Ebenezer Kilpatrick vs. Ranson Byrne, Adm'r, et. al., 25 Miss. 571

Mr. Justice Yerger delivered the opinion of the court. In the year 1837, the complainant obtained a judgment in the circuit court of Marshall county against Nelson, Chambers, & Co. From that judgment Nelson, Chambers, & Co. prosecuted a writ of error to the high court of errors and appeals, in which court the original judgment was affirmed in the year 1839. Between the rendition of the judgment in the circuit court and its affirmance in the high court, Nelson, Chambers, & Co. sold a tract of land to William Dye, on which an execution, founded on said judgment, was levied.

William Dye filed a bill enjoining a sale of the land, and during the pendency of the suit he died, and the suit was revived in the name of his heirs, and such proceedings had, that, in July, 1846, the injunction was dissolved. Complainant then obtained a vendüioni exponas for the sale of the lands, but the sale was again prevented by an injunction obtained on the 17th September, 1846, by Ransom D. Byrne, as administrator, &c. of Dye. The complainant demurred to the bill of Byrne, and on the 5th of March, 1847, the demurrer was sustained and the bill dismissed.

An alias venditioni exponas was then issued, and the complainant under it became the purchaser of the land. The complainant then filed the present bill, for the purpose of having the deeds made to Dye cancelled and removed as clouds upon his title. At the time that Dye acquired title to the lands in controversy, the judgment in favor of complainant against Nelson, Chambers, & Co., was certainly a lien upon them, and Dye became the owner of them subject to that lien.

It is also true, that the lien of this judgment remained and continued in full force on the 24th day of February, 1844, and so continued for two years thereafter. But the defendant Byrné insists, that this lien ceased and determined at the end of two years from the 24th day of February, 1844, and that the complainant acquired no title to the premises by virtue' of the sale made under the venditioni exponas in the year 1849. The thirteenth

section of the act of 24th February, 1844, declares, “that no judgment heretofore rendered shall operate as a. lien on the property of the defendant or defendants, for a longer time than two years from the passage of the act.” Hutch. Code, 832. If the questions presented by this record were before us for the first time, and we were now to give a construction to the 13th

section of the act of limitations above’ quoted, we would incline very much to the opinion, that wherever an execution, founded upon a judgment rendered prior to the 24th day of February, 1844, had been levied on property before the expiration of the two years provided in the act, a sale under it, though made after the lapse of two years, would relate back to the date of the levy, so as to give the purchaser under it the benefit of the lien as it existed at that time. Such a construction of the 13th

section would, in our opinion, accord with the well settled principles of the doctrine of relation, and carry out the legitimate purposes and views of the legislature. But the decisions of this court heretofore have placed a different construction upon this section, and we, therefore, yield our individual opinions to the adjudications of the court, and must, therefore, hold, that the lien of all judgments rendered prior to the 24th February, 1844, ceased at the end of two years from that date, although an execution may have been levied within that time, but no sale made under it till afterwards.

See 11 S. & M. 43; 12 Ib. 473; Ib. 697; and 13 Ib. 439. But the counsel for the complainant insists, that while it may be true as a general rule, that the lien of. a judgment rendered prior to the 24th February, 1844, expired at the end of two years from that date, yet the facts of this case make it an exception, and withdraw it from the operation of the rule.

The circumstance relied upon as forming this exception, consists in the fact that the complainant, when the statute of limitations was passed in 1844, was restrained by injunction from taking out execution on his judgment, and continued so enjoined until more than two years had elapsed from the passage of the law.

However just and reasonable it may be, that the legislature should have held, that these facts should constitute an exception to the general operation of the statute of limitations, it is certainly true, that they have not so declared it; and it has been frequently declared by this court, that where the statute makes no exceptions the court can make none. But the very point now urged has been heretofore adjudicated by this court. In Robertson v. Alford, 13 S. & M. 509, the court declared, that an injunction issued under the 6th

section of the act of 1843, establishing the mode of procedure against delinquent banks, did not suspend the operation of the statute of limitations as to claims held by a bank. In that case, Judge Sharkey remarked, that “the statute of limitations is one of good policy. It is a statute of repose, and should not be so construed as to defeat the object intended, by creating exceptions in cases supposed to be analogous in principle to those expressly excepted. To do so, would be to undertake to supply defective legislation by engrafting new provisions on the statutes.

Cases not excepted by the legislature cannot be excepted by the courts; ” and he cited the cases of McIver v. Ragan, 2 Wheat. R. 25; Demarest v. Wynkoop, 3 Johns. Ch. R. 129, as fully sustaining his position. But it is said, that the injunction was sued out in the foregoing cases by a third party, while in the record before us it was obtained by the very party who is claiming the benefit of it. We concede the force of this position, and readily acknowledge that it presents a case which ought to have been excepted from the operation of the statute. But the statute on this subject is general.

It has made no exception, and if we were to make an innovation upon it in this case, it would be a precedent for making an exception of every case that might hereafter arise, which, in the opinion of the court, in equity should be excepted. In the case of Barber v. Millard, 16 Wend. R. 572, it was held, that the fact, that the commencement of a suit was stayed by injunction, did not take the case out of the statute.

The court said: “ It is clear that the case is not within the letter of either of the provisoes, and the equity of the statute has never been extended far enough to aid the plaintiff.” Upon 'the whole, we were much disposed to give the complainant the relief sought by him. We do not see how it can be done consistently with the rules of law heretofore established by this court. But it is insisted by the counsel for the appellant, that the questions raised by the defendant Byrne have been adjudicated between these parties, in a suit heretofore decided by this court.

Upon examining that case, we find that Byrne filed a bill on the day of , in the year , in which the only question presented or decided by the court, was, that the lien of the judgment rendered in the circuit court, was not lost or destroyed by a failure to enrol the judgment of affirmance in the high court. It is true, that the question presented in this suit might have been raised by Byrne, and might have been decided, but it was not raised or decided.

It may also be true, that Byrne would not now be permitted to file a bill as*complainant, and set up as ground of relief in it, any matter which he could have urged in the first action; but being a defendant in this suit, and the attempt being made to deprive him of the possession of the property, we think he has a right, in defence of his possession, to insist upon any point that has not been adjudicated between the parties. Entertaining these views, we are of opinion that the decree of the vice-chancellor should be affirmed.