Central Trust Co. v. Meridian Light & Ry. Co.
Central Trust Co. v. Meridian Light & Ry. Co.
Opinion of the Court
delivered the opinion of the court.
On the 17th day of May, 1890, the Meridian Gaslight’ Company conveyed to the St. Louis Trust Company the-
At the close of appellants’ testimony, the chancellor sustained an objection which had been made in proper form to the introduction of the bond sued on, and excluded them from the evidence on the ground that their execution had not been proven. It is unnecessary for us to decide whether or not the chancellor erred in so doing, for the reason that this evidence was not excluded until complainants had rested their case, and on the pleading and evidence then presented appellants were not entitled, as will presently appear, to the relief prayed for, even had the bonds not been excluded from the evidence.
One of the defenses relied upon by appellee is that the bonds sued on are barred by our six-year statute of limitations.
“The statute of limitations begins to run, whenever the cause of action accrues. In other words, the time limited is to be computed from the day upon which the plaintiff might have commenced an action for the recovery of his demand.” Johnson v. Pyles, 11 Smedes & M. 189.
"When the demand for the payment of the interest due on these bonds, made on the 1st day of June, 1899, was
We have examined, but must decline to follow, the authorities to the contrary cited by counsel for appellants. It may be, and probably is, true, as stated in some of these cases, that this provision is primarily for the benefit of the' bondholders, and is inserted in' order to make the bonds more attractive to investors; but, when the bonds contain no language which either expressly or by necessary implication so limits its benefits, it necessarily follows that it can be invoked by the maker as well as the holder. To hold otherwise would be to make a contract for the parties different from the one they themselves have made.
There is no force in the argument, also advanced, in some of these cases, that it would be inequitable to permit the maker of a bond containing such a provision to put the statute in operation by' his own wrongful act— i. e., by the breach of his contract'to pay the interest at .stated intervals — for the reason that statutes of .limitation are always put in operation by the wrongful acts of the parties invoking them. San Antonio Real Estate, etc., Association v. Stewart, supra.
We have not overlooked the provision in appellants’ deed of trust that it should be foreclosed by the trustee upon its being requested so to do, and that no such request was made of the trustee prior to the institution of this suit. That fact is wholly immaterial for the reason that the statute of limitatioiis begins to run, not from the time a request of the trustee to foreclose a deed of trust is made, but from the time the debt secured thereby becomes due and payable. Affirmed.
Reference
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- Central Trust Co. v. Meridian Light & Ry. Company
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- 1. Limitation of Actions. Running of statute. Time of running. Actions on bonds. Estoppel to invoice statute. Effect of tar. Security. Rights of junior mortgagee. The statute of limitations begins to run, whenever the cause of action accrues. In other words, the time limited is to he computed from the day upon which the plaintiff might have commenced an action for the recovery of his demand. 2. Limitation of Actions. Time, of running. Action on bonds. Where bonds provided thaf '“if default shall be made in the payment of any quarterly annual installment of interest on this bond, and be demanded, and shall remain unpaid for ninety days after such demand, the principal of this bond shall at once become due and payable.” '.In such case a right of action accrued on the date when the interest on such bonds was demanded and refused, even though there was no request that the trust deed securing the bonds be foreclosed by the trustee.’ 3.- Limitation of Actions. Estoppel to invoice statute. The fact that the maker of an instrument puts the statute of limitations in operation by the breach of his contract does not estop him from pleading sjuch statute, since the statutes of limitations are always put in operation by the wrongful acts of the '■ parties invoking them. 4. Limitation of Actions. Effect of tar. Security. Rights of junior mortgagee. A junior mortgagee has no right to redeem the property covered by his mortgage from a sale under a prior mortgage when the debt secured by his mortgagee is barred by the statute of limitations. OPINION ON SUGGESTION OF EBKOR. • 1. Limitation of Actions. .Accrual of action.. Bonds Limitation of actions. Where bonds on their face provided that if interest thereon remained unpaid ninety days after demand',.-the principal should become payable, the right of action upon such default was not affected by a provision in a deed of trust securing the bonds, that should there be default in the payment in any installment of interest for ninety days, the whole of the principal of the bonds outstanding might at the option of the trustee be declared due and payable, since the clause in the bonds affect only the particular bonds in which they are written, and the failure to pay interest on one bond has no affect on the maturity of another bond, while the clause in the deed of trust affects all of the bonds and confers power upon the trustee to declare all of them due upon the failure to pay the interest due on any one of them, and hence the running of the statute of limitations against, a right of action on the bonds is not tolled by the provision in the trust deed. 2. Limitation of Actions. Pleading statute. While it is true that in equity the defense of the statute of limitations can be raised by demurrer when the facts establishing it. appear on the face of the bill, yet it cannot be done.by a general, demurrer. In order to be so availed of, the demurrer must specifically set up the statute as one of the grounds thereof.