory note to the Planters Bank for the sum of $6,258.85, payable on the 15th day of December following.

On the 23d day of May, 1840, Berry executed a deed of trust to one George W. Tharpe, on certain lands and slaves therein named, for the purpose of securing sundry debts, among others the one now in controversy. The deed of trust provides that upon the said Berry’s failing to pay at maturity, one fourth of the amount of each of the debts secured, and renewing for the balance, the trustee might proceed to sell a sufficient amount of the property to pay the said fourth; and that he might proceed in like, manner to sell annually, on default to pay a fourth part of the said debts, and to renew for the balance, until the whole debt secured should in this manner be paid. The deed further provides, that if any creditor should sue on his debt, before all of the said instalments became due, he should be considered as having waived all rights or advantages under the trust; and that the property should be appropriated to the payment of the debts of those who accepted this provision of the deed, and complied with the same.

The bill alleges two reasons for the complainants coming into a court of equity for relief. First. The death of the trustee, and the necessity of the appointment of another to execute the trust. Secondly. The judgment of forfeiture pronounced against the Planters Bank, the note having been transferred to the complainants merely by delivery.

The defendants below filed a demurrer to the bill, relying upon two grounds, as we understand from the briefs of counsel. First, the statute of limitations; and second, want of proper parties.

If the complainants were compelled to rely upon the note, as counsel suppose, for a recovery, the statute of limitations would doubtless apply to the case, and operate as a complete bar. But so far as the trust property is concerned, the note may be treated as out of the question, except for the purpose of ascertaining the amount of the principal and interest of the debt due. The note was made on the 20th of May, 1840, and payable on the 15th of December following. The object of the deed of trust was to modify this contract, and instead of paying the money on the 15th of December, 1840, to pay it by instal-ments of one, two, three, and four years. The deed of trust was a proposition, made by the debtor under seal to change the original contract, and to pay by instalments. When the creditor accepted the proposition, he accepted it as it was submitted by the debtor, as a specialty, and agreed to be bound by it as such, in consideration of the additional security. The debtor first promised to pay the whole debt at a specified time, but afterwards said to his creditor, I will bind myself by an obligation of superior dignity, and will give you additional security,.if you will permit me to pay by certain instalments; and the creditor accepts this proposition. This is briefly the contract, as consummated by the deed of trust; the effect of which was to modify the original contract between the parties, and to convert that which was a simple contract into a specialty, so far as it related to the trust estate.

Thus viewing the question, the statute of limitations constitutes no bar to the relief prayed by the bill. Hutch. Code, 830, §7.

It is next objected, that the several beneficiaries in the deed of trust, are not made parties to the bill. The bill as amended, is filed on behalf of the complainants, and all others who choose, to come in and prove their debts. This, according to the authority, is sufficient. Story’s Eq. PI. § 102.

Decree affirmed, and cause remanded to the superior court of chancery.