Editor’s Notes —

Laws of 2005, 5th Ex Sess, ch. 8, § 1, effective October 6, 2005, provides as follows:

“SECTION 1. (1) As a result of the catastrophic impact of Hurricane Katrina, the statute of limitations applicable to any action not filed in any state or federal court or administrative forum as of August 29, 2005, for which venue was proper in a county located in the Second (Southern) Supreme Court District as defined by Section 9-3-1, Mississippi Code of 1972, is extended as follows:

“(a) If the statute of limitations expired on or after Monday, August 29, 2005, but before the effective date of this act, then the time for filing a claim shall be extended to Friday, December 30, 2005.

“(b) If the statute of limitations expires on or after the effective date of this act, but before Tuesday, November 29, 2005, then the time for filing a claim shall be extended to Friday, December 30, 2005.

“(2) For any action not filed in any state or federal court or administrative forum as of August 29, 2005, in which venue was proper only in a county located in either the First (Central) or Third (Northern) Supreme Court Districts as defined by Section 9-3-1, Mississippi Code of 1972, the plaintiff may file a motion asserting that, but for the catastrophic effects of Hurricane Katrina, the action would have been timely filed. If the court or administrative hearing officer grants the motion, the statute of limitations applicable to that action is extended as follows:

“(a) If the statute of limitations expired on or after Monday, August 29, 2005, but before the effective date of this act, then the time for filing a claim shall be extended to Friday, December 30, 2005.

“(b) If the statute of limitations expires on or after the effective date of this act, but before Tuesday, November 29, 2005, then the time for filing a claim shall be extended to Friday, December 30, 2005.

“(3) For purposes of the motion referred to in subsection (2), the plaintiff shall have the burden of proof.”

Cross References —

Actions to recover confiscated property, see §25-1-51.

Actions by State Tax Commission, see §27-3-41.

Actions by state to recover gasoline taxes, see §27-55-37.

Actions to recover taxes on motor fuels other than gasoline, see §27-55-545.

Actions to recover taxes on lubricating oils, see §27-57-25.

Actions to recover taxes on liquified compressed gasses, see §27-59-25.

Action on sales contracts, see §75-2-725.

Effect of bank’s customer to discover and report forgery or alteration of item, see §75-4-406.

Actions for violations of the business tender offer law, see §75-72-119.

Suits to annul marriages, see §93-7-3.

Suit for trespass, see §95-5-29.

Proceeding for relief under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-5.

JUDICIAL DECISIONS

1. In general.

Pursuant to Miss. Code Ann. §11-46-11 of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to 11-46-23, and Miss. Code Ann. §15-1-1, Miss. Code Ann. §15-1-69 did not apply to the MTCA, and it is worth noting that non-tort claims act cases are not controlling as to the applicability of §15-1-69, and because the MTCA has a one-year statute of limitation that is significantly shorter than the catchall three-year statute of limitation, the one-year statute of limitation found in Miss. Code Ann. §11-46-11 is controlling; thus, the court rejected the parents’ claim that Miss. Code Ann. § 15-1-69 applied to the MTCA to toll the statute of limitations under Miss. Code Ann. §11-46-11. Stockstill v. State, 854 So. 2d 1017, 2003 Miss. LEXIS 449 (Miss. 2003).

In view of the provisions of this section [Code 1942, § 723] as contained in Code 1906, § 3126, § 3127 [Code 1942, § 724] does not repeal or nullify the statutory provision forbidding any stipulation or condition in an insurance contract limiting the time within which a suit may be commenced to less than one year after loss or injury. Taylor v. Farmers' Fire Ins. Co., 101 Miss. 480, 58 So. 353, 1911 Miss. LEXIS 160 (Miss. 1911).

RESEARCH REFERENCES

ALR.

Inclusion or exclusion of first and last day for purposes of statute of limitations. 20 A.L.R.2d 1249.

What statute of limitation applies to action for surplus of proceeds from sale of collateral. 59 A.L.R.3d 1205.

When statute of limitations begins to run against action based on unwritten promise to pay money where there is no condition or definite time for repayment. 14 A.L.R.4th 1385.

What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time. 32 A.L.R.4th 840.

Time limits for salvage suits under 46 USCS § 730. 56 A.L.R. Fed. 542.

Amendment Notes —

The 2005 amendment added (2).

Cross References —

Revival of remedies barred by lapse of time or statutes of limitation, see Miss. Const. Art. 4, § 97.

Barring of equity remedy on mortgage where remedy at law to recover debt is barred, see §15-1-21.

Effect of action being barred in another jurisdiction, see §15-1-65.

Limitation of setoff, see §15-1-71.

Requirement that new promise be in writing, see §15-1-73.

Application of statute of limitations in cases of joint interests, see §15-1-75.

Apparent barring of lien on real or personal property, see §89-5-19.

JUDICIAL DECISIONS

1. In general.

2. Extinguishment, effect of.

3. New promise.

4. Actions on mortgages and deeds of trust.

1. In general.

Prenuptial agreements were enforced by the State but the agreement had to be in writing; however, although the oral agreement between the husband and wife could not be enforced as a valid prenuptial agreement, it was not entirely meaningless as, whether intentionally or unintentionally fraudulent, it had to be considered by the chancellor when determining the equities of the case. Hankins v. Hankins, 866 So. 2d 508, 2004 Miss. App. LEXIS 125 (Miss. Ct. App. 2004).

Loans that were the subject of the individuals’ complaint were all made in or before 1994, and yet the individuals filed suit on February 2, 2002, well over three years after the date of the last loan to any of the individuals, in violation of Miss. Code Ann. §15-1-3. The individuals’ causes of action did not survive because the individuals failed to identify any fraudulent concealment by a bank employee which, had it occurred and been proven, could have defeated the time bar, pursuant to Miss. Code Ann. §15-1-67. Stacher v. Am. Gen. Fin., Inc., 2003 U.S. Dist. LEXIS 18713 (S.D. Miss. Mar. 7, 2003).

The 2-year statute of limitations set forth in §15-1-36, rather than the general 6-year limitation period of §15-1-49, applied to a medical malpractice action against a nurse and a company that supplied nursing personnel, where the company’s sole basis for liability was the fact that it was the nurse’s employer; since §15-1-36 specifically names nurses among those covered and the company’s liability was predicated solely upon the doctrine of respondeat superior, the bar of the suit against the nurse likewise barred the action as to the company. Under §15-1-3, §15-1-36 barred both the right of action against the nurse and the company and also barred any remedy against both parties. Lowery v. Statewide Healthcare Service, Inc., 585 So. 2d 778, 1991 Miss. LEXIS 651 (Miss. 1991).

The doctrine of forum non conveniens will never be applied to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he or she will waive the statute of limitations defense. Shewbrooks v. A.C. & S., Inc., 529 So. 2d 557, 1988 Miss. LEXIS 242 (Miss. 1988).

A garnishee which failed to file an answer to a writ of garnishment as required by §11-35-25 and instead paid $10 per week of the judgment debtor’s salary directly to the attorney for the judgment holder was liable to the debtor for monies wrongfully withheld after expiration of the judgment where, although the judgment and execution thereon had expired after seven years as provided in §§15-1-3,15-1-43 and although the judgment holder had failed to file another suit on the judgment prior to the expiration of the seven years as required by §15-1-47 to extend the judgment lien, the garnishee continued to pay the $10 per week to the judgment holder for two years after the judgment had lapsed. Anderson-Tully Co. v. Brown, 383 So. 2d 1389, 1980 Miss. LEXIS 2023 (Miss. 1980).

Where the assignment of a life insurance policy, as security for an indebtedness on the part of the insured to the assignee, stated that the assignment was to secure such indebtedness as might exist at the time of a settlement under the policy under Code 1942, § 743, which barred the right as well as the remedy, there was no indebtedness existing at the time of the insured’s death, the debt being was barred by the statute of limitations, and the assignee had no right to any of the policy proceeds. Hawkins v. Southern Pipe & Supply Co., 259 So. 2d 696, 1972 Miss. LEXIS 1542 (Miss. 1972).

When secured debt is barred both the right and remedy are extinguished. McDaniel v. Short, 127 Miss. 520, 90 So. 186, 1921 Miss. LEXIS 254 (Miss. 1921).

The limitation pertaining to actions against executors and administrators may be invoked in an insolvency proceeding before the chancellor involving an insolvent estate, especially in view of the provisions of this section [Code 1942, § 743] declaring that when the remedy is barred the right also is barred. Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958, 1918 Miss. LEXIS 158 (Miss. 1918).

The effect of the statute is not only to deny the remedy and bar the action, but to extinguish the right itself upon the completion of the period of limitation. Proctor v. Hart, 72 Miss. 288, 16 So. 595, 1894 Miss. LEXIS 103 (Miss. 1894).

2. Extinguishment, effect of.

Trial court did not err in ruling that a purchaser’s garnishment action against a seller was time-barred because it was filed months after the statute had run, and the purchaser failed to take advantage of the many procedural mechanisms available to him to extend the life of his judgment; thus, the judgment had been extinguished, and the purchaser could not bring a valid garnishment action. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

Substitution of a son as the party in a wrongful death case was improper because a patient’s brother lacked standing to bring the action originally; by the time the son filed an amended complaint, the limitations period in Miss. Code Ann. §11-7-13 had expired, and the complaint did not relate back to a nullity, and therefore dismissal was warranted. Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989, 2007 Miss. App. LEXIS 467 (Miss. Ct. App. 2007).

In an action by a debtor against a bank to cancel the principal and interest in a promissory note and a deed of trust securing the note, the trial court properly considered a defunct judgment which had been obtained by the bank against the debtor and her husband in determining the debtor’s liability to the bank where the defunct judgment was a sufficient basis to form the consideration for a component part of a new obligation entered into by the debtor; however, the trial court erred in computing the amount of consideration to include interest on the principal of the judgment debt beyond the seven years after the rendition of the judgment as provided in §15-1-43. Under the provisions of §75-17-7 interest should have been charged at the rate of eight percent per year for seven years to determine the amount of the former legal obligation where the note leading to the earlier judgment had provided for interest of eight percent per year. Keller v. Citizens Bank, Columbia, Miss., 399 So. 2d 1332, 1981 Miss. LEXIS 2008 (Miss. 1981).

Where a deed conveyed a depot site to a railroad company and contained a covenant running with the land that a public roadway should be kept open to the depot grounds for public convenience at and around the station, and the railroad failed for a period of more than 40 years to maintain a station on the conveyed property, the covenant was barred by the statute of limitations. White v. Mississippi Power & Light Co., 196 So. 2d 343, 1967 Miss. LEXIS 1483 (Miss. 1967).

Three-year statute barring open accounts destroys right as well as remedy; debt of child to father, barred by statute before his death, cannot be set off against child’s share in estate; where only remedy is barred by statute of limitations, and debt is unaffected, debt of child to father, although barred by limitations, may be set off against child’s share in father’s estate. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

Wholly distinct cause of action cannot be set up in amended bill where bar of limitations has become complete between filing of original and amended bill. Cox v. American Freehold & Land Mortg. Co., 88 Miss. 88, 40 So. 739, 1906 Miss. LEXIS 130 (Miss. 1906).

Under this section [Code 1942, § 743], a claim against a municipality, barred by limitation, ceases to be a debt, notwithstanding the provision of the statute that the former legal obligation shall be a sufficient consideration to uphold a new promise. It is the duty of municipal authorities to avail of the statute as a defense to demands on the municipal treasury. Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84, 1903 Miss. LEXIS 137 (Miss. 1903).

The allowance by municipal authorities of a demand barred by limitation is without consideration, and ultra vires, and mandamus will not lie to enforce the issuance of a warrant or to complete an imperfect one on such an allowance. Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84, 1903 Miss. LEXIS 137 (Miss. 1903).

Where a note for rent in which a vendor’s lien is reserved is barred, giving a new note does not renew the lien or create a new one, but merely amounts to a new contract, with personal liability only. Proctor v. Hart, 72 Miss. 288, 16 So. 595, 1894 Miss. LEXIS 103 (Miss. 1894).

3. New promise.

An agreement indorsed on the back of a promissory note payable in full on a certain date, and signed by the maker, by the terms of which the maker agreed to pay the obligation in monthly instalments until the whole obligation plus interest had been paid, converted the note into an instalment note, and the statute of limitations began to run as to each instalment from the time it fell due. Freeman v. Truitt, 238 Miss. 623, 119 So. 2d 765, 1960 Miss. LEXIS 447 (Miss. 1960).

Where a second deed was executed to correct a former warranty deed for a recited consideration in the same amount as that recited in the first deed, and such consideration so recited in the second deed was unpaid, the six-year statute against action on the warranty began to run from the date on which the second deed was made, the second deed being a new promise of warranty based upon a former valid consideration. Wade v. Barlow, 99 Miss. 33, 54 So. 662, 1910 Miss. LEXIS 10 (Miss. 1910).

4. Actions on mortgages and deeds of trust.

Statement of claim in a probate proceeding was timely filed because the stay entered by a federal circuit court, prohibiting the creditor from foreclosing on the encumbered property pending the appeal, began the tolling of the filing period as to the promissory note. Therefore, the underlying claim was not extinguished. Avakian v. Wilmington Trust N.A. (In re Estate of Avakian), 231 So.3d 208, 2017 Miss. App. LEXIS 201 (Miss. Ct. App.), cert. denied, 229 So.3d 122, 2017 Miss. LEXIS 492 (Miss. 2017).

The running of limitation extinguishes both the note and the deed of trust securing it. Temples v. First Nat'l Bank, 239 Miss. 446, 123 So. 2d 852, 1960 Miss. LEXIS 305 (Miss. 1960).

The execution of a renewal note after the statute of limitations has run does not operate to revive a deed of trust securing it. Temples v. First Nat'l Bank, 239 Miss. 446, 123 So. 2d 852, 1960 Miss. LEXIS 305 (Miss. 1960).

In deciding whether the landowner is estopped to plead or obtain the benefit of the statute of limitations as a defense to an action to foreclose a deed of trust the question is resolved by the conduct of the landowner rather than the conduct of the grantee of deed of trust. Payne v. Smith, 221 Miss. 138, 72 So. 2d 234, 1954 Miss. LEXIS 522 (Miss. 1954).

Where grantee of a trust deed which was given as security for a debt, purchased at a foreclosure sale but never was in possession of the land, the grantee could not invoke the rule that a mortgagee in possession under void foreclosure sale may retain possession until the mortgage is paid despite the fact that the statute of limitations has run against the debt. Payne v. Smith, 221 Miss. 138, 72 So. 2d 234, 1954 Miss. LEXIS 522 (Miss. 1954).

Where in 1931 a deed of trust on certain land was issued to a bank as security for a loan, and later that land was sold at a tax sale and not redeemed, in 1939 the bank’s remedy at law to recover the debt was barred by statute of limitations and direct remedy in equity was likewise barred. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

Section 722, Code of 1942, providing for six-year limitation period when no other period is prescribed, § 719, Code of 1942, barring action on mortgage when debt it secures is barred, and this section [Code 1942, § 743], operate to extinguish on September 1, 1935, deed of trust given to secure note falling due on September 1, 1929, and, in absence of renewal, or institution of foreclosure proceedings, power of sale and all other rights conferred by deed of trust are utterly destroyed on that date. Perkins v. White, 208 Miss. 157, 43 So. 2d 897, 1950 Miss. LEXIS 237 (Miss. 1950).

Statute covers “proceeding” to foreclose trust deed by exercise of power of sale contained in deed. Gates v. Chandler, 174 Miss. 815, 165 So. 442, 1936 Miss. LEXIS 210 (Miss. 1936).

Where neither notes nor mortgage were renewed until notes were barred, rights and remedies as to both notes and mortgage were barred and could not be revived. Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933).

Where senior mortgage barred, junior mortgagee and claimant under him were not bound to know facts not of record, nor estopped to claim priority and set up that attempted revival of senior mortgage was void. Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933).

RESEARCH REFERENCES

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 21, 191.

17 Am. Jur. Pl & Pr Forms (Rev), Limitation of Actions, Form 11.1 (reply – allegation – statute of limitations invalid as violating right to due process).

CJS.

54 C.J.S., Limitations of Actions § 16.

JUDICIAL DECISIONS

1. Contracts with carriers.

2. Contracts with telegraph companies.

3. Insurance contracts.

4. —Time for bringing suit.

5. —Requirement of notice.

6. —Contracts made or to be performed in other states.

7. Home inspection contracts.

8. Miscellaneous.

1. Contracts with carriers.

46 USCS § 183b does not preempt Mississippi’s prohibition against contractually shortening limitations periods (§15-1-5); thus, a 6-month time-to-sue provision in passengers’ tickets was invalid. Johnson v. Commodore Cruise Lines, 897 F. Supp. 740, 1995 U.S. Dist. LEXIS 10424 (S.D.N.Y. 1995).

Stipulation in bill of lading for shipment of oxen that claim for loss must be verified and presented within 10 days, is invalid. Illinois C. R. Co. v. Jordan, 108 Miss. 140, 66 So. 406, 1914 Miss. LEXIS 180 (Miss. 1914).

Time limit in shipping contract against suit for loss of goods must be reasonable and carrier must promptly deny liability. Lasky v. Southern Express Co., 92 Miss. 268, 45 So. 869, 1908 Miss. LEXIS 187 (Miss. 1908).

2. Contracts with telegraph companies.

Stipulation in contract with telegraph company exempting it from liability for errors or delays unless claim presented in writing within 60 days after message filed for transmission, is invalid. Dodson v. Western Union Tel. Co., 97 Miss. 104, 52 So. 693, 1910 Miss. LEXIS 263 (Miss. 1910).

3. Insurance contracts.

This section [Code 1942, § 724] does not make insurance clause providing for disability benefits on proof of disability furnished company before anniversary date of policy nearest insured’s attained age of sixty years invalid as changing by contract statute of limitations since this clause of contract prescribes condition upon which liability may arise and does not prescribe a time when suit may be brought after liability accrues. Cox v. Lamar Life Ins. Co., 208 Miss. 146, 43 So. 2d 884, 1950 Miss. LEXIS 236 (Miss. 1950).

This section [Code 1942, § 724] was not violated by a holding that a cause of action for permanent disability benefits under a group insurance policy did not arise until due proof thereof, as required in the policy for payment of permanent disability benefits, was made. Metropolitan Life Ins. Co. v. Lindsey, 184 Miss. 359, 185 So. 573, 1939 Miss. LEXIS 30 (Miss. 1939).

This section [Code 1942, § 724] has no application to provisions of a life insurance policy for return of premiums. Mutual Life Ins. Co. v. Hebron, 166 Miss. 145, 146 So. 445, 1933 Miss. LEXIS 344 (Miss. 1933).

This section [Code 1942, § 724] has no application to provision of life policy fixing conditions precedent to liability for payment of disability benefits. Mutual Life Ins. Co. v. Hebron, 166 Miss. 145, 146 So. 445, 1933 Miss. LEXIS 344 (Miss. 1933).

This section [Code 1942, § 724] did not prevent life insurer from making proof of disability of condition precedent to waiver of premiums. Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445, 145 So. 887, 1932 Miss. LEXIS 272 (Miss. 1932).

4. —Time for bringing suit.

Arbitration agreement was not invalid merely because it attempted to shorten the limitation period provided in Miss. Code Ann. §15-1-5; the court could have striken that portion of the agreement and the remainder of the arbitration provision would have remained valid. Russell v. Performance Toyota, Inc., 826 So. 2d 719, 2002 Miss. LEXIS 288 (Miss. 2002).

The provisions of a fidelity bond to the effect that the action thereon must be commenced within one year from the date when the insured discovers a loss are violative of this section [Code 1942, § 724] and null and void. Latham v. United States Fidelity & Guaranty Co., 267 So. 2d 895, 1972 Miss. LEXIS 1431 (Miss. 1972).

Provision in fidelity bond limiting liability to losses discovered within certain period held not invalid as changing statutory limitation period for bringing suit. Webster v. United States Fidelity & Guaranty Co., 169 Miss. 472, 153 So. 159, 1934 Miss. LEXIS 54 (Miss. 1934).

Stipulation that suit on policy must be brought within 12 months after loss held void. Stuyvesant Ins. Co. v. A. C. Smith Motor Sales Co., 135 Miss. 585, 99 So. 575, 1924 Miss. LEXIS 21 (Miss. 1924).

Provision in new constitution of insurance company limiting time for suit held void. Sovereign Camp, W. O. W. v. Miller, 125 Miss. 502, 87 So. 892, 1921 Miss. LEXIS 132 (Miss. 1921).

This section [Code 1942, § 724] does not repeal or nullify Code 1906 § 2575 forbidding any stipulation in an insurance contract limiting the time within which a suit may be commenced to less than one year after loss or injury, in view of Code 1906, § 3126 [Code 1942, § 723]. Taylor v. Farmers' Fire Ins. Co., 101 Miss. 480, 58 So. 353, 1911 Miss. LEXIS 160 (Miss. 1911).

5. —Requirement of notice.

An insurer which issued a medical malpractice policy to certain doctors on a “claims made basis” was not liable to an injured patient who had not, as required by the policy, made a timely claim against the doctor where such policy limitations were valid conditions precedent to the insurer’s liability and were not impermissible attempts to shorten the applicable six-year statute of limitations. Brander v. Nabors, 443 F. Supp. 764, 1978 U.S. Dist. LEXIS 20195 (N.D. Miss.), aff'd, 579 F.2d 888, 1978 U.S. App. LEXIS 9234 (5th Cir. 1978).

Provisions of physician’s liability policy requiring physician to give notice of claim for malpractice, to forward to insurer process served on physician, and to co-operate with insurer held not violative of statute prohibiting contractual changes in statutory periods of limitation, since provisions related to conditions precedent to liability on policy. Aetna Life Ins. Co. v. Walley, 174 Miss. 365, 164 So. 16, 1935 Miss. LEXIS 58 (Miss. 1935).

Under this statute [Code 1930, § 2294] accident policy provision requiring written notice within twenty days after accident held void. National Casualty Co. v. Mitchell, 162 Miss. 197, 138 So. 808, 1932 Miss. LEXIS 113 (Miss. 1932).

Provision in accident policy requiring written notice to insurer within 15 days after accident, is void. Standard Acc. Ins. Co. v. Broom, 111 Miss. 409, 71 So. 653, 1916 Miss. LEXIS 311 (Miss. 1916).

6. —Contracts made or to be performed in other states.

Where on former appeals, terminating in a decision by the Federal Supreme Court, the point raised by demurrer to insurer’s plea involved the question whether a provision in a fidelity bond requiring any claim thereunder to be made within 15 months after the termination of the suretyship was subject to the law of Tennessee where the contract was made at a time when the insured was then located in Tennessee, or subject to the laws of Mississippi, to which insured had removed and where the defalcation occurred, and resulted in a determination that the laws of Tennessee governed, such determination did not preclude subsequent litigation as to the effect of such provision under Tennessee decisions as being a condition precedent to liability of the insurer or merely a postponement of the right to sue. Hartford Acci. & Indem. Co. v. Delta & Pine Land Co., 189 Miss. 496, 195 So. 667, 1940 Miss. LEXIS 100 (Miss.), cert. denied, 311 U.S. 610, 61 S. Ct. 25, 85 L. Ed. 387 (U.S. 1940).

Group policy which was performable and was delivered in Alabama was governed by Alabama laws, notwithstanding that insured employee was a resident of Mississippi, had never been in Alabama, and insured employer operated its buses only in Mississippi, and notwithstanding statute requiring court to solve interpretation of contract of insurance according to the laws of Mississippi, since a contrary construction would result in the denial of due process. Protective Life Ins. Co. v. Lamarque, 180 Miss. 243, 177 So. 15, 1937 Miss. LEXIS 104 (Miss. 1937).

Appellant was deprived of due process when lower court held that indemnity bond, contracted for in Tennessee, being insurance contract, was solvable under laws of Mississippi in determining liability for loss in Mississippi, as regards construction of provision respecting time for making claim. Hartford Accident & Indem. Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S. Ct. 634, 78 L. Ed. 1178, 1934 U.S. LEXIS 703 (U.S. 1934).

This statute [Code 1930, § 2294] may not constitutionally be applied to employee’s fidelity insurance contract entered into in another state, although the default occurred after the removal of the insured and his employee to the state. Hartford Accident & Indem. Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S. Ct. 634, 78 L. Ed. 1178, 1934 U.S. LEXIS 703 (U.S. 1934).

7. Home inspection contracts.

Home inspector overreached in his attempt to contractually create a private statute of limitations with two home buyers as the three-year statute of limitations under Miss. Code Ann. §15-1-49 could not be changed by contract; the attempt to change the statute of limitations was void under Miss. Code Ann. §15-1-5 and was substantively unconscionable. Pitts v. Watkins, 905 So. 2d 553, 2005 Miss. LEXIS 260 (Miss. 2005).

8. Miscellaneous.

Claim by homeowners against a builder under the New Home Warranty Act (NHWA), Miss. Code Ann. §83-58-1 et seq., was not subject to Miss. Code Ann. §15-1-5 because the NHWA limitations period applied over the more general period in Miss. Code Ann. §15-1-41. Townes v. Rusty Ellis Builder, Inc., 98 So.3d 1046, 2012 Miss. LEXIS 483 (Miss. 2012).

When homeowners and a builder entered into an agreement purportedly tolling limitations periods applicable to the homeowners’ claims against the builder for structural defects in the homeowners’ home, the homeowners’ common-law claims were time-barred because (1) the claims fell under Miss. Code Ann. §15-1-41’s statute of repose, and (2) Miss. Code Ann. §15-1-5 barred contracts to change a limitations period. Townes v. Rusty Ellis Builder, Inc., 98 So.3d 1046, 2012 Miss. LEXIS 483 (Miss. 2012).

In a dispute involving a promissory note, the plain language of the note did not operate to excuse a creditor from asserting legal rights in a timely manner; moreover, Miss. Code Ann. §15-1-5 rendered any changes to the statute of limitations in the promissory note null and void. Chimento v. Fuller, 965 So. 2d 668, 2007 Miss. LEXIS 543 (Miss. 2007).

Mississippi Supreme Court would not enforce a contractually created time limitation on suits, as modifications to the statute of limitations could not be accomplished by contract, and any attempt to do so would be void; accordingly, the admissions contract between the decedent and nursing home which attempted to modify the statute of limitations was properly struck as unconscionable. Covenant Health Rehab of Picayune, L.P. v. Brown, 949 So. 2d 732, 2007 Miss. LEXIS 43 (Miss. 2007), overruled in part, Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds, 14 So.3d 695, 2009 Miss. LEXIS 369 (Miss. 2009).

Provision of contract for extermination of pests which limited homeowner’s remedy for breach of express warranty to reinspection and refumigation in event of reinfestation, was enforceable under Mississippi law. Facts did not fall within protections afforded by §§11-7-18 or75-2-315.1, and litigation not involve claim for breach of implied warranties. Moreover, even if defendant had attempted to limit implied warranties, plaintiff did not seek remedies based thereon. In addition, contract was one primarily for service, whereas prohibition on limitation of express warranties applies only to manufacturer of consumer goods, thus there was nothing in Mississippi statutes forbidding limitation of remedies for breach of express warranty provided in service contract. Smith v. Orkin Exterminating Co., 791 F. Supp. 1137, 1990 U.S. Dist. LEXIS 19936 (S.D. Miss. 1990), aff'd, 943 F.2d 1314, 1991 U.S. App. LEXIS 21363 (5th Cir. Miss. 1991).

Provision in contract for extermination of pets establishing one-year period of limitations, in violation of §15-1-5, did not render contract’s limitation of liability clause unenforceable where clauses were not mutually dependent and allegedly unenforceable clause could be easily severed from remainder of contract without reforming substance of contract. Smith v. Orkin Exterminating Co., 791 F. Supp. 1137, 1990 U.S. Dist. LEXIS 19936 (S.D. Miss. 1990), aff'd, 943 F.2d 1314, 1991 U.S. App. LEXIS 21363 (5th Cir. Miss. 1991).

OPINIONS OF THE ATTORNEY GENERAL

Any attempt to require contract terms seeking to limit the liability of a private vendor or specifying a limitation period different than the general limitations period prescribed for contractual claims would be unenforceable. Thomas, Dec. 2, 2003, A.G. Op. 03-0629.

RESEARCH REFERENCES

ALR.

Validity of contractual waiver of statute of limitations. 1 A.L.R.2d 1445.

Waiver or tolling of statute of limitations by executor or administrator. 8 A.L.R.2d 660.

Validity of contractual time period, shorter than statute of limitations, for bringing action. 6 A.L.R.3d 1197.

Validity of contractual provision establishing period of limitations longer than that provided by state statute of limitations. 84 A.L.R.3d 1172.

Validity, construction, and application, in nonstatutory personal injury actions, of state statute providing for borrowing of statute of limitations of another state. 41 A.L.R.4th 1025.

Insurer’s waiver of defense of statute of limitations. 104 A.L.R.5th 331.

Am. Jur.

51 Am. Jur. 2d, Limitations of Actions §§ 79 et seq.

7 Am. Jur. Pl & Pr Forms (Rev), Contracts, Form 13.1 (answer – defense – statute of limitations).

12 Am. Jur. Legal Forms 2d, Limitation of Actions § 167:10 (statutory limitation period to govern should contractual period be prohibited).

Cross References —

Legislature’s power to revive barred actions, see Miss. Const. Art. 4, § 97.

Running of statutes of limitation against state or subdivision thereof, see Miss. Const. Art. 4, § 104.

Confirmation of title to land and removal of clouds upon titles, see §§11-17-29,11-17-31.

Ejectment, see §§11-19-1 through11-19-105.

Statute of limitations in cases of unlawful entry and detainer, see §11-25-1.

Limitation of actions arising from easements for highway purposes, see §65-1-49.

Conveyance of land generally, see §§89-1-1 through89-1-45.

JUDICIAL DECISIONS

1. In general.

2. Application.

3. Equitable actions.

4. Adverse possession.

5. —Duration of possession.

6. —Tacking.

7. Color of title.

8. Interests acquired; easements.

9. Persons affected in general.

10. —Remaindermen.

11. —Persons under disability.

12. Mortgages and deeds of trust.

13. When limitation period runs, generally.

14. —Particular cases.

15. Pleading.

1. In general.

Since accrued royalties were personal property and not an interest in land, Miss. Code Ann. §15-1-7 was inapplicable; there being no specific statute of limitations for actions seeking recovery of accrued royalties, the general, three-year statute of Miss. Code Ann. §15-1-49(1) required the trustee to bring the action against the oil companies within three years next after the cause of such action accrued. Nygaard v. Getty Oil Co., 918 So. 2d 1237, 2005 Miss. LEXIS 422 (Miss. 2005).

Statute of limitations argument was waived on appeal because it was not raised in the answer; the bank customers’ possession of the property was never adverse to that of the bank’s lien interest at any time prior to the 1997 renewal, and the bank did not seek reformation of the 1988 deed of trust, but rather the 1997 deed of trust, such that there would be no statute of limitations issue even if the defense had been raised. Whitefoot v. BancorpSouth Bank, 856 So. 2d 639, 2003 Miss. App. LEXIS 591 (Miss. Ct. App. 2003), cert. denied, 866 So. 2d 473, 2004 Miss. LEXIS 206 (Miss. 2004), cert. denied, 543 U.S. 833, 125 S. Ct. 148, 160 L. Ed. 2d 52, 2004 U.S. LEXIS 5851 (U.S. 2004).

Ten-year statute of limitation for actions to recover land did not start to run when the beneficiary took possession of the elderly widow’s property in 1982 as part of his long-term plan and scheme to obtain her property through fraud and undue influence, but instead began to run when the elderly widow’s heirs had notice of the existence of an attempted deed, which did not occur until 1997 when the widow died, especially since the widow was not in possession in the interim. Cupit v. Pluskat (In re Estate of Reid), 2001 Miss. LEXIS 320 (Miss. Dec. 13, 2001).

The 10-year limitation provided for in the statute did not apply to an action by a judgment creditor in which it alleged that the judgment debtor fraudulently conveyed real property to his son as the judgment creditor had no possessory interest in the subject property. O'Neal Steel, Inc. v. Millette, 797 So. 2d 869, 2001 Miss. LEXIS 31 (Miss. 2001).

Miss. Code Annotated §15-1-59 does not place maximum durational limit on savings provision of §15-1-7, as had Mississippi Legislature intended for savings clause in §15-1-7 to have maximum duration it would have included such limit in § 15-1-7, as Legislature has in other statutes of limitations provisions, and further, §15-1-59 is not statute of limitations. Talbert v. Henderson, 688 F. Supp. 250, 1987 U.S. Dist. LEXIS 13869 (S.D. Miss. 1987).

In an action to quiet title based on a 1934 deed, the statute of limitations was properly invoked in defense to a cross-bill seeking to cancel the claim for failure of consideration because the conveyance was at most voidable and actions to set aside voidable conveyances are subject to limitation. Covington v. Butler, 242 So. 2d 444, 1970 Miss. LEXIS 1381 (Miss. 1970).

A conveyance of land executed to a corporation in violation of the Mississippi Blue Sky Law (Laws 1916, Ch 97) was utterly void and imparted no notice to subsequent purchasers, nor did it set in motion the running of the 10-year statute of limitations. Mississippi State Highway Com. v. Smith, 197 So. 2d 212, 1967 Miss. LEXIS 1503 (Miss. 1967).

This section [Code 1942, § 709] and Code 1942, § 710 are to be considered together. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

The statute requiring commencement of action to recover land ten years after right to do so accrues, did not apply to a suit to cancel as cloud on title claim asserted by husband who pleaded guilty to manslaughter in the death of his wife. Henry v. Toney, 217 Miss. 716, 64 So. 2d 904, 1953 Miss. LEXIS 484 (Miss. 1953).

Purpose and intent of Code 1942, §§ 710 and 711, and this section [Code 1942, § 709], is to guarantee good title to one purchasing land in good faith from another, where such other went into possession under recorded deed, valid on its face, and continued in uninterrupted possession for period of 31 years or more. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

Save as to easements, licenses or mere equities, abandonment is not effective to divest title to real estate, and fee simple titles are lost only by estoppel or by adverse possession or by maintainable tax sale. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

The principle upon which the statute rests is not that the party in whose favor it is evoked has set up an adverse claim for the period prescribed, but that the adverse claim is accompanied by such an invasion of the rights of the opposite party as to give him a cause of action. Magee v. Magee, 37 Miss. 138, 1859 Miss. LEXIS 10 (Miss. 1859).

2. Application.

Statute of limitations did not bar a brother’s suit seeking to set aside a deed to the family farm from their mother to a revocable trust on the ground of undue influence because the applicable statute of limitations was ten years for actions to recover land. Hodnett v. Hodnett, 269 So.3d 317, 2018 Miss. App. LEXIS 189 (Miss. Ct. App.), cert. denied, 258 So.3d 287, 2018 Miss. LEXIS 527 (Miss. 2018).

Chancery court erred in dismissing an administrator’s complaint against the decedent’s sister and her transferees as untimely because the chancellor applied the wrong statute of limitations and the administrator, as both administrator and individually as a possible heir of the decedent, sought possession of the real property deeded away by the decedent, allegedly due to undue influence, which in a similar situation, the state supreme court held that the 10-year statute of limitations for actions to recover land applied. Bryant v. Dent, 270 So.3d 976, 2018 Miss. App. LEXIS 453 (Miss. Ct. App. 2018).

Mortgagor’s wrongful foreclosure claim was time-barred under Miss. Code Ann. §15-1-49 as it was filed 10 years after the foreclosure; Miss. Code Ann. §15-1-7 applied to actions to recover land, not to actions for wrongful. foreclosure. Tenn. Props. Inc. v. Gillentine, 66 So.3d 695, 2011 Miss. App. LEXIS 329 (Miss. Ct. App. 2011).

Chancellor did not err in dismissing a nephew’s case against his uncles on the ground that his claim was time-barred pursuant to Miss. Code Ann. §91-7-309 because the ten-year statute of limitations contained in Miss. Code Ann. §15-1-7 did not apply because the case was not an action to recover land; the nephew’s claim was an attempt to reopen a decedent’s estate because his arguments were an attempt to attack and falsify the final accounting of the decedent’s estate. Walton v. Walton, 52 So.3d 468, 2011 Miss. App. LEXIS 32 (Miss. Ct. App. 2011).

Summary judgment was properly granted to a trustee in a prior owner’s action to set aside a warranty deed transfer and a trust six years later because the three-year statute of limitations in Miss. Code Ann. §15-1-49 applied, rather than the ten-year period in Miss. Code Ann. §15-1-7. Concealed fraud did not toll the limitations period since the instrument here was recorded as a matter of public record. McWilliams v. McWilliams, 970 So. 2d 200, 2007 Miss. App. LEXIS 779 (Miss. Ct. App. 2007), overruled, Lott v. Saulters, 133 So.3d 794, 2014 Miss. LEXIS 53 (Miss. 2014).

3. Equitable actions.

Bank’s claim for equitable subrogation was barred by the statute of limitations based on the date of payment of the balance of a line of credit, since the bank’s lien did not create a possessory interest in the liened property to support an action to recover land subject to a longer limitations period. U.S. Bank N.A. v. State Bank & Trust Co., 45 F. Supp. 3d 582, 2014 U.S. Dist. LEXIS 95934 (S.D. Miss. 2014).

In an action by a widow to recover 50 percent of various mineral rights purchased by her deceased husband in a joint venture with defendant’s deceased husband in which the theory of recovery was an implied trust or right to a partnership accounting, the chancery court erroneously granted judgment for plaintiff, where the cause of action was barred by the applicable ten year statutes of limitation at least as early as 1962, which was 10 years after the death of defendant’s husband. Stebbins v. Hayes, 379 So. 2d 898, 1980 Miss. LEXIS 1836 (Miss. 1980).

Action by the successors of royalty deed grantor to cancel the claims of the grantees’ successors to any interest in the mineral estate exceeding 3/16ths of 1/8th of the whole of all minerals, except sulphur, was not barred by the statute of limitations where the grantees’ successors had neither title nor possession of any interest in excess of the 3/16ths of the 1/8th of the whole. Payne v. Campbell, 250 Miss. 227, 164 So. 2d 780, 1964 Miss. LEXIS 458 (Miss. 1964).

Suit to cancel quitclaim deed given without consideration, twelve years after death of grantee and after title to mineral rights had passed to innocent purchasers, held barred. Williams v. Phoenix Minerals Corp., 247 Miss. 697, 158 So. 2d 51, 1963 Miss. LEXIS 347 (Miss. 1963).

Where there was a suit to cancel and remove some alleged clouds from the title of property which was sold under a bond mortgage to satisfy an indebtedness owing to a Louisiana corporation, in liquidation, the fact that the suit was filed just two days before the completion of the bar of ten-year statute of limitations, should not bar the action because of laches. Enochs v. Mississippi Tower Bldg., Inc., 210 Miss. 676, 50 So. 2d 551, 1951 Miss. LEXIS 307 (Miss. 1951).

This section [Code 1942, § 709] applies to a bill to set aside a deed and to hold grantee as trustee of the land for benefit of complainants, neither the three-year limitation period of Code 1942, § 729 nor the six-year period of Code 1942, § 722 being applicable when accounting feature contained in bill is merely incidental. Burton v. Gibbes, 204 Miss. 248, 37 So. 2d 285, 1948 Miss. LEXIS 359 (Miss. 1948).

Statutory limitation on equity suit to recover land held not to apply to suit to reform deed by person whose possession and payment of taxes through predecessors in title exceeds forty-five years. Newman v. J. J. White Lumber Co., 162 Miss. 581, 139 So. 838, 1932 Miss. LEXIS 148 (Miss. 1932).

This section [Code 1942, § 709] applies to a suit to cancel, as a cloud, a title acquired through sale under partition proceedings, neither the two-year statute of limitations (§ 2693, Code of 1880), nor Code 1880, § 2568, establishing the effect of a final decree in partition proceedings being applicable. Foster v. Gulf Coast Canning Co., 71 Miss. 624, 15 So. 931, 1893 Miss. LEXIS 131 (Miss. 1893).

4. Adverse possession.

Adverse possession was established by evidence that possessors cleared land and planted grass, grazed cattle on land, repaired damage caused by hurricane, built and repaired fish pond, paid taxes in all but 2 years, frequently visited property, and made other improvements; titleholder’s nonpayment of taxes coupled with awareness that grass was planted and cattle were grazed on pastures gave rise to notice of adverse claim. Ramsey v. Copiah Bank, N.A., 678 So. 2d 637, 1996 Miss. LEXIS 208 (Miss. 1996).

Adverse possession does not operate to vest title while the city holds a tax title to the land. Grayson v. Robinson, 240 Miss. 59, 126 So. 2d 247, 1961 Miss. LEXIS 429 (Miss. 1961).

Insufficiency of a line fence to turn stock does not affect its operation as notice of adverse possession. Grayson v. Robinson, 240 Miss. 59, 126 So. 2d 247, 1961 Miss. LEXIS 429 (Miss. 1961).

This section [Code 1942, § 709] and Code 1942, § 710 are limitation statutes which may be used defensively only, as distinguished from Code 1942, § 711, which provides that 10 years’ adverse possession vests full title, and which accordingly may be used affirmatively and defensively. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

This provision [Code 1942, § 709] does not apply except where the person invoking it has been in adverse possession of land against the true owner. Continental Oil Co. v. Walker, 238 Miss. 21, 117 So. 2d 333, 1960 Miss. LEXIS 371 (Miss. 1960).

Where minerals had been severed from the surface, and defendants, claiming under color of title of a void tax deed, although exercising acts of ownership of which the surface was susceptible, had never taken actual possession of any of the minerals, they did not acquire rights to the minerals by adverse possession, so that plaintiffs, who held mineral rights to the land through inheritance from the grantor of the surface rights, did not lose their rights to the minerals by limitations or laches. White v. Merchants & Planters Bank, 229 Miss. 35, 90 So. 2d 11, 1956 Miss. LEXIS 583 (Miss. 1956).

The statutes of limitation do not begin to run against one in actual or constructive possession of lands until an adverse entry has been made. Leech v. Masonite Corp., 219 Miss. 176, 68 So. 2d 297, 1953 Miss. LEXIS 379 (Miss. 1953).

To acquire land by adverse possession, for possession must not only continue for the statutory period but it must be exclusive and hostile. Grantham v. Masonite Corp., 218 Miss. 745, 67 So. 2d 727, 1953 Miss. LEXIS 599 (Miss. 1953).

To acquire land by adverse possession, the adverse possessor must have had the intention to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right. Grantham v. Masonite Corp., 218 Miss. 745, 67 So. 2d 727, 1953 Miss. LEXIS 599 (Miss. 1953).

When it is clear that there is no intention to claim against the true owner, the possession will not be adverse, and however long continued will not bar his right of entry. Grantham v. Masonite Corp., 218 Miss. 745, 67 So. 2d 727, 1953 Miss. LEXIS 599 (Miss. 1953).

In application of this section [Code 1942, § 709], mere lapse of time does not suffice, but possession relied upon by claimant of land must exist to support plea of limitation the same as if he were claiming land under and by virtue of possession held under Code 1942, § 711. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Complainant entering under invalid tax deed failed to meet burden of proof to establish ten years adverse possession where evidence disclosed that no use was made of the land after tax sale except cultivation of small patches, that land was unimproved, and that there was no actual occupancy of the land by anyone. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Where the description of land sold at a tax sale did not cover all of the land on which the taxes had been levied, a purchaser from the state, who occupied the entire tract had no valid claim, as against the original owners, to that portion of the land not included in such description, and title thereto would not be lost to the original owner through any doctrine of laches short of the ten-year statute of limitations. Johnson v. Carter, 193 Miss. 781, 11 So. 2d 196, 1943 Miss. LEXIS 8 (Miss. 1943).

Title need not be recorded to bind bona fide purchasers from the original owner; purchaser from record owner must ascertain existence of adverse possession hostile thereto. Lowi v. David, 134 Miss. 296, 98 So. 684, 1924 Miss. LEXIS 255 (Miss. 1924).

Defense of adverse possession held sufficient, although occupation was under erroneous survey. Evans v. Harrison, 130 Miss. 157, 93 So. 737, 1922 Miss. LEXIS 194 (Miss. 1922); Schuler v. McGee, 127 Miss. 873, 90 So. 713, 1921 Miss. LEXIS 291 (Miss. 1921); Greer v. Pickett, 127 Miss. 739, 90 So. 449, 1921 Miss. LEXIS 277 (Miss. 1921).

Title by adverse possession is a perfect title and may be used both offensively and defensively. Scottish American Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666, 1910 Miss. LEXIS 14 (Miss. 1910).

Actual, open, and notorious possession may be shown by the acts of the occupant to have been adverse. Davis v. Bowmar, 55 Miss. 671, 1878 Miss. LEXIS 29 (Miss. 1878).

The adverse possession, to be available, must have been continuous. Nixon v. Porter, 38 Miss. 401, 1860 Miss. LEXIS 13 (Miss. 1860); Tegarden v. Carpenter, 36 Miss. 404, 1858 Miss. LEXIS 111 (Miss. 1858).

What constitutes adverse possession is a question of law, but the intention of the possessor, which is always material in determining, is a fact to be ascertained by the jury. Magee v. Magee, 37 Miss. 138, 1859 Miss. LEXIS 10 (Miss. 1859).

Visible and notorious occupation, with intent to claim against the world, constitutes adverse possession. So will any visible acts of ownership exercised over land, which, from their nature, indicate notorious claim of property in it, if continued for a long time, with the knowledge of the owner, and without interruption or adverse entry by him. Neither actual occupation, residence, nor cultivation is necessary to constitute adverse possession, where the property is so situated as not to admit of any permanent useful improvement. Ford v. Wilson, 35 Miss. 490, 1858 Miss. LEXIS 50 (Miss. 1858).

5. —Duration of possession.

Ten years’ possession by purchaser on foreclosure of trust deed and successors held, notwithstanding deed on foreclosure was not given, to give title as against grantor of trust deed. American Petrofina, Inc. v. Warren, 247 Miss. 552, 156 So. 2d 729, 1963 Miss. LEXIS 324 (Miss. 1963).

Evidence showing that complainants entered into possession of parcel of land in 1942, under color of title by virtue of deed executed to them by a bank, and that complainants remained in possession of the land, claiming it as their own, and exercised acts of ownership on the land by cutting timber and pasturing cattle on the land, keeping the fences in state of repair, and paying taxes on the land for a period of 19 years, established complainants’ title by adverse possession. Bickham v. Bates, 246 Miss. 171, 150 So. 2d 138, 1963 Miss. LEXIS 433 (Miss. 1963).

The grantees in a deed and their successors in title who had been in actual adverse possession of the entire interest in tract of land for more than ten years acquired title by adverse possession. Farmer v. Runnels, 244 Miss. 525, 142 So. 2d 198, 1962 Miss. LEXIS 472 (Miss. 1962).

Husband of tenant in common taking possession of land under purchase at a void judicial sale and holding with those under him for 10 years divests cotenants of title. Stewart v. Foxworth, 95 Miss. 442, 52 So. 354, 1909 Miss. LEXIS 311 (Miss. 1909).

Adverse possession for 10 years will defeat suit to set aside occupant’s deed, on record for that length of time, on the ground that it was executed to defeat creditors. Gordon v. Anderson, 90 Miss. 677, 44 So. 67, 1907 Miss. LEXIS 109 (Miss. 1907).

Where one claimed the land involved as sole owner, mortgaged it to another who thereafter foreclosed it, and he and his devisees were in possession adversely for more than ten years, suit of persons claiming under precedent outstanding titles was barred. Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341, 1901 Miss. LEXIS 114 (Miss. 1901).

Adverse possession, though under a parol gift, if it continue for ten years, confers a perfect title. Davis v. Davis, 68 Miss. 478, 10 So. 70, 1891 Miss. LEXIS 52 (Miss. 1891).

6. —Tacking.

Period of adverse possession by remainderpersons could begin running against interests of third parties prior to date outstanding life estate on property was removed; life tenant’s possession was hostile as to third parties and could be tacked on to remainderperson’s interest. Ramsey v. Copiah Bank, N.A., 678 So. 2d 637, 1996 Miss. LEXIS 208 (Miss. 1996).

Where there was privity between appellees and their predecessor in title, appellees are entitled to tack their possession to that of their predecessor and to acquire title by adverse possession to small strip of land between an old fence line and the true boundary line although appellees were not themselves in possession for ten years. Ricketts v. Simmons, 44 So. 2d 537 (Miss. 1950).

It is competent to join one adverse possession to another in order to make the bar effectual, if the possession be continued, uninterrupted, and adverse during the whole period. Benson v. Stewart, 30 Miss. 49, 1855 Miss. LEXIS 61 (Miss. 1855).

7. Color of title.

In an action to establish ownership of, or a leasehold interest in oil, gas and other minerals in certain land, and for cancellation of defendant’s tax deed, plaintiffs were not entitled to relief, even if the buyer at the tax sale had not obtained good title, where the record showed that with the tax sale and subsequent tax deed, all of record, the purchaser had color of title, that she had entered the land personally and by authorized representation, and had occupied the same in the manner described in this section for longer than the requisite ten years. Clement v. R. L. Burns Corp., 373 So. 2d 790, 1979 Miss. LEXIS 2295 (Miss. 1979).

Where minerals had been severed from the surface, and defendants, claiming under color of title of a void tax deed, although exercising acts of ownership of which the surface was susceptible, had never taken actual possession of any of the minerals, they did not acquire rights to the minerals by adverse possession, so that plaintiffs, who held mineral rights to the land through inheritance from the grantor of the surface rights, did not lose their rights to the minerals by limitations or laches. White v. Merchants & Planters Bank, 229 Miss. 35, 90 So. 2d 11, 1956 Miss. LEXIS 583 (Miss. 1956).

Widow’s act in recording deed, valid on its face, to her from purchaser of her deceased husband’s land at foreclosure sale, gave notice to world that she claimed to be owner of land and that act was act of ouster as against anyone else claiming the land, including her six children, whose ages ranged from 1 to 12 years, and warranty deed by her after she had been in uninterrupted possession under this recorded deed for more than 34 years conveyed good title. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

Generally, tax deed gives color of title although it is invalid or even where absolutely void, providing description of the property is legally sufficient. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Statutes of limitation do not run in favor of the holder of the tax deed void on its face. Meyerkort v. Warrington, 19 So. 2d 433 (Miss. 1944).

Void tax deed is good color of title to support adverse possession. Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911).

A void deed is sufficient to constitute color of title. One who enters under color of title and holds adversely may extend his possession to the whole land embraced in his deed. But a mere intruder can extend his possession only to the extent of his actual occupancy. Ryan v. Mississippi V. & S. I. R. Co., 62 Miss. 162, 1884 Miss. LEXIS 40 (Miss. 1884); Welborn v. Anderson, 37 Miss. 155, 1859 Miss. LEXIS 11 (Miss. 1859).

8. Interests acquired; easements.

Grantee of alley easement is barred from obtaining relief against adverse possessor for more than 13 years. Cummins v. Dumas, 147 Miss. 215, 113 So. 332, 1927 Miss. LEXIS 348 (Miss. 1927).

Right, granted in letter, to build house on lot and occupy same so long as it is used for publishing newspaper, where acted upon was assignable, and assignee holding for 10 years acquired an easement. Frederic v. Mayers, 89 Miss. 127, 43 So. 677, 1906 Miss. LEXIS 101 (Miss. 1906).

9. Persons affected in general.

Denial of the mother’s claim of right to the marital home was appropriate because the father’s parents had the legal right to dispossess the father of his enjoyment of the home, and that right would continue for the statutory period of ten years under Miss. Code Ann. §15-1-7; thus, the father’s continued presence at the marital home was not one of right, but a continuing gift to the father by his parents. Jordan v. Jordan, 963 So. 2d 1235, 2007 Miss. App. LEXIS 522 (Miss. Ct. App. 2007).

A mineral deed to homestead which was not signed by the wife of the owner, being void, did not carry with it constructive possession, and therefore the ten-year statute of limitations was inapplicable to an action brought some 31 years after the conveyance to cancel the deed. Furthermore, since their possession of the homestead had not been disturbed or invaded, the husband and wife were not required to take any steps to cancel the deed prior to the institution of the present suit. Travis v. Dantzler, 244 Miss. 360, 141 So. 2d 556, 1962 Miss. LEXIS 455 (Miss. 1962).

Statute held to bar suit to remove, as alleged cloud on title, a deed executed upon a sale for purposes of partition some forty years before, on ground that all parties in interest were not served and that land was not shown therein to be incapable of partition in kind. Hollingsworth v. Central Oil Co., 236 Miss. 779, 112 So. 2d 518, 1959 Miss. LEXIS 376 (Miss. 1959).

Suit by heirs of an incompetent grantor to set aside a deed the recording of which in the grantor’s lifetime was constructive notice to them, is barred by the running of the statutory period since his death. Aultman v. Kelly, 236 Miss. 1, 109 So. 2d 344, 1959 Miss. LEXIS 287 (Miss. 1959).

A son of intestate could not claim title to land by adverse possession against a widow who had not claimed any interest in the property because of mistaken idea of invalidity of her marriage and where the son kept the property under the idea that his stepmother had no interest. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

Ordinarily ignorance of his or her legal rights by a person against whom land is claimed by adverse possession is no defense against the running of the statutes of limitations. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

Possession of land by owner and mortgagor, or his grantees, during life of deed of trust, cannot form basis of claim to adverse possession by him, since mortgagor has right to retain possession of property until foreclosure sale under deed of trust. Duncan v. Mars, 44 So. 2d 529 (Miss. 1950).

Where land was sold under a decree in partition, the possession of the interests of two of the owners, who were not parties to the proceeding, remained in them by constructive operation of law as long as possession was not taken by someone in hostility to their interests, unless divested by or as a result of the partition proceedings, and limitation would not affect them even if they let the land lie unoccupied and idle for fifty years or more. Taylor v. Twiner, 193 Miss. 410, 9 So. 2d 644, 1942 Miss. LEXIS 117 (Miss. 1942).

10. —Remaindermen.

Chancellor properly denied a motion to dismiss filed by a mother and her daughter because the brother’s action to set aside the sister’s deed, remove the cloud on his title, and to quiet title to the disputed property was governed by the 10-year statutes of limitations where the daughter knew about the brother’s deed, the brother was a remainderman who did not yet have the present right to possess the property, and the brother had a present cause of action. Lott v. Saulters, 133 So.3d 794, 2014 Miss. LEXIS 53 (Miss. 2014).

Grantee of life tenant, holding over after life tenant’s death, could not set up hostile claim against remaindermen based simply on possession. Thomasson v. Kinard, 153 Miss. 398, 121 So. 109, 1929 Miss. LEXIS 31 (Miss. 1929).

Grantee of widower’s dower interest in land does not hold adversely to remainderman until widow’s death. Anglin v. Broadnax, 97 Miss. 514, 52 So. 865, 1910 Miss. LEXIS 282 (Miss. 1910).

Tenant in remainder cannot bring suit for partition, nor will ejectment lie until his right of possession accrues. Shipp v. McKee, 80 Miss. 741, 31 So. 197, 1902 Miss. LEXIS 214 (Miss. 1902).

The statute does not run against an action of ejectment by a remainderman until the determination of the particular estate. Hoskins v. Ames, 78 Miss. 986, 29 So. 828, 1901 Miss. LEXIS 144 (Miss. 1901).

Although one is in possession of land, claiming adversely under a void tax deed, his purchase of a life estate therein will render such possession lawful thereafter as against remaindermen and estop the running of the statute as against them. Jones v. Merrill, 69 Miss. 747, 11 So. 23, 1892 Miss. LEXIS 2 (Miss. 1892).

11. —Persons under disability.

Statute of limitations in §15-1-7 applies to action alleging that deed of trust and its foreclosure were invalid because mortgagor was mentally incompetent, where statute contained savings provision in favor of those under disability of infancy or unsoundness of mind; durational limitation of §15-1-59 does not apply to §15-1-7, where § 15-1-7 contains its own savings provision, and where other statutes containing savings provisions in favor of persons under disability provide for maximum duration for savings provisions. Talbert v. Henderson, 688 F. Supp. 250, 1987 U.S. Dist. LEXIS 13869 (S.D. Miss. 1987).

A complaint seeking to set aside a deed is not demurrable as stating a cause of action barred by limitations where it alleges that the deed was obtained by fraud and duress, and while complainant was unable to attend to her affairs, due to mental impairment. McMahon v. McMahon, 243 Miss. 89, 137 So. 2d 520, 1962 Miss. LEXIS 318 (Miss. 1962).

Children, whose ages ranged from 1 to 12 years at time of death of their father, who lived on land during lifetime of father and knew that after his death mother claimed it, who knew mother sold land, and who neither inquired nor discovered their interest in land until youngest child was 47 years of age, exercised such complete indifference to, and disregard of, their rights that they should not, in equity and good conscience, be permitted to prevail over purchaser in good faith, for sufficient consideration. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

Heir 15 years old when interest of dowress ceased on her death in 1893, not barred by 10-year statute from suing for partition in December 1907. Anglin v. Broadnax, 97 Miss. 514, 52 So. 865, 1910 Miss. LEXIS 282 (Miss. 1910).

Infant old enough to deceive person of ordinary prudence and receiving benefit of contract with a party whom he deceived as to his age is estopped to disaffirm the contract where he was guilty of wilful fraud and misrepresentation. Lake v. Perry, 95 Miss. 550, 49 So. 569, 1909 Miss. LEXIS 280 (Miss. 1909).

A grantor may disaffirm a deed executed during infancy and bring suit to recover it at any time within ten years after becoming an adult. Shipp v. McKee, 80 Miss. 741, 31 So. 197, 1902 Miss. LEXIS 214 (Miss. 1902).

12. Mortgages and deeds of trust.

Statute (Laws 1934, ch 250) providing that all mortgagors of real estate located within the state who might have the right to set aside any title to such real estate by reason of the neglect of any trustee to insert in a notice of sale of such real estate, the name of said mortgagor, should commence suit 12 months from the passage of such act, and upon the failure of such mortgagor or other person to commence suit within such time, the right to bring such suit, and the remedy to enforce such right of action should be deemed thereafter to be completely extinguished, if applied so as to restrict the application of the general ten year statute, made applicable by statute (Code 1942, § 888) regulating the sale of lands under mortgages and deeds of trust, was not invalid as being an impairment of contract or as class or private legislation, since the right to sue is distinct from the right sought to be enforced and is remedial in character. Barbour v. Williams, 196 Miss. 409, 17 So. 2d 604, 1944 Miss. LEXIS 207 (Miss. 1944).

Only 10-year statute applies in case of deed of trust on homestead void because wife did not join. Woods v. Campbell, 87 Miss. 782, 40 So. 874, 1905 Miss. LEXIS 219 (Miss. 1905).

13. When limitation period runs, generally.

Limitations do not run against a widow’s right to claim homestead as against the owner of mineral rights conveyed by her husband’s deed, while she remains in undisturbed possession of the land. Biglane v. Rawls, 247 Miss. 226, 153 So. 2d 665, 1963 Miss. LEXIS 295 (Miss. 1963).

This section [Code 1942, § 709] and Code 1942, § 710 do not begin against a person who has good title and actual or constructive possession of lands, until an adverse entry. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

The limitation period begins to run against a right of action to set aside a mineral deed procured by representing it to be only a lease, from the time when it was put on record. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

Filing for record a deed sought to be set aside as fraudulent set the statute of limitations running. Ayers v. Davidson, 285 F.2d 137, 1960 U.S. App. LEXIS 2890 (5th Cir. Miss. 1960).

The statute begins to run against a cause of action for failure to deliver a deed on a certain date, on the day following. Rankin v. Mark, 238 Miss. 858, 120 So. 2d 435, 1960 Miss. LEXIS 473 (Miss. 1960).

An action in the nature of a suit to remove as clouds from title a claim to one-half oil, gas and mineral interest in land was barred where more than 10 years had been permitted to run before the institution of the action. Gandy v. Burke, 236 Miss. 241, 109 So. 2d 926, 1959 Miss. LEXIS 313 (Miss. 1959).

Generally, statutes of limitation begin to run as soon as there is a cause of action. Aultman v. Kelly, 236 Miss. 1, 109 So. 2d 344, 1959 Miss. LEXIS 287 (Miss. 1959).

The statutes of limitation do not begin to run against persons in actual or constructive possession of lands until an adverse entry has been made. Trigg v. Trigg, 233 Miss. 84, 101 So. 2d 507, 1958 Miss. LEXIS 360 (Miss. 1958).

Suit for reconveyance of land based upon purchaser’s agreement to reconvey when purchaser abandoned plant expected to be erected on land must be brought within ten years from date of abandonment of plant so erected, and is barred by limitations when brought after ten-year period. Krohn v. L. N. Dantzler Lumber Co., 208 Miss. 691, 208 Miss. 91, 45 So. 2d 276, 1950 Miss. LEXIS 287 (Miss. 1950).

Right of action against grantee in deed to set aside deed and hold grantee as trustee of land for benefit of complainants accrues at the time the grantee obtains deed to land. Burton v. Gibbes, 204 Miss. 248, 37 So. 2d 285, 1948 Miss. LEXIS 359 (Miss. 1948).

Where the title to land is made to vest in a donee upon the happening of a future event, the statute will not run until the event happens. Millsaps v. Shotwell, 76 Miss. 923, 25 So. 359, 1899 Miss. LEXIS 2 (Miss. 1899).

The statute does not run against the right to enforce a legacy charged upon the estate of the testator as to land held by a transfer from the heir or devisee pending administration and before settlement. Peebles v. Acker, 70 Miss. 356, 12 So. 248, 1892 Miss. LEXIS 110 (Miss. 1892).

Where the right of action was descended from one dying under disability to another resting under disability, ten years only is given from the death of the first person within which the second may sue. Watts v. Gunn, 53 Miss. 502, 1876 Miss. LEXIS 103 (Miss. 1876).

The statute commences to run from the time plaintiff’s cause of action accrued, and not from the date the title vests in him. Shaw v. Alexander, 32 Miss. 229, 1856 Miss. LEXIS 182 (Miss. 1856).

14. —Particular cases.

Statute of limitation did not prohibit the chancery court from ruling on relatives’ action to recover land on the ground that it was fraudulently or mistakenly conveyed to a decedent because their cause of action did not accrue until they became aware of the adverse claim to the land, and the decedent took no action to possess and control any tract of land west of a creek; therefore, the cause of action did not accrue until the decedent’s estate sought to enforce the warranty deed. Estate of Pounds v. Shirley, 235 So.3d 1418, 2017 Miss. App. LEXIS 598 (Miss. Ct. App. 2017).

Where a law student developed a relationship with the deceased, had her adopt him, and then helped her compose a holographic will devising all of her property to him, the statute of limitation did not begin to run against a deed objector until the deceased died. Cupit v. Pluskat (In re Estate of Reid), 825 So. 2d 1, 2002 Miss. LEXIS 182 (Miss. 2002).

In an action to cancel as a cloud on title a sale of property to the state in 1948 for 1947 taxes on minerals, the chancellor properly overruled the state’s demurrer where the demurrer admitted the complainant’s allegation that the 1948 tax sale had been invalid for failure to comply with the predecessor statute of §27-41-59 requiring that the tax collector first offer the property in 40-acre tracts. In addition, where the demurrer admitted the allegation that the state had not been in possession of the property since the tax sale, the chancellor properly overruled the special demurrer that the action was barred by the limitations in §§15-1-7,15-1-9, and15-1-17 since possession is required to start any of the three statutes into operation. Pittman v. Currie, 391 So. 2d 654, 1980 Miss. LEXIS 2182 (Miss. 1980).

In an action to establish title to land that had in 1907 been granted to a railroad with a possibility of reverter if the grantee ever abandoned the depot to be built on the land, the trial court erred in concluding that abandonment had occurred, if at all, not later than 1965, and that the action was thus barred by this section; since the grantee and its successor had been in continuous substantial compliance with the 1907 deed, plaintiffs had no reason to enter the land and this section was never set in motion or waived. Hathorn v. Illinois C. G. R. Co., 374 So. 2d 813, 1979 Miss. LEXIS 2396 (Miss. 1979).

In an action by landowners to cancel certain mineral interest conveyances, the 10-year statutes of limitation on actions at law and in equity to recover lands did not run from the date of the alleged conveyance of the mineral rights where the plaintiffs were in open and full possession of the land at the time of the purported conveyance and where the claimants to the mineral rights never took actual possession of the minerals at issue. Bowen v. Bianchi, 359 So. 2d 758, 1978 Miss. LEXIS 2268 (Miss. 1978).

Where a mineral interest is included in a deed by mutual mistake and the grantee does not claim such interest or intend to own or possess it, the grantee does not have constructive possession, and the statute of limitations in a suit for reformation will not begin to run against the grantor until he has notice of some adverse claim thereto or his possession is disturbed in some manner. Searcy v. Tomlinson Interests, Inc., 358 So. 2d 373, 1978 Miss. LEXIS 2526 (Miss. 1978).

Landowner’s suit to cancel defendant’s mineral deed on grounds of fraud was barred by the 10 year statute of limitations where, after landowner received actual notice of deed, he waited for more than 10 years to file suit. Hood v. Marshall, 326 So. 2d 320, 1976 Miss. LEXIS 1735 (Miss. 1976).

Where a deed conveyed a depot site to a railroad company and contained a covenant running with the land that a public roadway should be kept open to the depot grounds for public convenience at and around the station, and the railroad failed for a period of more than 40 years to maintain a station on the conveyed property, the covenant was barred by the statute of limitations. White v. Mississippi Power & Light Co., 196 So. 2d 343, 1967 Miss. LEXIS 1483 (Miss. 1967).

Where the father remained in possession of land, which he had conveyed by warranty deed to a son in 1937 allegedly as security for an indebtedness, and exercised complete dominion over the land until his death, and thereafter the father’s heirs retained possession of the land and dealt with it as part of the father’s estate until 1951, an action by the heirs in 1956 against the son to establish a resulting trust for the benefit of the heirs was not barred by the statutory limitations imposed by this section [Code 1942, § 709] and §§ 718 and 719 Code of 1942. Trigg v. Trigg, 233 Miss. 84, 101 So. 2d 507, 1958 Miss. LEXIS 360 (Miss. 1958).

Where the landowner had actual knowledge for ten years prior to the commencement of a suit, or by the use of reasonable prudence would have known, that the instrument she executed was a mineral deed rather than a royalty deed, and she could have brought action at any time within the ten-year period and obtained process upon the nonresident defendant, by publication, the landowner’s action was barred by this section [Code 1942, § 709]. King v. Childress, 232 Miss. 766, 100 So. 2d 578, 1958 Miss. LEXIS 327 (Miss. 1958).

Statute of limitations begins to run against vendee’s action to recover purchase money paid under insufficient oral contract for sale of land from date vendor declines to execute agreement, or takes affirmative action equivalent to repudiation of parol contract. Krohn v. L. N. Dantzler Lumber Co., 208 Miss. 691, 208 Miss. 91, 45 So. 2d 276, 1950 Miss. LEXIS 287 (Miss. 1950).

Tax title purchaser claiming ten years’ adverse possession between April 7, 1930, and June 12, 1945, who leased land for oil and gas in 1940, whose claim to land was open and notorious in community, who rented land to various tenants from 1935 to 1948, with exception of period from 1938 to 1943, there being breaks in occupancy of land between tenants who cultivated small patches of open land, and who did not improve land, fence it, or cut timber, failed to show continuous use of land for statutory period required. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

The right to bring suit to establish a resulting trust arising out of the conveyance of land to a third party pursuant to an oral agreement whereby one person was to advance all funds necessary to purchase the land and another was to repay to him half of the amount, each to acquire an undivided one-half interest, with an understanding that the deed would be executed to such third party to be held by her until the loan was repaid, did not accrue until such half of the funds advanced had been repaid. Shepherd v. Johnston, 201 Miss. 99, 28 So. 2d 661, 1947 Miss. LEXIS 374 (Miss. 1947); Traweek v. Kelly, 60 Miss. 652, 1882 Miss. LEXIS 108 (Miss. 1882); Dixon v. Cook, 47 Miss. 220, 1872 Miss. LEXIS 65 (Miss. 1872); Wiggle v. Owen, 45 Miss. 691, 1871 Miss. LEXIS 118 (Miss. 1871).

Ten-year statute against suits to recover land ran against state from November 1, 1857, to January 24, 1877 (see Code 1857, ch. 57 arts. 1, 2, 3, 4 and Code 1871 §§ 2147, 2148, 2149, 2150, and Laws 1877 ch. 49), except when suspended during Civil War between December 31, 1862, and April 2, 1867. Southern Pine Co. v. Pigott, 93 Miss. 281, 47 So. 381, 1908 Miss. LEXIS 127 (Miss. 1908).

15. Pleading.

Where a law student developed a relationship with the deceased, had her adopt him, and then helped her compose a holographic will devising all of her property to him, the statute of limitation did not begin to run against a deed objector until the deceased died. Cupit v. Pluskat (In re Estate of Reid), 825 So. 2d 1, 2002 Miss. LEXIS 182 (Miss. 2002).

In an action regarding a mineral interest deed claimants who had made an adverse entry onto the property could not utilize the statutes of limitations, Code §§15-1-7,15-1-9, against others who had taken constructive possession of the property. Mills v. Damson Oil Corp., 686 F.2d 1096, 1982 U.S. App. LEXIS 25678 (5th Cir. Miss. 1982).

A party who pled the ten-year statute of limitations in §15-1-7 could not thereafter on appeal claim that she had sufficiently raised the general limitation statute of six years set forth in §15-1-49. Estate of Miller v. Miller, 409 So. 2d 715, 1982 Miss. LEXIS 1862 (Miss. 1982).

A complaint seeking to set aside a deed is not demurrable as stating a cause of action barred by limitations where it alleges that the deed was obtained by fraud and duress, and while complainant was unable to attend to her affairs. McMahon v. McMahon, 243 Miss. 89, 137 So. 2d 520, 1962 Miss. LEXIS 318 (Miss. 1962).

Where the complaint in a proceeding to vacate a partition sale and decree thereunder was wholly silent upon the matter of possession, and it was reasonable to infer that the purchasers never went into possession, the defendants, in order to sustain their special demurrers raising the affirmative defense of the ten-year and two-year statutes of limitations, were not entitled to an inference that the purchaser had gone into possession. Taylor v. Twiner, 193 Miss. 410, 9 So. 2d 644, 1942 Miss. LEXIS 117 (Miss. 1942).

Statute of limitations must be specifically pleaded. Yazoo & M. V. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 1912 Miss. LEXIS 28 (Miss.), modified, 102 Miss. 56, 58 So. 834 (Miss. 1912), limited, Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 1920 Miss. LEXIS 97 (Miss. 1920).

Amended declaration not barred by limitation where original filed in time. Yazoo & M. V. R. Co. v. Rivers, 93 Miss. 557, 46 So. 705, 1908 Miss. LEXIS 103 (Miss. 1908).

New parties made defendants in equity by amended bill charging that they claim an interest in the land, cannot plead a statute of limitations not fully run when the suit was begun, if they acquired their interest pending the suit from original defendant. State v. Woodruff, 81 Miss. 456, 33 So. 78, 1902 Miss. LEXIS 155 (Miss. 1902).

Unless the declaration shows the character of defendant’s possession and the length of time he has so occupied the premises, the bar of the statute cannot be raised by demurrer. Tush-Ho-Yo-Tubby v. Barr, 41 Miss. 52, 1866 Miss. LEXIS 5 (Miss. 1866).

RESEARCH REFERENCES

ALR.

When statute of limitation commences to run against damage from overflow of land caused by artificial construction or obstruction. 5 A.L.R.2d 302.

Adverse possession: mortgagee’s possession before foreclosure as barring right of redemption. 7 A.L.R.2d 1131.

Change in party after statute of limitations has run. 8 A.L.R.2d 6.

Title by adverse possession as affected by recording statutes. 9 A.L.R.2d 850.

Inclusion or exclusion of first and last day for purposes of statute of limitations. 20 A.L.R.2d 1249.

Entry or indorsement by creditor on note, bond, or other obligation as evidence of part payment which will toll the statute of limitations. 23 A.L.R.2d 1331.

Statute of limitations applicable to action for encroachment. 24 A.L.R.2d 903.

Estoppel to rely on statute of limitations. 24 A.L.R.2d 1413.

Authority of agent to make payment on behalf of principal, as regards statute of limitations. 31 A.L.R.2d 139.

What statute of limitation applies to an action, based on duress, to recover money or property. 77 A.L.R.2d 821.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period. 79 A.L.R.2d 1080.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction. 6 A.L.R.3d 1043.

Validity of contractual time period, shorter than statute of limitations, for bringing action. 6 A.L.R.3d 1197.

What statute of limitations governs action for malicious use of process or abuse of process, in the absence of an express provision for such tort. 10 A.L.R.3d 533.

When does cause of action accrue, for purposes of statute of limitations, against action based upon encroachment of building or other structure upon land of another. 12 A.L.R.3d 1265.

Period of limitations or laches to be applied under 29 USCS §§ 185, 187, in action for breach of labor contract or damages from unfair labor practice. 19 A.L.R.3d 1034.

Settlement negotiations as estopping reliance on statute of limitations. 39 A.L.R.3d 127.

Agreement of parties as estopping reliance on statute of limitations. 43 A.L.R.3d 756.

Plaintiff’s diligence as affecting his right to have defendant estopped from pleading the statute of limitations. 44 A.L.R.3d 760.

Owner’s surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possessing. 76 A.L.R.3d 1202.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner. 26 A.L.R.4th 68.

When statute of limitations begins to run upon action against attorney for malpractice. 32 A.L.R.4th 260.

What gives rise to right of rescission under state blue sky laws. 52 A.L.R.5th 491.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 111, 195.

17 Am. Jur. Pl & Pr Forms (Rev), Limitation of Actions, Form 61 (allegation of complaint, petition, or declaration that infancy tolled statute); Form 62 (affidavit showing suspension of limitations by infancy); Form 71 (allegation of complaint, petition, or declaration that mental incapacity of person executing deed has tolled statute); Form 169 (instructions to jury as to mental incapacity as tolling statute).

13 Am. Jur. Pl & Pr Forms, Forms 13:434, 13:445-13:447 (proceedings to avoid statute).

4 Am. Jur. Trials, Statutes of Limitation § 24.

CJS.

54 C.J.S., Limitations of Actions §§ 57 et seq., 131 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 111, March 1979.

Cross References —

Venue of actions, see §§11-5-1 et seq.

Suits in chancery courts in regard to land titles, see §§11-17-1 through11-17-37.

Effect of concurrent jurisdiction between chancery courts and courts of common law, see §15-1-77.

JUDICIAL DECISIONS

1. In general.

2. Adverse possession.

3. Persons affected.

4. Laches.

5. Equitable relief.

6. Running of limitations period, generally.

7. —Mineral rights involved.

8. —Particular cases.

9. —Concealed fraud.

10. Pleading.

1. In general.

In an action to quiet title based on a 1934 deed to a one-fourth mineral interest, the statute of limitations was properly invoked in defense to a cross bill seeking to cancel the claim for failure of consideration, for the deed was at most voidable and action to set aside such a deed must be brought within 10 years. Covington v. Butler, 242 So. 2d 444, 1970 Miss. LEXIS 1381 (Miss. 1970).

Code 1942, § 709 and this section [Code 1942, § 710] are to be considered together. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

The statutes of limitation do not begin to run against one in actual or constructive possession of lands until an adverse entry has been made. Leech v. Masonite Corp., 219 Miss. 176, 68 So. 2d 297, 1953 Miss. LEXIS 379 (Miss. 1953).

Purpose and intent of Code 1942, §§ 709 and 711, and this section [Code 1942, § 710], is to guarantee good title to one purchasing land in good faith from another, where such other went into possession under recorded deed, valid on its face, and continued in uninterrupted possession for period of 31 years or more. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

The statute [Code 1930, § 2286] applies to a suit in equity to recover land in possession of the defendant, and not to a suit in equity by a complainant in the possession and enjoyment of the land for the purpose of perfecting his title thereto. Newman v. J. J. White Lumber Co., 162 Miss. 581, 139 So. 838, 1932 Miss. LEXIS 148 (Miss. 1932).

Statutory limitation on equity suit to recover land held not to apply to suit to reform deed by person whose possession and payment of taxes through predecessors in title exceeds forty-five years. Newman v. J. J. White Lumber Co., 162 Miss. 581, 139 So. 838, 1932 Miss. LEXIS 148 (Miss. 1932).

2. Adverse possession.

Residents of Italy, cotenants of real property located in Mississippi, were not given actual notice or the equivalent thereof of claims adverse to theirs by the filing of pleadings and deeds in the chancery clerk’s office. Guiseppe v. Cozzani, 193 So. 2d 549, 1966 Miss. LEXIS 1287 (Miss. 1966).

Evidence showing that complainants entered into possession of parcel of land in 1942, under color of title by virtue of deed executed to them by a bank, and that complainants remained in possession of the land, claiming it as their own, and exercised acts of ownership on the land by cutting timber and pasturing cattle on the land, keeping the fences in state of repair, and paying taxes on the land for a period of 19 years, established complainants’ title by adverse possession. Bickham v. Bates, 246 Miss. 171, 150 So. 2d 138, 1963 Miss. LEXIS 433 (Miss. 1963).

The grantees in a deed and their successors in title who had been in actual adverse possession of the entire interest in tract of land for more than ten years acquired title by adverse possession. Farmer v. Runnels, 244 Miss. 525, 142 So. 2d 198, 1962 Miss. LEXIS 472 (Miss. 1962).

Code 1942, § 709 and this section [Code 1942, § 710] are limitation statutes which may be used defensively only, as distinguished from Code 1942, § 711, which provides that 10 years’ adverse possession vests full title, and which accordingly may be used affirmatively and defensively. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

This provision does not apply except where the person invoking it has been in adverse possession of land against the true owner. Continental Oil Co. v. Walker, 238 Miss. 21, 117 So. 2d 333, 1960 Miss. LEXIS 371 (Miss. 1960).

Widow’s act in recording deed, valid on its face, to her from purchaser of her deceased husband’s land at foreclosure sale, gave notice to world that she claimed to be owner of land and that act was act of ouster as against anyone else claiming the land, including her six children, whose ages ranged from 1 to 12 years, and warranty deed by her after she had been in uninterrupted possession under this recorded deed for more than 34 years conveyed good title. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

Grantee of life tenant could not maintain suit to quiet title to the land involved based on deed from life tenant and adverse possession, since his holding over after death of the life tenant made him a tenant at sufferance of the remaindermen, and was consistent with their title as such; and he could not, as against them, invoke the ten-year statute of limitations so as to defeat their right to possession of, and title to, the land. Thomasson v. Kinard, 153 Miss. 398, 121 So. 109, 1929 Miss. LEXIS 31 (Miss. 1929).

Adverse possession for 10 years will defeat suit to set aside occupant’s deed, on record for that time, on the ground it was executed to defeat creditors. Gordon v. Anderson, 90 Miss. 677, 44 So. 67, 1907 Miss. LEXIS 109 (Miss. 1907).

Where a bill to avoid a foreclosure sale was brought more than ten years after the sale, and after the purchaser had taken notorious and adverse possession, and there was no allegation that complainants were ignorant of any of the proceedings leading up to the sale or of the claim of the purchaser, nor that the alleged fraud in the sale had been concealed or was unknown to them, the cause of action was barred by limitation. Alabama & V. R. Co. v. Thomas, 86 Miss. 27, 38 So. 770, 1905 Miss. LEXIS 81 (Miss. 1905).

3. Persons affected.

Chancellor properly denied a motion to dismiss filed by a mother and her daughter because the brother’s action to set aside the sister’s deed, remove the cloud on his title, and to quiet title to the disputed property was governed by the 10-year statutes of limitations where the daughter knew about the brother’s deed, the brother was a remainderman who did not yet have the present right to possess the property, and the brother had a present cause of action. Lott v. Saulters, 133 So.3d 794, 2014 Miss. LEXIS 53 (Miss. 2014).

Suit to cancel quitclaim deed given without consideration, twelve years after death of grantee and after title to mineral rights had passed to innocent purchasers, held barred. Williams v. Phoenix Minerals Corp., 247 Miss. 697, 158 So. 2d 51, 1963 Miss. LEXIS 347 (Miss. 1963).

A mineral deed to homestead which was not signed by the wife of the owner, being void, did not carry with it constructive possession, and therefore the ten years statute of limitations was inapplicable to an action by the husband and wife to cancel the deed brought some 21 years after the conveyance. Travis v. Dantzler, 244 Miss. 360, 141 So. 2d 556, 1962 Miss. LEXIS 455 (Miss. 1962).

Children, whose ages ranged from 1 to 12 years at time of death of their father, who lived on land during lifetime of father and knew that after his death mother claimed it, who knew mother sold land, and who neither inquired nor discovered their interest in land until youngest child was 47 years of age, exercised such complete indifference to, and disregard of, their rights that they should not, in equity and good conscience, be permitted to prevail over purchaser in good faith, for sufficient consideration. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

Where land was sold under a decree in partition, the possession of the interests of two of the owners, who were not parties to the proceeding, remained in them by constructive operation of law as long as possession was not taken by someone in hostility to their interests, unless divested by or as a result of the partition proceedings, and limitation would not affect them even if they let the land lie unoccupied and idle for fifty years or more. Taylor v. Twiner, 193 Miss. 410, 9 So. 2d 644, 1942 Miss. LEXIS 117 (Miss. 1942).

The statute [Code 1930, § 2286] does not apply to a suit brought by a person in possession of land, and, therefore, person in possession need not bring suit to perfect his title thereto until his title is menaced by the adverse claim of another. Newman v. J. J. White Lumber Co., 162 Miss. 581, 139 So. 838, 1932 Miss. LEXIS 148 (Miss. 1932).

Grantee of life tenant could not maintain suit to quiet title to the land involved based on deed from life tenant and adverse possession, since his holding over after death of the life tenant made him a tenant at sufferance of the remaindermen, and was consistent with their title as such; and he could not as against them invoke the ten-year statute of limitations so as to defeat their right to possession of, and title to, the land. Thomasson v. Kinard, 153 Miss. 398, 121 So. 109, 1929 Miss. LEXIS 31 (Miss. 1929).

4. Laches.

A mineral deed to homestead which was not signed by the wife of the owner, being void, did not carry with it constructive possession, and therefore the ten-year statute of limitations was inapplicable to an action brought some 31 years after the conveyance to cancel the deed. Furthermore, since their possession of the homestead had not been disturbed or invaded, the husband and wife were not required to take any steps to cancel the deed prior to the institution of the present suit. Travis v. Dantzler, 244 Miss. 360, 141 So. 2d 556, 1962 Miss. LEXIS 455 (Miss. 1962).

Where there was a suit to cancel and remove some alleged clouds from the title of property which was sold under a bond mortgage to satisfy an indebtedness owing to a Louisiana corporation, in liquidation, the fact that the suit was filed just two days before the completion of the bar of ten-year statute of limitations, should not bar the action because of laches. Enochs v. Mississippi Tower Bldg., Inc., 210 Miss. 676, 50 So. 2d 551, 1951 Miss. LEXIS 307 (Miss. 1951).

Where the description of land sold at a tax sale did not cover all of the land on which the taxes had been levied, a purchaser from the state, who occupied the entire tract, had no valid claim, as against the original owners, to that portion of the land not included in such description, and title thereto would not be lost to the original owner through any doctrine of laches short of the ten-year statute of limitations. Johnson v. Carter, 193 Miss. 781, 11 So. 2d 196, 1943 Miss. LEXIS 8 (Miss. 1943).

No claim under this statute [Code 1892, § 2731] is barred until the limitation has attached, and laches is no defense if proceedings are instituted within the time. Hill v. Nash, 73 Miss. 849, 19 So. 707, 1896 Miss. LEXIS 202 (Miss. 1896).

5. Equitable relief.

Bank’s claim for equitable subrogation was barred by the statute of limitations based on the date of payment of the balance of a line of credit, since the bank’s lien did not create a possessory interest in the liened property to support an action to recover land subject to a longer limitations period. U.S. Bank N.A. v. State Bank & Trust Co., 45 F. Supp. 3d 582, 2014 U.S. Dist. LEXIS 95934 (S.D. Miss. 2014).

One entering under a contract of conveyance cannot maintain a bill to cancel the claim of his vendor, or his heirs, although they are barred by lapse of time from recovering either the land or the purchase price, unless he offers to pay the balance of the purchase money and interest. Nolan v. Snodgrass, 70 Miss. 794, 12 So. 583, 1893 Miss. LEXIS 9 (Miss. 1893).

6. Running of limitations period, generally.

Chancery court erred in dismissing an administrator’s complaint against the decedent’s sister and her transferees as untimely because the chancellor applied the wrong statute of limitations and the administrator, as both administrator and individually as a possible heir of the decedent, sought possession of the real property deeded away by the decedent, allegedly due to undue influence, which in a similar situation, the state supreme court held that the 10-year statute of limitations for actions to recover land applied. Bryant v. Dent, 270 So.3d 976, 2018 Miss. App. LEXIS 453 (Miss. Ct. App. 2018).

Ten years’ possession by purchaser on foreclosure of trust deed and successors held, notwithstanding deed on foreclosure was not given, to give title as against grantor of trust deed. American Petrofina, Inc. v. Warren, 247 Miss. 552, 156 So. 2d 729, 1963 Miss. LEXIS 324 (Miss. 1963).

Code 1942, § 709 and this section [Code 1942, § 710] do not begin against a person who has good title and actual or constructive possession of lands, until an adverse entry. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

Filing for record a deed sought to be set aside as fraudulent set the statute of limitations to run. Ayers v. Davidson, 285 F.2d 137, 1960 U.S. App. LEXIS 2890 (5th Cir. Miss. 1960).

An action is barred, concealed frauds excepted, in ten years after the right of action accrued, whether defendant has or has not been in the adverse possession of the land. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

7. —Mineral rights involved.

In an action to cancel as a cloud on title a sale of property to the state in 1948 for 1947 taxes on minerals, the chancellor properly overruled the state’s demurrer where the demurrer admitted the complainant’s allegation that the 1948 tax sale had been invalid for failure to comply with the predecessor statute of §27-41-59 requiring that the tax collector first offer the property in 40-acre tracts. In addition, where the demurrer admitted the allegation that the state had not been in possession of the property since the tax sale, the chancellor properly overruled the special demurrer that the action was barred by the limitations in §§15-1-7,15-1-9, and15-1-17 since possession is required to start any of the three statutes into operation. Pittman v. Currie, 391 So. 2d 654, 1980 Miss. LEXIS 2182 (Miss. 1980).

In an action by a widow to recover 50 percent of various mineral rights purchased by her deceased husband in a joint venture with defendant’s deceased husband in which the theory of recovery was an implied trust or right to a partnership accounting, the chancery court erroneously granted judgment for plaintiff, where the cause of action was barred by the applicable ten year statutes of limitation at least as early as 1962, which was 10 years after the death of defendant’s husband. Stebbins v. Hayes, 379 So. 2d 898, 1980 Miss. LEXIS 1836 (Miss. 1980).

In an action by landowners to cancel certain mineral interest conveyances, the 10-year statutes of limitation on actions at law and in equity to recover lands did not run from the date of the alleged conveyance of the mineral rights where the plaintiffs were in open and full possession of the land at the time of the purported conveyance and where the claimants to the mineral rights never took actual possession of the minerals at issue. Bowen v. Bianchi, 359 So. 2d 758, 1978 Miss. LEXIS 2268 (Miss. 1978).

Where a mineral interest is included in a deed by mutual mistake and the grantee does not claim such interest or intend to own or possess it, the grantee does not have constructive possession, and the statute of limitations in a suit for reformation will not begin to run against the grantor until he has notice of some adverse claim thereto or his possession is disturbed in some manner. Searcy v. Tomlinson Interests, Inc., 358 So. 2d 373, 1978 Miss. LEXIS 2526 (Miss. 1978).

Landowner’s suit to cancel defendant’s mineral deed on grounds of fraud was barred by the 10 year statute of limitations where, after landowner received actual notice of deed, he waited for more than 10 years to file suit. Hood v. Marshall, 326 So. 2d 320, 1976 Miss. LEXIS 1735 (Miss. 1976).

Limitations do not run against a widow’s right to claim homestead as against the owner of mineral rights conveyed by her husband’s deed, while she remains in undisturbed possession of the land. Biglane v. Rawls, 247 Miss. 226, 153 So. 2d 665, 1963 Miss. LEXIS 295 (Miss. 1963).

The limitation period begins to run against a right of action to set aside a mineral deed procured by representing it to be only a lease, from the time when it was put on record. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

An action in the nature of a suit to remove as clouds from title a claim to one-half oil, gas and mineral interest in land was barred where more than 10 years had been permitted to run before the institution of the action. Gandy v. Burke, 236 Miss. 241, 109 So. 2d 926, 1959 Miss. LEXIS 313 (Miss. 1959).

8. —Particular cases.

Statute of limitation defense did not apply to action by wife to set aside a conveyance of property by her husband to his father since the limitation period never began to run, as the conveyance was void because of Miss. Code Ann. §89-1-29 and the conveyance was made without the wife’s knowledge or consent. Snoddy v. Snoddy, 791 So. 2d 333, 2001 Miss. App. LEXIS 310 (Miss. Ct. App. 2001).

Where a deed conveyed a depot site to a railroad company and contained a covenant running with the land that a public roadway should be kept open to the depot grounds for public convenience at and around the station, and the railroad failed for a period of more than 40 years to maintain a station on the conveyed property, the covenant was barred by the statute of limitations. White v. Mississippi Power & Light Co., 196 So. 2d 343, 1967 Miss. LEXIS 1483 (Miss. 1967).

Statute held to bar suit to remove as alleged cloud on title, a deed executed upon a sale for purposes of partition some forty years before, on ground that all parties in interest were not served and that land was not shown therein to be incapable of partition in kind. Hollingsworth v. Central Oil Co., 236 Miss. 779, 112 So. 2d 518, 1959 Miss. LEXIS 376 (Miss. 1959).

Suit by heirs of an incompetent grantor to set aside a deed the recording of which in the grantor’s lifetime was constructive notice to them, is barred by the running of the statutory period since his death. Aultman v. Kelly, 236 Miss. 1, 109 So. 2d 344, 1959 Miss. LEXIS 287 (Miss. 1959).

Action to establish a trust in land against defendant who had taken title thereto in his own name in violation of an oral agreement to take title in the names of both complainant’s decedent and defendant was not barred by the ten-year statute of limitations, where under the Soldiers’ and Sailors’ Civil Relief Act the statute was suspended during decedent’s military service. Chichester v. Chichester, 209 Miss. 628, 48 So. 2d 123, 1950 Miss. LEXIS 423 (Miss. 1950).

Suit for reconveyance of land based upon purchaser’s agreement to reconvey when purchaser abandoned plant expected to be erected on land must be brought within ten years from date of abandonment of plant so erected, and is barred by limitations when brought after ten-year period. Krohn v. L. N. Dantzler Lumber Co., 208 Miss. 691, 208 Miss. 91, 45 So. 2d 276, 1950 Miss. LEXIS 287 (Miss. 1950).

9. —Concealed fraud.

Statute of limitation did not prohibit the chancery court from ruling on relatives’ action to recover land on the ground that it was fraudulently or mistakenly conveyed to a decedent because their cause of action did not accrue until they became aware of the adverse claim to the land, and the decedent took no action to possess and control any tract of land west of a creek; therefore, the cause of action did not accrue until the decedent’s estate sought to enforce the warranty deed. Estate of Pounds v. Shirley, 235 So.3d 1418, 2017 Miss. App. LEXIS 598 (Miss. Ct. App. 2017).

Chancery court properly dismissed as untimely a brother’s action against his sister to set aside certain deeds and instruments because, while the chancery court erred in inferring that the three-year general statute of limitations was applicable, the error was harmless and the 10-year statute of limitations for claims regarding land recovery in equity applied where the most recently dated deed associated with the transfer was filed and became a public record almost 15 years before brother’s complaint was filed, and even assuming there was concealed fraud in the property’s conveyance, the probate of the life tenant’s estate in 2002 provided a glaring opportunity for the sister’s alleged fraud to come to the brother’s attention. Conley v. Wright, 193 So.3d 663, 2016 Miss. App. LEXIS 340 (Miss. Ct. App. 2016).

Concealed fraud precluded the running of limitations for claiming land in equity where the grantee held the deed from his father without recording it, all the while representing to his family that the land was owned by all of his father’s heirs, and the fraud could not have been discovered with reasonable diligence before the son recorded the deed and contracted for the sale and harvest of timber on the land. Greenlee v. Mitchell, 607 So. 2d 97, 1992 Miss. LEXIS 483 (Miss. 1992).

Testator, an Italian immigrant, after providing a life estate for his widow, devised vested remainder interest in bulk of his property to a sister and his nieces and nephews in equal shares. Where, upon death of widow, her administrator stated in sworn petition filed in court that testator’s sister was dead, that there were no nieces or nephews of testator in Italy, and that administrator’s mother was testator’s sole heir, when in fact he and the widow knew other relatives existed in Italy entitled to share as tenants in common in testator’s estate; such false representations constituted concealed fraud upon court and relatives, and relatives were not barred by adverse possession but were entitled to recover in equity their interests in testator’s property, and for an accounting of rents and profits. Guiseppe v. Cozzani, 193 So. 2d 549, 1966 Miss. LEXIS 1287 (Miss. 1966).

Concealed fraud, tolling limitations, may not be predicated on the obtaining of a deed which was duly put on record. McMahon v. McMahon, 247 Miss. 822, 157 So. 2d 494, 1963 Miss. LEXIS 360 (Miss. 1963).

Fraud upon an equitable owner in the giving of a deed to a third person by the holder of the title is not concealed, so as to preclude the running of limitations, where the deed is placed on record. Rankin v. Mark, 238 Miss. 858, 120 So. 2d 435, 1960 Miss. LEXIS 473 (Miss. 1960).

This clause was held inapplicable to a situation where pursuant to an agreement to exchange lands one of the parties to the agreement went into possession although the other party failed to execute the agreement, in view of the fact that under the statute establishing title by adverse possession of ten years’ knowledge of an open, notorious and adverse possession may be presumed. Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578, 1942 Miss. LEXIS 40 (Miss. 1942).

To prevent the running of the statute on the ground of concealed fraud, complainant must allege and prove, first, the fraud and the act or acts constituting it; second, that such acts of fraud were committed by the defendant or someone in privity with him; third, that they were concealed from complainant by defendant or someone in privity with him; fourth, that complainant did not discover or know of the fraud over ten years before instituting suit; and fifth, that reasonable diligence was exercised to discover it sooner, or that complainant could not, by the exercise of reasonable diligence, have discovered it sooner. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

Filing a bill to cancel a deed to land is not such constructive notice of the fraud charged as will put in operation the statute in cases of concealed frauds, before service of summons on or a publication for a defendant who has no actual notice thereof. North American Trust Co. v. Lanier, 78 Miss. 418, 28 So. 804, 1900 Miss. LEXIS 81 (Miss. 1900).

10. Pleading.

In an action regarding a mineral interest deed claimants who had made an adverse entry onto the property could not utilize the statutes of limitations, Code §§15-1-7,15-1-9, against others who had taken constructive possession of the property. Mills v. Damson Oil Corp., 686 F.2d 1096, 1982 U.S. App. LEXIS 25678 (5th Cir. Miss. 1982).

A complaint seeking to set aside a deed is not demurrable as stating a cause of action barred by limitations where it alleges that the deed was obtained by fraud and duress, and while complainant was unable to attend to her affairs. McMahon v. McMahon, 243 Miss. 89, 137 So. 2d 520, 1962 Miss. LEXIS 318 (Miss. 1962).

Adverse possession must be pleaded and proved by party relying thereon. White v. Turner, 197 Miss. 265, 19 So. 2d 825, 1944 Miss. LEXIS 295 (Miss. 1944).

Bill to establish and quiet title to undivided interest in realty was not subject to special demurrer raising statute of limitations of ten years under this section [Code 1942, § 710], where, although admitting that holders under mesne conveyance from the other heirs of original owner are or have been in possession, the bill alleged that all such holders had notice of the outstanding interest of plaintiffs’ ancestor, that they held permissibly as tenants in common, that they have never asserted any claim of ownership in the entire interest in the land, and that there never has been any ouster of plaintiffs for adverse holding as against them. White v. Turner, 197 Miss. 265, 19 So. 2d 825, 1944 Miss. LEXIS 295 (Miss. 1944).

Where the complaint in a proceeding to vacate a partition sale and decree thereunder was wholly silent upon the matter of possession, and it was reasonable to infer that the purchasers never went into possession, the defendants, in order to sustain their special demurrers raising the affirmative defense of the ten-year and two-year statutes of limitations, were not entitled to an inference that the purchaser had gone into possession. Taylor v. Twiner, 193 Miss. 410, 9 So. 2d 644, 1942 Miss. LEXIS 117 (Miss. 1942).

Complainant need not set out in bill facts showing what diligence exercised to discover fraud. Nestor v. Davis, 100 Miss. 199, 56 So. 347, 1911 Miss. LEXIS 27 (Miss. 1911).

Bill in equity on its face barred by limitation is demurrable, complainants suing by next friend not averring that they are infants. Thames v. Mangum, 87 Miss. 575, 40 So. 327, 1905 Miss. LEXIS 206 (Miss. 1905).

Where a bill in equity failed to aver that defendants or any of their privies committed the alleged acts of fraud relied upon to extend the period of limitation, and the particular acts which constituted the fraud were indicated by mere vague, indefinite, general and uncertain averments, the bill was demurrable. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 21 et seq., 161 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 60, 61, 218 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 111, March 1979.

Cross References —

Proceedings to confirm title to land, see §§11-17-1 to11-17-37.

Proceedings for unlawful entry and detainer subsequent to sales for unpaid taxes, see §§11-25-3,11-25-103.

Form of conveyance at tax sales, see §27-45-23.

JUDICIAL DECISIONS

1. In general.

Mortgagor’s claims that an assignee of a mortgage failed to conduct a foreclosure sale by public outcry in compliance with the deed of trust and that the 10-year statute of limitations for defective instruments under Miss. Code Ann. §15-1-11 applied could not be resolved as the record did not contain the substituted trustee’s deed. Tenn. Props. Inc. v. Gillentine, 66 So.3d 695, 2011 Miss. App. LEXIS 329 (Miss. Ct. App. 2011).

Section 15-1-11 was inapplicable to an action for recovery of land based on fraud rather than a defect in an instrument. Greenlee v. Mitchell, 607 So. 2d 97, 1992 Miss. LEXIS 483 (Miss. 1992).

RESEARCH REFERENCES

ALR.

Res judicata as affected by limitation of jurisdiction of court which rendered judgment. 83 A.L.R.2d 977.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Cross References —

Powers and duties of Secretary of State, see §7-11-11.

Bill in chancery to confirm and quiet title, see §11-17-29.

Suits for ejectment, see §§11-19-1 through11-19-105.

Recovery by land commissioner of public lands adversely held, see §29-1-19.

Adverse possession of sixteenth sections or lieu lands, see §29-3-7.

Effect on deed of adverse possession, see §89-1-1.

Necessity of writing to convey land, see §89-1-3.

JUDICIAL DECISIONS

1. Possession in general.

2. —Nature of possession, generally.

3. — —Separate estate in minerals.

4. — —Particular cases.

5. —Payment of taxes.

6. —Wild land.

7. Color of title, generally.

8. —What constitutes.

9. —Particular cases.

10. Parol conveyance.

11. Tax sales.

12. Property held adversely.

13. —Adjoining tract.

14. —Part of tract.

15. —Railroad right of way.

16. —Sixteenth section lands.

17. Persons entitled to claim adversely.

18. —Tenant.

19. —Cotenants, generally.

20. — —Notice to.

21. — —Ouster.

22. — —Significance of recording or filing.

23. — —Particular cases.

24. — —Nonresidents.

25. Title or interest acquired.

26. —Easement.

27. — — Predecessors in interest.

28. Running of limitation period.

29. Evidence, generally.

30. —Deed.

31. —Parol evidence.

32. —Burden of proof.

33. —Particular cases, evidence sufficient.

34. — —Evidence insufficient.

35. Instructions.

36. Miscellaneous.

1. Possession in general.

In dispute among a brother, a sister-in-law, and another brother who was the husband of the sister-in-law, the chancery court did not err in its decision that use of 2.6 acres by one of the brothers was permissive, the permission was never terminated, and the use never became adverse. Cleveland v. Killen, 966 So. 2d 848, 2007 Miss. App. LEXIS 675 (Miss. Ct. App. 2007).

Award of two properties to adverse possessors by adverse possession was proper where their occupancy was more than sporadic or intermittent and was easily seen by the true owners. Buford v. Logue, 832 So. 2d 594, 2002 Miss. App. LEXIS 685 (Miss. Ct. App. 2002).

Heirs at law did not establish title to a disputed 40-acre tract of land by adverse possession as the possessory acts relied upon by the would be adverse possessors were insufficient to place the record title holder on notice that the lands were under an adverse claim of ownership; while each element of adverse possession was ultimately shown over a 60-year period, the heirs at law failed to prove that all of the elements to claim the property by adverse possession during any continuous 10-year period, as was required under Miss. Code Ann. 15-1-13. Cotton v. Cuba Timber Co., 825 So. 2d 669, 2002 Miss. App. LEXIS 69 (Miss. Ct. App. 2002).

In order to show adverse possession, a party must show possession, which is open notorious and visible, hostile, under claim of ownership, exclusive, peaceful, and continuous and uninterrupted for a period of 10 years. The existence of a fence around property for a period of at least 55 years offers a substantial basis for establishing adverse possession. Roy v. Kayser, 501 So. 2d 1110, 1987 Miss. LEXIS 2280 (Miss. 1987).

In an action to quiet title, the chancellor was justified in rejecting the permissive use theory, where plaintiff, claiming ownership against an adverse possessor, constructed a fence which he thereafter regarded as the boundary line of his property, operated his dairy business only on the property to the west of the fence he had constructed, pointed out the fence line to a surveyor as the western boundary of his property, and mortgaged all three tracts of his property on three separate occasions and none of the descriptions contained in those deeds of trust included the property claimed by the adverse possessor; thus, the chancellor was not manifestly wrong in finding that the property had been adversely possessed for the period prescribed in §15-1-13. Hewlett v. Henderson, 431 So. 2d 449, 1983 Miss. LEXIS 2574 (Miss. 1983).

Ten years’ possession by purchaser on foreclosure of trust deed and successors held, notwithstanding deed on foreclosure was not given, to give title as against grantor of trust deed. American Petrofina, Inc. v. Warren, 247 Miss. 552, 156 So. 2d 729, 1963 Miss. LEXIS 324 (Miss. 1963).

Where there has been a severance of minerals by an adverse possessor, the continued adverse possession of the surface by the severor or severee inures to the benefit of the severed mineral estate as against a true owner. Carlisle v. Federal Land Bank, 217 Miss. 289, 64 So. 2d 142, 1953 Miss. LEXIS 431 (Miss. 1953).

In a proceeding by alleged realty owners to be declared true owners of certain realty, where road running through the land in question has been maintained for twelve years or more, and the road has been regarded as a public one and traveled by many persons, a decree enjoining realty possessors from using the road was erroneous, despite the fact that evidence was insufficient to establish claim of ownership of realty by adverse possession. Ball v. Martin, 217 Miss. 221, 63 So. 2d 833, 1953 Miss. LEXIS 425 (Miss. 1953).

Purpose and intent of §§ 709 and 710, Code of 1942, and this section [Code 1942, § 711] is to guarantee good title to one purchasing land in good faith from another, where such other went into possession under recorded deed, valid on its face, and continued in uninterrupted possession for period of 31 years or more. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

Save as to easements, licenses or mere equities, abandonment is not effective to divest title to real estate, and fee simple titles are lost only by estoppel or by adverse possession or by maintainable tax sale. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Statute (Laws 1934, ch 250) providing that all mortgagors of real estate located within the state who might have the right to set aside any title to such real estate by reason of the neglect of any trustee to insert it in a notice of sale of such real estate, the name of said mortgagor, should commence suit within 12 months from the passage of such act, and upon the failure of such mortgagor or other person to commence suit within such time, the right to bring such suit, and the remedy to enforce such right of action should be deemed thereafter to be completely extinguished, if applied so as to restrict the application of the general ten-year statute, made applicable by provision of statute (Code 1942, § 888), regulating the sale of lands under mortgages and deeds of trust, was not invalid as being an impairment of contract or as class or private legislation, since the right to sue is distinct from the right sought to be enforced and is remedial in character. Barbour v. Williams, 196 Miss. 409, 17 So. 2d 604, 1944 Miss. LEXIS 207 (Miss. 1944).

This section [Code 1942, § 711] does not require an enclosure as an essential to adverse possession. Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 16 So. 2d 24, 1943 Miss. LEXIS 176 (Miss. 1943).

A county taking a fifty-foot right of way about twenty-six miles long and constructing a concrete sea wall on the south fifteen feet thereof and an earthen fill on the remaining thirty-five feet acquired title by adverse possession under the ten-year statute. Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322, 1938 Miss. LEXIS 27 (Miss. 1938).

Mere claim of title unaccompanied by adverse possession will not bar true owner. Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660, 1914 Miss. LEXIS 12 (Miss. 1914).

Where adverse occupant conveyed land to another but shortly thereafter resumed possession, sale being verbally rescinded, there was no break in adverse possession so as to render it unavailing against one claiming under verbally rescinded title of vendee. Southern Pine Co. v. Pigott, 93 Miss. 281, 47 So. 381, 1908 Miss. LEXIS 127 (Miss. 1908).

Adverse possession for 10 years will defeat suit to set aside occupant’s deed on ground it was executed to defeat creditors. Gordon v. Anderson, 90 Miss. 677, 44 So. 67, 1907 Miss. LEXIS 109 (Miss. 1907).

A mere scrambling possession is not sufficient under this section [Code 1942, § 711].Mitchell v. Bond (1904) 84 Miss 72, 36 So 148. Cohn v. Smith, 94 Miss. 517, 49 So. 611, 1909 Miss. LEXIS 376 (Miss. 1909); Mitchell v. Bond, 84 Miss. 72, 36 So. 148, 1904 Miss. LEXIS 13 (Miss. 1904).

2. —Nature of possession, generally.

Chancery court did not err in finding that landowners adversely possessed the disputed property because the evidence clearly established each element of adverse possession; the landowners’ activities provided sufficient notice to the prior owners of the property that they staked a proper claim of ownership, and the landowners’ possessory acts of hunting, fishing, running cattle, leasing the property, and planting on it were sufficiently hostile. Revette v. Ferguson, 271 So.3d 702, 2018 Miss. App. LEXIS 635 (Miss. Ct. App. 2018).

Chancery court did not err in finding that landowners adversely possessed property because the evidence clearly established each element of adverse possession; the landowners’ actions were open, notorious, and visible because they unfurled their flag on adjoining owners’ land and kept it flying such that the adjoining owners would have actual or constructive knowledge of the landowners’ presence, they hunted and fished on the disputed land, grazed cattle on the land, and erected fences. Revette v. Ferguson, 271 So.3d 702, 2018 Miss. App. LEXIS 635 (Miss. Ct. App. 2018).

There was substantial evidence to support the chancery court’s finding that landowners’ possessed disputed property continuously and uninterruptedly for ten years because their possession of the property was continuous and without interruption well in excess of the ten-year period required by the statute. Revette v. Ferguson, 271 So.3d 702, 2018 Miss. App. LEXIS 635 (Miss. Ct. App. 2018).

Chancery court did not err in finding that landowners adversely possessed the disputed property because the evidence clearly established each element of adverse possession; the landowners presented ample testimony regarding the actions that they, their invitees, and their lessees took on the disputed property, and no evidence was presented establishing a non-peaceful existence between the landowners and adjoining owners or their predecessors in interest. Revette v. Ferguson, 271 So.3d 702, 2018 Miss. App. LEXIS 635 (Miss. Ct. App. 2018).

Trial court’s finding of adverse possession in favor of appellees was proper; there were several claims of ownership by appellees that were visible for over 10 years, including testimony that appellees’ family had used the property for approximately 60 years prior to appellants’ purchase, and in 1987, boundaries of the family land were marked, and a survey corroborated these markings. Cronier v. ALR Partners L.P., 248 So.3d 861, 2017 Miss. App. LEXIS 676 (Miss. Ct. App. 2017), cert. denied, 247 So.3d 1264, 2018 Miss. LEXIS 308 (Miss. 2018).

Appellants did not need to be aware of the occupation for the 10 years, and title ripened in appellees when they completed 10 years of adverse possession, such that appellees’ flagging of the property was not too remote in time; appellants’ predecessors took no action to prevent appellees’ occupation, and thus the evidence established the actual and hostile element. Cronier v. ALR Partners L.P., 248 So.3d 861, 2017 Miss. App. LEXIS 676 (Miss. Ct. App. 2017), cert. denied, 247 So.3d 1264, 2018 Miss. LEXIS 308 (Miss. 2018).

Record established decades of open, obvious control of the disputed property, including appellees’ acts over the years in marking corners, creating firebreaks, fencing borders, leasing the property for hunting, and using the area’s road to access other property, such that the adverse possession element of open, notorious, and visible possession was met. Cronier v. ALR Partners L.P., 248 So.3d 861, 2017 Miss. App. LEXIS 676 (Miss. Ct. App. 2017), cert. denied, 247 So.3d 1264, 2018 Miss. LEXIS 308 (Miss. 2018).

Appellees possessed the disputed parcel for a continuous period in excess of 10 years; there is no limit regarding remoteness of time, and the continuous and uninterrupted use of the property over a period of ten or more years meets the statutory requirements. Cronier v. ALR Partners L.P., 248 So.3d 861, 2017 Miss. App. LEXIS 676 (Miss. Ct. App. 2017), cert. denied, 247 So.3d 1264, 2018 Miss. LEXIS 308 (Miss. 2018).

Appellees had exhibited actions showing dominion and control over the property at issue for decades; the testimony showed that appellees had maintained and marked the boundaries of the property since the 1940s by fences, yellow blazes, and firebreaks, and there was testimony that appellant was told about the corner markers and boundaries. Cronier v. ALR Partners L.P., 248 So.3d 861, 2017 Miss. App. LEXIS 676 (Miss. Ct. App. 2017), cert. denied, 247 So.3d 1264, 2018 Miss. LEXIS 308 (Miss. 2018).

Chancellor properly found the testimony showed that appellees peacefully used and possessed the disputed property for decades, plus appellees and one party were peaceful neighbors for over 10 years, and it was only when appellant purchased the property that a boundary dispute ensued. Cronier v. ALR Partners L.P., 248 So.3d 861, 2017 Miss. App. LEXIS 676 (Miss. Ct. App. 2017), cert. denied, 247 So.3d 1264, 2018 Miss. LEXIS 308 (Miss. 2018).

In an action to quiet title on the basis of adverse possession, plaintiffs’ predecessor in title held peaceful occupation of the land because their was no evidence establishing that he and defendants ever had any conflict regarding use or ownership of the land at issue. Hill v. Johnson, 27 So.3d 426, 2009 Miss. App. LEXIS 448 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 63 (Miss. 2010).

In an action to quiet title on the basis of adverse possession, the possessory acts of plaintiffs’ predecessor in title in bushhogging a field road, leasing the property to others, walking and driving on the road, and using the field road for all farming operations for 50 years were sufficient to establish title by adverse possession where defendants’ use of the roadway was scant at best. It was immaterial that the predecessor in title granted an easement on the property, as possession could be exclusive notwithstanding the land being subject to rights that are no more than mere easements. Hill v. Johnson, 27 So.3d 426, 2009 Miss. App. LEXIS 448 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 63 (Miss. 2010).

In an action to quiet title on the basis of adverse possession, the possessory acts of plaintiffs’ predecessor in title in bushhogging a field road, leasing the property to others, walking and driving on the road, and using the field road for all farming operations were sufficient to establish that the use was open, notorious, and visible. Hill v. Johnson, 27 So.3d 426, 2009 Miss. App. LEXIS 448 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 63 (Miss. 2010).

In an action to quiet title on the basis of adverse possession, the possessory acts of plaintiffs’ predecessor in title in bushhogging a field road, leasing the property to others, and walking and driving on the road were sufficient to establish the actual or hostile element of adverse possesion. Hill v. Johnson, 27 So.3d 426, 2009 Miss. App. LEXIS 448 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 63 (Miss. 2010).

In an action to quiet title on the basis of adverse possession, plaintiffs’ predecessor in title asserted a claim of ownership by erecting a fence that limited use of the field road and established a claim of right through planting and harvesting trees, leasing the land to others, and bushhogging the field road continuously. Hill v. Johnson, 27 So.3d 426, 2009 Miss. App. LEXIS 448 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 63 (Miss. 2010).

Lawyer admitted that in 1971, he thought his new building had been built on the adjacent property owner’s lot. He then set out in a deliberate attempt to adversely possess the 17 foot strip of land belonging to the out-of-state property owner, by building a fence, quitclaiming the property to his wife, and vice versa, and utilizing a false survey, before finally contacting the property owner in 1998 regarding his claim of adverse possession; because the lawyer knew he did not own the strip he had no claim of ownership at the beginning of the statutory period and, thus, he could not gain title to the property through adverse possession. Blackburn v. Wong, 904 So. 2d 134, 2004 Miss. LEXIS 1354 (Miss. 2004).

Award of two properties to adverse possessors by adverse possession was proper where their occupancy was more than sporadic or intermittent and was easily seen by the true owners. Buford v. Logue, 832 So. 2d 594, 2002 Miss. App. LEXIS 685 (Miss. Ct. App. 2002).

The character of the land determines the type of possession necessary to acquire title by adverse possession. Holliman v. Charles L. Cherry & Assoc., Inc., 569 So. 2d 1139, 1990 Miss. LEXIS 204 (Miss. 1990).

Where an occupant of land in good faith, though mistakenly, thinks the land lies within the calls of his own deed, when in fact it actually lies within the calls of his adversary’s deed, he acquires title to that land by adverse possession for statutory period. Alexander v. Hyland, 214 Miss. 348, 58 So. 2d 826, 1952 Miss. LEXIS 477 (Miss. 1952).

It is the rule that less notorious and obvious acts upon the land are essential to vest title in what are known as wild lands than lands suitable to occupancy by residing thereon and putting them to husbandry and farming. Broadus v. Hickman, 210 Miss. 885, 50 So. 2d 717, 1951 Miss. LEXIS 323 (Miss. 1951).

To acquire title by adverse possession, occupancy must be hostile from the inception of the period claimed, and entry upon land under grant of permissive use is not adverse or hostile to owner. Eddy v. Clayton, 44 So. 2d 395 (Miss. 1950).

Possession of the mortgagee is not considered hostile to the interest of a mortgagor during the continuance of the relationship of mortgagor and mortgagee. Heidelberg v. Duckworth, 206 Miss. 388, 40 So. 2d 179, 1949 Miss. LEXIS 269 (Miss. 1949).

No adverse user can arise from a use permissive in its inception until a distinct and positive assertion of a right hostile to the owner had been brought home to him. Williams v. Patterson, 198 Miss. 120, 21 So. 2d 477, 1945 Miss. LEXIS 174 (Miss. 1945).

Possession attributable to an easement will not be regarded as adverse to the fee owner until there is notice of a hostile claim to the fee. Williams v. Patterson, 198 Miss. 120, 21 So. 2d 477, 1945 Miss. LEXIS 174 (Miss. 1945).

The character and type of “adverse possession” required under Code 1942, § 717, limiting the time for attacking validity of tax sale to the state, is that pertaining to ten years adverse possession, and not that under Code 1942, § 716 respecting three years actual occupation under a tax title. Leavenworth v. Claughton, 197 Miss. 606, 20 So. 2d 821, 1945 Miss. LEXIS 300 (Miss. 1945).

When a fence, or a hedge-row, or the like, is relied upon to delineate the boundary of an adverse claim, the applicable rule is whether the enclosure, like other acts of possession, is sufficient to fly the flag over the land, and put the true owner upon notice that his land is held under an adverse claim of ownership. Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 16 So. 2d 24, 1943 Miss. LEXIS 176 (Miss. 1943).

While, under the ten-year adverse possession statute one may acquire title to land without actually occupying it, either himself or by tenant, but by merely cultivating, pasturing, cutting and selling timber, and other acts of ownership and control over the same, under the three-year statute it is required that there be actual occupancy for three years, and not the mere exercise of acts of ownership and control such as would give title by adverse possession without actual occupation. Smith v. Anderson, 193 Miss. 161, 8 So. 2d 251, 1942 Miss. LEXIS 103 (Miss. 1942).

In ejectment, instruction that if defendant’s occupancy and claim of title had been questioned or disputed defendant could not have verdict held erroneous as injecting element not required by adverse possession statute. May v. Culpepper, 177 Miss. 811, 172 So. 336, 1937 Miss. LEXIS 170 (Miss. 1937).

Uninterrupted possession of land for statutory period will not vest title unless open, notorious, and exclusive. Staton v. Henry, 130 Miss. 372, 94 So. 237, 1922 Miss. LEXIS 221 (Miss. 1922).

Possession must be adverse. Jackson Naval Stores Co. v. Tootle, 96 Miss. 486, 51 So. 801, 1910 Miss. LEXIS 192 (Miss. 1910).

A hostile, actual, open and notorious, exclusive and continuous occupancy for the statutory period is essential to constitute effective adverse possession. McCaughn v. Young, 85 Miss. 277, 37 So. 839, 1909 Miss. LEXIS 381 (Miss. 1909).

A possession which is adverse and actually known to the true owner is equivalent to a possession which is open and notorious. McCaughn v. Young, 85 Miss. 277, 37 So. 839, 1909 Miss. LEXIS 381 (Miss. 1909).

3. — —Separate estate in minerals.

The prior owner of a tract of land did not acquire ownership of a disputed one-quarter mineral interest by adverse possession where he had entered into possession of the tract believing that he only owned one-quarter of the minerals and had made statements over the years to that effect and where he had admitted in a settlement agreement that a mutual mistake had occurred when he acquired the land and that he had never had actual or constructive possession of the disputed mineral interest. Florida Gas Exploration Co. v. Searcy, 385 So. 2d 1293, 1980 Miss. LEXIS 2002 (Miss. 1980).

Adverse possession of the surface without active production and appropriation of materials, is not adverse possession of severed mineral rights. Moffett v. International Paper Co., 243 Miss. 562, 138 So. 2d 492, 139 So. 2d 655, 1962 Miss. LEXIS 376 (Miss. 1962).

After title to the surface estate has been severed from title to the underlying mineral estate, title to the minerals cannot be acquired by adverse possession of the surface alone. Huddleston v. Peel, 238 Miss. 798, 119 So. 2d 921, 1960 Miss. LEXIS 465 (Miss. 1960).

Adverse possession of the surface will not operate as an adverse possession of a separated estate in the minerals. Lee v. Lee, 236 Miss. 260, 109 So. 2d 870, 1959 Miss. LEXIS 316 (Miss. 1959).

Possession of surface is not adverse to ownership of minerals. Aultman v. Kelly, 236 Miss. 1, 109 So. 2d 344, 1959 Miss. LEXIS 287 (Miss. 1959).

Where minerals had been severed from the surface and defendants, claiming under a color of title of a void tax deed, although exercising acts of ownership of which the surface was susceptible, had never taken actual possession of any of the minerals, they did not acquire rights to the minerals by adverse possession, so that plaintiffs who held mineral rights to the land through inheritance from the grantor of the surface rights did not lose their rights to the minerals by limitations or laches. White v. Merchants & Planters Bank, 229 Miss. 35, 90 So. 2d 11, 1956 Miss. LEXIS 583 (Miss. 1956).

Where grantor did not sign a deed to the bank and where later the bank conveyed surface and one-half mineral interest to grantee but the bank reserved one-half mineral interest in the possession of bank and possession was open, continuous and adverse more than ten years, this possession of the grantee inured to the benefit of the bank as against heirs of original grantor and the bank had good title to the one-half mineral interest reserve. Carlisle v. Federal Land Bank, 217 Miss. 289, 64 So. 2d 142, 1953 Miss. LEXIS 431 (Miss. 1953).

4. — —Particular cases.

Chancery court did not err in finding a claimant did not adversely possess approximately eighty acres of unimproved land, in accordance with Miss. Code Ann. §15-1-13(1), because testimony by two owners of the land established they believed the claimant was a co-tenant and given the claimant’s illusory position as a co-tenant, none of the claimant’s actions would have given the owners notice he was attempting to adversely possess the property; the claimant and the owners were relatives. Dean v. Slade, 63 So.3d 1230, 2010 Miss. App. LEXIS 608 (Miss. Ct. App. 2010), cert. denied, 63 So.3d 1229, 2011 Miss. LEXIS 310 (Miss. 2011), cert. denied, 2014 Miss. LEXIS 605 (Miss. Dec. 11, 2014).

Award of title to a disputed tract of land to the adjoining landowners by virtue of adverse possession proper, in part because evidence that those landowners had constructed a barbed-wire fence encompassing the disputed property some 60 years ago was compelling evidence of adverse possession; the landowners had also planted crops and continually harvested timber. Apperson v. White, 950 So. 2d 1113, 2007 Miss. App. LEXIS 126 (Miss. Ct. App. 2007).

If a public road runs through the property of one and deadends on the property of another, and for 10 years the latter landowner (and persons acting on his behalf and with his permission) are the only ones to use the road, no abandonment occurs. It is not necessary that interlopers or sightseers or persons without any ownership interest or business on the latter’s property use the road, for the owner of the land on whose property the road dead-ends is, as much as any other, a member of the general public, and as able in law to interrupt the period of prescription. McNeely v. Jacks, 526 So. 2d 541, 1988 Miss. LEXIS 305 (Miss. 1988).

Chancellor’s order confirming and quieting title in landowner was proper where landowner’s mother had claimed disputed property from 1945 until she deeded it to landowner in 1973; use of this property was exclusive and peaceful, continuous for 41 years, actual, open, and notorious, and under claim of right; evidence showed that disputed property was under fence for purpose of grazing cows from 1942 until mid-1960’s, and fence remained in repair well enough to keep cattle until at least 1972; it does not matter whether land claimed under adverse possession is within “call of the title deeds,” or is in same quarter section or section as land lies which is described in deed; since requirements of adverse possession had been established by fence around disputed property and continued use of property for more than 40 years, once title ripened by adverse possession it was not necessary that fence be standing, or even in existence, when suit was filed. Pieper v. Pontiff, 513 So. 2d 591, 1987 Miss. LEXIS 2832 (Miss. 1987).

Acquisition of one-half interest in property by adverse possession was not established where former wife’s occupancy of premises was not exclusive, being shared with husband; interest of former wife in property was at best homestead interest, her legal relationship with husband regarding title being analogous to that of cotenants, which would have required effective communication of intent and legal ouster of husband from one-half interest in question, neither of which was shown. Davis v. Davis, 508 So. 2d 1062, 1987 Miss. LEXIS 2527 (Miss. 1987).

Grantor does not reacquire title by adverse possession as against grantee where although, subsequent to conveyance to grantee, grantor keeps land conveyed under fence and marked with posted signs, grantor’s use is with permission of grantee. Johnson v. Black, 469 So. 2d 88, 1985 Miss. LEXIS 2086 (Miss. 1985).

Three years actual occupancy by the complainants’ predecessor was sufficient to begin the running of the statute, and possession was not lost by the adverse claimant when he moved from the land but was continued by his payment of taxes each year either by himself or his descendants, and where the defendants had only slight and sporadic possession of the land and did not protest payments of taxes or possession, title vested in the complainants by the continuous adverse possession subsequent to the ouster of the cotenants. Hardy v. Lynch, 258 So. 2d 414, 1972 Miss. LEXIS 1495 (Miss. 1972).

While it was undisputed that a person claiming title to a three-acre tract was in continuous, open, and exclusive possession of it for more than 40 years, having fenced it during that time and used it as a garden and for fruit trees, and where he testified that he entered possession without the permission of the corporate landowner, and the landowner’s chairman, although invited to say that he gave the possessor permission to enter the land, declined to say so, title by adverse possession was established, and conversations taking place years after the statutory period of 10 years had elapsed between the chairman and the possessor about the possible buying or swapping some of the possessor’s land for some of the corporation’s land, were insufficient to prevent adverse possession on the theory of permissive use. McSwain v. B. M. Stevens Co., 247 So. 2d 707, 1971 Miss. LEXIS 1451 (Miss. 1971).

Land used as a parking area could not be the subject of a right of occupancy by adverse possession where the evidence was clear that, while the plaintiff’s tenants used this parking area from time to time, the tenants of the defendant and its predecessor in title also used the area for parking, so that the use was joint and not exclusive. Fant v. Standard Oil Co., 247 So. 2d 132, 1971 Miss. LEXIS 1437 (Miss. 1971).

A son of intestate could not claim title to land by adverse possession against a widow who had not claimed any interest in the property because of mistaken idea of invalidity of her marriage and where the son kept the property under the idea that his stepmother had no interest. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

Where claimant executed a lease on lot 1 of block 4 of an addition, the lease did not constitute adverse possession of lot 8 of block 3 of addition, and adverse possession does not begin to run until there was actual occupancy of lot 8. Caillouet v. Martin, 210 Miss. 632, 50 So. 2d 351, 1951 Miss. LEXIS 301 (Miss. 1951).

In an action by the record owner of land to remove defendant’s claim thereto as a cloud upon its title, wherein defendant by cross bill asserted title to the land by adverse possession, the burden was upon the defendant to show that he was vested with title by adverse possession to the disputed area, and to do so it was necessary for him to show that he alone, or he and his predecessors in title together, had had actual open, hostile, peaceable, exclusive, continuous possession of the land for ten years, under claim of ownership thereto. Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So. 2d 505, 1947 Miss. LEXIS 248 (Miss. 1947).

Only statute which purchaser at void tax sale could invoke in owner’s suit was the 10-year statute of adverse possession, and this only as to land actually occupied by the purchaser and not to the calls of the deed. Meyerkort v. Warrington, 19 So. 2d 433 (Miss. 1944).

Where bank and predecessors had open, peaceable possession of land for forty-five years, exercising ordinary acts of ownership and paying taxes, conclusive presumption obtained that bank had perfect title, and it could not be held liable to subsequent purchaser under warranty deed for expense of procuring new patent from State, as quitclaim deed, because forfeited tax land patents of predecessor of bank were void. Presley v. Haynes, 182 Miss. 44, 180 So. 71, 1938 Miss. LEXIS 141 (Miss. 1938).

Where there has been open, continuous occupancy, possession and use of land for more than forty-five years under void forfeited tax land patent, State receiving taxes from possessor, title will be deemed as perfect as under ten-year statute against private owner. Presley v. Haynes, 182 Miss. 44, 180 So. 71, 1938 Miss. LEXIS 141 (Miss. 1938).

Plaintiff holding lands for statutory period under belief that it was within the calls of his deed obtained title by adverse possession, where he was in actual open, continuous, exclusive possession for such period. Schuler v. McGee, 127 Miss. 873, 90 So. 713, 1921 Miss. LEXIS 291 (Miss. 1921).

Merely cutting rails, boards, etc., and posting land against trespassers is insufficient to establish adverse possession. A. W. Stevens Lumber Co. v. Hughes, 38 So. 769 (Miss. 1905).

5. —Payment of taxes.

Evidence that the father of adverse claimant, with the permission of the then owner of the land, had built a fence around the disputed acreage in 1907, while title thereto was in the State, and for some time afterwards the fence was not kept in good repair so that neighborhood cattle grazed at will thereon after crops were gathered, and claimant had failed to have the property assessed for taxes, did not show exclusive possession in the adverse claimant as against the rights of purchaser under a valid tax sale. Harmon v. Buckwalter, 233 Miss. 761, 102 So. 2d 895, 1958 Miss. LEXIS 438 (Miss. 1958).

As a defense to an action by a successor in title to redeem encumbered land from the holder of a trust deed who had purportedly purchased the encumbered land at an invalid trustee’s foreclosure sale, and had taken possession of the land and paid the taxes thereon for 24 years, the holder of the trust deed could rely on either this section [Code 1942, § 711] or Code 1942, § 718, as a mortgagee in possession after a condition broken, notwithstanding Code 1942, § 888, providing in part that an error in the mode of sale such as makes a sale void would not be cured by any statute of limitations, except after the 10-year statute of adverse possession. Gulfport Farm & Pasture Co. v. Hancock Bank, 232 Miss. 289, 98 So. 2d 862, 1957 Miss. LEXIS 474 (Miss. 1957), cert. denied, 358 U.S. 67, 79 S. Ct. 122, 3 L. Ed. 2d 106, 1958 U.S. LEXIS 178 (U.S. 1958).

Even if a tax deed had been defective or void for failure to advertise the tax sale or to give the land owner notice as to redemption, it would still have operated as color of title and formed a sufficient basis upon which adverse possession would ripen into title, and since defendants had admittedly deprived the complainant of possession of land for considerably more than ten years prior to the complainant’s action for confirmation of his title, the complainant could not prevail. Trotter v. Roper, 229 Miss. 784, 92 So. 2d 230, 1957 Miss. LEXIS 325 (Miss. 1957).

Where minerals had been severed from the surface, and defendants, claiming under a color of title of a void tax deed, although exercising acts of ownership of which the surface was susceptible, had never taken actual possession of any of the minerals, they did not acquire rights to the minerals by adverse possession, so that plaintiffs who held mineral rights to the land through inheritance from the grantor of the surface rights did not lose their rights to the minerals by limitations or laches. White v. Merchants & Planters Bank, 229 Miss. 35, 90 So. 2d 11, 1956 Miss. LEXIS 583 (Miss. 1956).

Where owner inquired from time to time as to whether taxes were being paid, mortgagee in possession had the duty to inform the owner that he was claiming the land as his own. Heidelberg v. Duckworth, 206 Miss. 388, 40 So. 2d 179, 1949 Miss. LEXIS 269 (Miss. 1949).

Where there has been open, continuous occupancy, possession and use of land for more than forty-five years under void forfeited tax land patent, State receiving taxes from possessor, title will be deemed as perfect as under ten-year statute against private owner. Presley v. Haynes, 182 Miss. 44, 180 So. 71, 1938 Miss. LEXIS 141 (Miss. 1938).

One holding land for more than 10 years is entitled to ejectment against one taking possession on ground his grantors paid taxes thereon. Moore v. Neill, 117 Miss. 862, 78 So. 774, 1918 Miss. LEXIS 224 (Miss. 1918).

Payment of taxes will not render defective possession sufficient to ripen into title; at most mere evidence of claim of ownership. Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660, 1914 Miss. LEXIS 12 (Miss. 1914).

With respect to wild land not susceptible of occupancy, improvement or cultivation, paying taxes for a long term of years, the former owner neither paying nor asserting any claim, using the timber with the knowledge of the former owner, placing mortgages of record and offering the land for sale, evidence adverse possession. McCaughn v. Young, 85 Miss. 277, 37 So. 839, 1909 Miss. LEXIS 381 (Miss. 1909).

6. —Wild land.

Substantial evidence supported the chancellor’s classification of the land as wild because he visited the land and observed its characteristics and topography; the chancellor found that the only improvements to the land included a small section of fencing. Revette v. Ferguson, 271 So.3d 702, 2018 Miss. App. LEXIS 635 (Miss. Ct. App. 2018).

Neither actual occupation, cultivation, nor residence are necessary to constitute actual possession when the property is so situated as not to admit any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. Broadus v. Hickman, 210 Miss. 885, 50 So. 2d 717, 1951 Miss. LEXIS 323 (Miss. 1951).

With respect to wild land not susceptible of occupancy, improvement or cultivation, paying taxes for a long term of years, the former owner neither paying nor asserting any claim, using the timber with the knowledge of the former owner, placing mortgages of record and offering the land for sale, evidence adverse possession. McCaughn v. Young, 85 Miss. 277, 37 So. 839, 1909 Miss. LEXIS 381 (Miss. 1909).

Where the land will not admit of permanent useful improvement and the continued claim of possession is evidenced by public acts of ownership, actual occupation, cultivation and residence are unnecessary. McCaughn v. Young, 85 Miss. 277, 37 So. 839, 1909 Miss. LEXIS 381 (Miss. 1909).

7. Color of title, generally.

Where a party enters into possession of land under color of title, he is not considered as the mere disseizor, and confined to the part of premises in his actual occupancy, but his claim extends to all the lands embraced in the deed which he claims. Smith v. Cook, 213 Miss. 876, 58 So. 2d 27, 1952 Miss. LEXIS 437 (Miss. 1952).

Color of title, coupled with actual possession of a part of the land constitutes constructive possession of the whole, and the adverse possession runs to the whole tract. Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391, 1949 Miss. LEXIS 347 (Miss. 1949).

Where one enters without color of title, his title by adverse possession, if any, runs only to such part of the land as was actually held by him in possession or enclosed or otherwise actually and continuously occupied by him for the statutory period of ten years. Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391, 1949 Miss. LEXIS 347 (Miss. 1949).

Adverse claimants and predecessors in title, who were without color of title by parol gift, deed or other writing to any part of the disputed tract, could claim title by adverse possession to such portion only as was actually and continuously used, cultivated or occupied, adversely to the owner of the record title. Kersh v. Lyons, 195 Miss. 598, 15 So. 2d 768, 1943 Miss. LEXIS 173 (Miss. 1943).

Color of title to whole tract coupled with actual possession of part constitutes constructive possession of whole. Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703, 1918 Miss. LEXIS 216 (Miss. 1918).

Color of title cannot be created by parol grant so as to establish adverse possession; parol color of title applies only in favor of vendee against vendor and persons claiming under him. Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147, 1916 Miss. LEXIS 42 (Miss. 1916).

Without color of title adverse possession gives title only to land actually and continuously occupied. Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53, 1916 Miss. LEXIS 114 (Miss. 1916).

8. —What constitutes.

A warranty deed to the right of redemption and the forfeited tax land patent issued by the state, constituted a color of title. Jones v. Jones, 226 Miss. 378, 84 So. 2d 414, 1956 Miss. LEXIS 408 (Miss. 1956).

Generally, tax deed gives color of title although it is invalid or even where absolutely void, providing description of the property is legally sufficient. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Entry into possession of land under a parol gift from another, who had no title by record or otherwise, does not constitute color of title. Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391, 1949 Miss. LEXIS 347 (Miss. 1949).

Instrument containing granting clause purporting to “convey and warrant at my death” to a named person in consideration of love and affection constituted sufficient color of title to support claim of adverse possession, regardless of its legal character as testamentary or otherwise. Downing v. Starnes, 35 So. 2d 536 (Miss. 1948).

A trustee’s deed executed to the purchaser at foreclosure sale is sufficient to constitute color of title even though the trust deed is foreclosed by the original trustee named after the appointment of a substituted trustee as a matter of record. Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So. 2d 227, 1946 Miss. LEXIS 354 (Miss. 1946).

Regardless of whether a wife may be permitted to acquire, as against her husband, title to the homestead by the mere assertion of title or other act in pais, it is settled that, where the wife holds the homestead under color of title arising from a recorded conveyance in her name, and evinces her claim by acts of ownership and control, all to the knowledge of the husband, she may acquire complete title thereto by adverse possession for the statutory period. Lincoln v. Mills, 191 Miss. 512, 2 So. 2d 809, 3 So. 2d 835, 1941 Miss. LEXIS 153 (Miss. 1941).

Void tax deed good color of title on which to base adverse possession. Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911).

9. —Particular cases.

Former wife cannot claim title by adverse possession where no deed purports to convey any interest in property to her, although such claim would be recognized where one enters into possession under mistaken belief that land in question lies within calls of deed. Davis v. Davis, 508 So. 2d 1062, 1987 Miss. LEXIS 2527 (Miss. 1987).

Widow’s act in recording deed, valid on its face, to her from purchaser of her deceased husband’s land at foreclosure sale, gave notice to world that she claimed to be owner of land and that act was act of ouster as against anyone else claiming the land, including her six children, whose ages ranged from 1 to 12 years, and warranty deed by her after she had been in uninterrupted possession under this recorded deed for more than 34 years conveyed good title. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

The execution and recording of a warranty deed by several cotenants of land to a stranger to the title set in motion an adverse claim against a cotenant who had not signed the deed, which was thereupon made available to the grantee, who, by implementing such claim by adverse possession through himself and his successors in title for a period beyond the statutory limitation, matured the disseisin into complete ownership. Davis v. Gulf Refining Co., 202 Miss. 808, 32 So. 2d 133, 1947 Miss. LEXIS 344 (Miss. 1947).

The fact that another occupies land for several months as a tenant at will of one having color of title, pending execution of a lease between them, is not a break in the character of adverse possession claimed by the holder of color of title. Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So. 2d 227, 1946 Miss. LEXIS 354 (Miss. 1946).

10. Parol conveyance.

Claim of title to land under parol gift, accompanied by entry and adverse holding for 10 years, ripens into good title. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

For parol gift of land, accompanied by entry and adverse possession, to ripen into good title, the clearest and most satisfactory evidence is required as to fact of gift, identity of land, and exclusiveness of possession. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

Execution of oil and gas deed by widow of one claiming land under parol gift is evidence of ouster, and, combined with payment of taxes and acts of ownership over land thenceforth, made issue as to whether or not title ripened into good title. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

It is settled law in this state that a parol gift of land where the donee goes into possession, accompanied by 10 years’ adverse possession, will vest the title in the donee. Elmer v. Holmes, 189 Miss. 785, 199 So. 84, 1940 Miss. LEXIS 169 (Miss. 1940).

A pleading which shows a parol exchange of lands, followed by continuous actual adverse possession and claim of ownership for more than ten years sufficiently manifests title against all persons not under disability. Bynum v. Stinson, 81 Miss. 25, 32 So. 910, 1902 Miss. LEXIS 119 (Miss. 1902).

Adverse possession, though under a parol gift, if it continue for ten years, confers a perfect title. Davis v. Davis, 68 Miss. 478, 10 So. 70, 1891 Miss. LEXIS 52 (Miss. 1891).

11. Tax sales.

Title ad ownership of land does not depend upon the validity or invalidity of the tax sales and the Forfeited Tax Land Patents which were subsequently acquired since if the sales were legally and validly made then the titles that are derived through the Forfeited Tax Land Patents are good under §15-1-15 and, on the other hand, if one or more of the tax sales was invalid or illegal then title to the lands in question remained in individuals and thereby was subject to acquisition by purchasers through adverse possession under §15-1-13. United States v. 613.86 Acres of Land, 507 F. Supp. 327, 1980 U.S. Dist. LEXIS 16079 (N.D. Miss. 1980).

Decree in a confirmation suit adjudicating the validity of a patent from the state to tax forfeited land, which did not purport to affect claims of defendant in a subsequent quiet title action either by adverse possession or under a quitclaim deed from the owner at the time of the tax sale, does not preclude such defendant from asserting adverse possession or invalidity of the tax sale. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

Claimant acquired title under § 717, Code of 1942, the two-year tax statute of limitations, where there was an invalid tax sale to the state of three parcels of land which were adjoining and constituted and should have been sold as one tract, but where the claimant exercised ownership over the property, paid taxes, gave a turpentine lease under which visible acts upon trees performed by the lessee, and where the claimant developed a program of reforestation. Broadus v. Hickman, 210 Miss. 885, 50 So. 2d 717, 1951 Miss. LEXIS 323 (Miss. 1951).

Sale of land to the state for taxes does not break the continuity of adverse possession if the tax sale is redeemed within the time required by law. Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So. 2d 227, 1946 Miss. LEXIS 354 (Miss. 1946).

Title by adverse possession disclosed against original owner of land disappeared when the land was sold for taxes under which the purchaser obtained the land free from the claim of adverse possession. Hall v. State, 17 So. 2d 325 (Miss. 1944).

12. Property held adversely.

Chancery court did not abuse its discretion in granting a couple’s motion to quiet and confirm title because substantial evidence supported its determination that the couple proved adverse possession by clear and convincing evidence; the couple erected a fence, placed horses within it, and maintained control of the fenced area, and they maintained a level of usage of the property that would have placed the record owner on notice of the occupation. Little v. Richey, 230 So.3d 336, 2017 Miss. App. LEXIS 627 (Miss. Ct. App. 2017).

Substantial evidence supported the chancellor’s finding that appellee proved adverse possession, as he was the only person who utilized the disputed property, appellant conceded that he knew appellee was always building on this piece of property, and there was no indication that appellee attempted to conceal his use of the property, and appellee’s possession of the land began in 2000 and his use was continuous and uninterrupted until 2012. Powell v. Meyer, 203 So.3d 648, 2016 Miss. App. LEXIS 674 (Miss. Ct. App. 2016).

In a suit to quiet title against property owners who held title to the disputed land, the adjoining landowners acquired title through adverse possession where they inherited land from their uncle, the uncle had long believed that the northern property line of his land was established by a fence line, and the uncle had openly and conspicuously used the property south of that fence line under a claim of ownership for more than 10 years. The uncle’s mistaken believe that the fence was the northern boundary line of the property was sufficient to establish adverse possession, and there was substantial evidence to support the chancellor’s finding that the uncle claimed ownership beginning in 1952 when he acquired the property. Webb v. Drewrey, 4 So.3d 1078, 2009 Miss. App. LEXIS 97 (Miss. Ct. App. 2009).

Appellate court affirmed an award of an easement to the property owners pursuant to Miss. Code Ann. §15-1-13 as the property owners established that they had used the gravel road that crossed the landowners’ property from 1956 to 2002, that they made improvements on the land, and the use of the land was hostile. Griffin v. Brian Dev. Co., 938 So. 2d 337, 2006 Miss. App. LEXIS 678 (Miss. Ct. App. 2006).

Finding in favor of a property owner in his action seeking to enjoin another from trespassing on the property owner’s property was appropriate because he owned the property as the record title holder; alternatively, he had met the elements of adverse possession, including claiming ownership for a period well in excess of the 10-year period for adverse possession contained in Miss. Code Ann. §15-1-13(1). Wicker v. Harvey, 937 So. 2d 983, 2006 Miss. App. LEXIS 670 (Miss. Ct. App. 2006).

Plaintiff’s possession of land was adverse, notwithstanding defendants’ assertion that they were aware that the plaintiff was occupying and farming the land but, because she was a member of the family, they had never complained and permitted her to continue; the plaintiff never requested permission to use the land, she and her former husband farmed it and used it as pasture land, they cut timber from a portion of the disputed land and kept all the proceeds, and the defendants never sought any of the proceeds, and the plaintiff also leased the property and received all rental income, and again, the defendants never complained nor did they seek a portion of the rents. Peagler v. Measells, 743 So. 2d 389, 1999 Miss. App. LEXIS 129 (Miss. Ct. App. 1999).

A church was bound by a covenant in a deed giving it property for as long as a church should be maintained there and could not obtain title by adverse possession of the land used by a church but located in a quarter section not set forth in the deed, where the deed to the acreage upon which the church was built described the wrong quarter section but referred specifically to other land of the grantor. Wortman & Mann Ins. Agency v. Ivey, 222 So. 2d 137, 1969 Miss. LEXIS 1519 (Miss. 1969).

So long as a grantee occupies property by virtue of a covenant in a deed, his possession is not adverse to the grantor, and until the grantee brings to the attention of the landowner some notice that the grantee claims the land in a method hostile and adverse to the covenant, adverse possession is not established. Wortman & Mann Ins. Agency v. Ivey, 222 So. 2d 137, 1969 Miss. LEXIS 1519 (Miss. 1969).

A reservation of timber in a conveyance of land does not prevent persons claiming under foreclosure of a deed of trust executed by the grantee without excepting the timber, and under a tax sale, from acquiring title to the timber by adverse possession. Manar v. Smith, 236 Miss. 192, 109 So. 2d 652, 1959 Miss. LEXIS 308 (Miss. 1959).

Even though it was assumed that a lumber company, which acquired a warranty deed to land from the father and brother in which the children had an interest, became a tenant in common with the children, evidence showing that the lumber company upon acquiring the deed went into immediate possession of the land enclosed it with a fence, had land assessed and paid taxes thereon, had a caretaker to look after it, cut timber thereon, and claimed the land openly as its own, and the children for at least 18 years after they became of age came back and forth to their father’s old homestead just across the highway from the land, indicated that the children knew that the lumber company was in actual possession of the land and claiming full title thereto for a longer period than ten years. Avera v. Turner Lumber Co., 230 Miss. 123, 92 So. 2d 458, 1957 Miss. LEXIS 351 (Miss. 1957).

In order to show adverse possession, there is a necessity for unequivocal acts showing an occupancy which is actual, continuous, and hostile, especially where such occupancy is by a member of a family against another. Coleman v. L. & M. Land & Mineral Corp., 54 So. 2d 213 (Miss. 1951).

Person in adverse possession of land for more than ten years becomes owner of land in his possession, though not in calls of his deed. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

In suit to confirm title to land in which answer sets up ownership by defendants of part of land by adverse possession, proof by defendants as to land adversely possessed by them is admissible and proper description thereof can be obtained by survey. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

Where the description of land sold at a tax sale did not cover all of the land on which the taxes had been levied, a purchaser from the state, who occupied the entire tract had no valid claim, as against the original owners, to that portion of the land not included in such description, and title thereto would not be lost to the original owner through any doctrine of laches short of the ten-year statute of limitations. Johnson v. Carter, 193 Miss. 781, 11 So. 2d 196, 1943 Miss. LEXIS 8 (Miss. 1943).

Where one of the parties to an agreement for the exchange of land failed to execute a deed to the property he exchanged, but the other party and her son moved thereon, the son continuing to occupy the land thereafter for many years and until the heirs of the first mentioned party brought an action in ejectment, the statute postponing the running of limitations until after the actual or constructive knowledge of concealed fraud was inapplicable, and would be inconsistent with the ten-year statute establishing title by adverse possession, since under the latter statute knowledge of an open, notorious and adverse possession may be presumed. Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578, 1942 Miss. LEXIS 40 (Miss. 1942).

13. —Adjoining tract.

Substantial evidence supported a finding of adverse possession because property owners met their burden of proof through privity of possession with their predecessors in the use and maintenance of their properties. Mize v. Westbrook Constr. Co. of Oxford, LLC, 146 So.3d 352, 2013 Miss. App. LEXIS 432 (Miss. Ct. App. 2013), rev'd, in part, 146 So.3d 344, 2014 Miss. LEXIS 443 (Miss. 2014).

Where the landowners sought to remove a quitclaim deed from the record as a cloud upon their title, the quitclaim deed listed an old fence line, which was an old barbed wire fence, and the chancellor ruled in favor of landowners, the chancellor did not err in finding that the neighbors had not acquired the property by adverse possession. Ellison v. Meek, 820 So. 2d 730, 2002 Miss. App. LEXIS 341 (Miss. Ct. App. 2002).

Adverse possession was established by evidence showing possessors enjoyed complete and total possession of tract for 14 years and, during that 14 years period, the possessors maintained a fence, planted a garden, raised crops, pastured cattle and cut timber upon their holdings. Roy v. Kayser, 501 So. 2d 1110, 1987 Miss. LEXIS 2280 (Miss. 1987).

Witnesses’ testimony as to predecessor-in-title’s total dominion and control over a 4 acre tract south of a boundary-line fence established that he had acquired title to the property by adverse possession. Shows v. Watkins, 485 So. 2d 288, 1986 Miss. LEXIS 2380 (Miss. 1986).

School’s possession of land adjoining land deeded to school trustees is shown to be adverse and under claim of ownership within limitations of deed to school by evidence that it has been enclosed by wire fence and line of white-washed trees for more than fifteen years; that school children have used it for playground and basketball court; that grantor pointed this land out as being included in deed and assisted in building new school building partly on it. Kelly v. Wilson, 204 Miss. 56, 36 So. 2d 817, 1948 Miss. LEXIS 342 (Miss. 1948).

In boundary line suit defendant’s claim of adverse possession beyond line of her original tract should not be ignored. Gillespie v. Magruder, 92 Miss. 511, 46 So. 77, 1908 Miss. LEXIS 212 (Miss. 1908).

Adverse possession for ten years of a part of an adjoining tract, though claimed under the mistaken belief that it was within the calls of his own deed, gives title. Jones v. Gaddis, 67 Miss. 761, 7 So. 489, 1890 Miss. LEXIS 103 (Miss. 1890).

14. —Part of tract.

It was proper to grant a family trust title to a parcel of land because the trust adversely possessed the parcel; the trust staked an ownership claim from 1911 to 2016, it maintained and used the parcel for over one-hundred years without permission, it enjoyed unrestricted use of the parcel from 1911 to 2016, it used the parcel for a continuous and uninterrupted period of at least ten years, only the trust used the parcel after a fence was built around 1911, and its possession was peaceful. Collins v. Moore Family Trust 1999, 269 So.3d 184, 2018 Miss. App. LEXIS 28 (Miss. Ct. App. 2018).

Chancery court did not err in denying siblings’ claims for adverse possession or prescriptive easement with respect to a roadway because they failed to establish that their use of the roadway was hostile; the record was void of any evidence suggesting the siblings’ use of the roadway was anything but peaceful, and the property owner testified that she never sought to bar the siblings from using the roadway but merely sought to have the siblings remove their lock from the gate on the roadway. Estate of Jones v. Pruitt, 243 So.3d 212, 2017 Miss. App. LEXIS 574 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 70, 2018 Miss. LEXIS 215 (Miss. 2018).

Chancery court did not err in finding that siblings failed to establish that their deer-camp structure had encroached onto owners’ property for the statutorily required ten years because the owners presented evidence that the structure was not encroaching upon their property as late as 2004; the siblings presented no evidence as to when the structure was enlarged to the extent that it began actually encroaching upon the owners’ property. Estate of Jones v. Pruitt, 243 So.3d 212, 2017 Miss. App. LEXIS 574 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 70, 2018 Miss. LEXIS 215 (Miss. 2018).

Pursuant to Miss. Code Ann. §15-1-13(1), the neighbor’s father’s act of erecting a fence did not establish that the property was exclusive to the neighbor; the neighbor’s act of cutting and planting pine trees on a portion of the property resulted in adverse possession, but where she did not cut or plant trees, she did not adversely possess that property. Cook v. Robinson, 924 So. 2d 592, 2006 Miss. App. LEXIS 173 (Miss. Ct. App. 2006).

A chancellor’s decision that the defendants in a quiet title action failed to establish adverse possession of commercial property would be affirmed with the exception of a strip of the property on which a warehouse had been used exclusively during at least a 10-year period. West v. Brewer, 579 So. 2d 1261, 1991 Miss. LEXIS 253 (Miss. 1991).

Person in adverse possession of land can claim title by adverse possession to such portion only as is actually and continuously used, cultivated or occupied adversely to owner of record title. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

Where one enters land without color of title, his title by adverse possession, if any, runs only to such part of the land as was actually held by him in possession or enclosed or otherwise actually and continuously occupied by him for the statutory period of ten years. Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391, 1949 Miss. LEXIS 347 (Miss. 1949).

If the title was void as to a part of the land conveyed, the occupation of that part to which grantee had title would not give the grantee constructive possession of other land included in deed but not owned by grantor. Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660, 1914 Miss. LEXIS 12 (Miss. 1914).

Cultivation of a part of a tract and acts of ownership over the remaining unenclosed portion without hindrance for ten years gives title to all. Gathings v. Miller, 76 Miss. 651, 24 So. 964, 1898 Miss. LEXIS 120 (Miss. 1898).

15. —Railroad right of way.

Where right of way for railroad purposes only was not abandoned until railroad sold its rights therein to plaintiff within ten years of suit to confirm his title to the land covered by such right of way, predicated on adverse possession, chancery court correctly sustained demurrers to the bill. Williams v. Patterson, 198 Miss. 120, 21 So. 2d 477, 1945 Miss. LEXIS 174 (Miss. 1945).

User of railroad right of way and cultivation as garden under claim of title gives title after 10 years. Mobile & O. R. Co. v. Strain, 125 Miss. 697, 88 So. 274, 1921 Miss. LEXIS 154 (Miss. 1921).

Title may be obtained to part of railroad right of way not necessary to business as common carrier. Mobile & O. R. Co. v. Strain, 125 Miss. 697, 88 So. 274, 1921 Miss. LEXIS 154 (Miss. 1921).

Running of trains over railroad held use of entire right of way in absence of inclosure by adverse claimant and adverse use. Alabama & V. R. Co. v. Joseph, 125 Miss. 454, 87 So. 421, 1921 Miss. LEXIS 97 (Miss. 1921).

To defeat the easement of a railroad company in lands in its right of way the possession must be distinctly hostile, and so manifested by acts inconsistent with the occupancy of the company, as fencing, etc. Wilmot v. Yazoo & M. V. R. Co., 76 Miss. 374, 24 So. 701, 1898 Miss. LEXIS 98 (Miss. 1898).

One obtaining adverse possession of a part of a railroad company’s right of way and excluding the company therefrom for ten years acquires title. Paxton v. Yazoo & M. V. R. Co., 76 Miss. 536, 24 So. 536, 1898 Miss. LEXIS 93 (Miss. 1898).

16. —Sixteenth section lands.

The statute of limitations does not run against the reversion in a sixteenth section during the existence of a lease thereof. Weiler v. Monroe County, 76 Miss. 492, 25 So. 352, 1898 Miss. LEXIS 141 (Miss. 1898).

The sale in fee of sixteenth sections has never been authorized by law in this state. Weiler v. Monroe County, 76 Miss. 492, 25 So. 352, 1898 Miss. LEXIS 141 (Miss. 1898).

17. Persons entitled to claim adversely.

One who relies upon a conveyance by deed is not precluded from claiming adversely possessed land even though the land description in the deed does not include contiguous land adversely possessed by the predecessor in title. Stallings v. Bailey, 558 So. 2d 858, 1990 Miss. LEXIS 157 (Miss. 1990).

Levee board’s claim of profit a’prendre which amounts to right of complete control of property is actually claim of title of land in fee, such that board must have complied with requirements of adverse possession, however, as board does not claim ownership to subject property, nor does board have statutory power to acquire title to land and therefore could not acquire fee title by adverse possession. McDonald v. Board of Mississippi Levee Comm'rs, 646 F. Supp. 449, 1986 U.S. Dist. LEXIS 18743 (N.D. Miss. 1986), aff'd, 832 F.2d 901, 1987 U.S. App. LEXIS 15499 (5th Cir. Miss. 1987).

A grantor may acquire title to land by adverse possession against his grantee providing the adverse possession is in such manner as to notify the grantee of the adverse possession. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

Children, whose ages ranged from 1 to 12 years at time of death of their father, who lived on land during lifetime of father and knew that after his death mother claimed it, who knew mother sold land, and who neither inquired nor discovered their interest in land until youngest child was 47 years of age, exercised such complete indifference to, and disregard of, their rights that they should not, in equity and good conscience, be permitted to prevail over purchaser in good faith, for sufficient consideration. Boyd v. Entrekin, 209 Miss. 51, 45 So. 2d 848, 1950 Miss. LEXIS 360 (Miss. 1950).

Possession of land by owner and mortgagor, or his grantees, during life of deed of trust, cannot form basis of claim to adverse possession by him, since mortgagor has right to retain possession of property until foreclosure sale under deed of trust. Duncan v. Mars, 44 So. 2d 529 (Miss. 1950).

Repeated requests made by person in possession to owner for purchase of land is answer to any contention of adverse claim, since it is an acknowledgment of superior title and claim of owner. Eddy v. Clayton, 44 So. 2d 395 (Miss. 1950).

Ordinarily parent cannot claim possession of land adversely to minor child but may do so where child is adult, married and living separate and apart from parent at time adverse possession begins. Randall v. Mitchell, 41 So. 2d 44 (Miss. 1949).

Possession by mortgagee under void deed of trust and claim of color of title under a tax deed which failed to describe the land, with subsequent possession consisting of occupancy of the premises through the person who owned the land at the time of the purported tax sale, did not sustain defendant’s claim of adverse possession and owner was entitled to decree canceling such claim as cloud upon his title. Heidelberg v. Duckworth, 206 Miss. 388, 40 So. 2d 179, 1949 Miss. LEXIS 269 (Miss. 1949).

18. —Tenant.

In view of evidence showing that defendants had recognized the validity of the title of complainants’ predecessors in interest and had occupied the land as tenants, the action of the chancellor in confirming title in complainants was not manifestly wrong, since such recognition by the defendants destroyed any claim of title by adverse possession prior to that time, and there was no showing of any rupture of such relationship, or notice thereof, for as much as ten years prior to the institution of the action. Delancey v. Davis, 229 Miss. 475, 91 So. 2d 286, 1956 Miss. LEXIS 628 (Miss. 1956).

Possession by defendant as lessee of 40 acres of 120-acre tract of land involved in partition suit, did not defeat defendant’s title by adverse possession to remaining 80 acres which he purchased at partition sale. Taylor v. Twiner, 195 Miss. 706, 16 So. 2d 31, 1943 Miss. LEXIS 179 (Miss. 1943).

Possession as a tenant is not adverse so as to give title thereby. Lucas v. New Hebron Bank, Inc., 181 Miss. 762, 180 So. 611, 1938 Miss. LEXIS 116 (Miss. 1938).

Grantee of life tenant, holding over after death of life tenant, was not in possession adverse to remaindermen, since such holding, being at sufference of the remaindermen was not inconsistent with the title and right to possession of the remaindermen. Thomasson v. Kinard, 153 Miss. 398, 121 So. 109, 1929 Miss. LEXIS 31 (Miss. 1929).

Adverse possession by a tenant runs from the time the landlord receives notice that the occupancy is hostile; and a tenant is not required to yield possession and again enter the premises before the statute will run in his favor. Greenwood v. Moore, 79 Miss. 201, 30 So. 609, 1901 Miss. LEXIS 39 (Miss. 1901).

19. —Cotenants, generally.

A possession by a cotenant in common with other owners is not exclusive possession for purposes of adverse possession. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

In a suit by cotenants to cancel as a cloud on their title the claims of cotenants which were purchased at a tax sale, the plaintiffs must establish their claim under the ten-year statute, before they can avail of any alleged laches as a defense to the suit. Smith v. Smith, 211 Miss. 481, 52 So. 2d 1, 1951 Miss. LEXIS 379 (Miss. 1951).

A claim of ownership conditioned upon the erroneous assumption that all of the cotenants were dead is not of such character as is required to vest title by adverse possession, especially as between tenants in common. Hurst v. J. M. Griffin & Sons, Inc., 209 Miss. 381, 46 So. 2d 440, 1950 Miss. LEXIS 402 (Miss. 1950).

The rule which prevents one tenant in common from purchasing an outstanding title to the common property and setting it up against his cotenant is founded upon the confidential relation that is presumed to exist between them, and has no application where the circumstances surrounding them negative any such relation, and show that they, though in law tenants in common, are not such in fact, and are asserting hostile claims against each other with reference to the common property. Ferguson v. Chancellor, 206 Miss. 518, 40 So. 2d 275, 1949 Miss. LEXIS 280 (Miss. 1949).

The statute does not run in favor of one claiming an undivided interest with others until there is claim of title as sole owner and possession in severalty by him or someone under whom he claims. Jonas v. Flanniken, 69 Miss. 577, 11 So. 319, 1891 Miss. LEXIS 95 (Miss. 1891).

20. — —Notice to.

Where, in an action to determine title to land, the record failed to show that two of the tenants in common had notice of the defendant cotenant’s adverse claims, there was no ouster as to them, and plaintiff, claiming through them, was adjudicated to be vested with their respective interests. 231 Miss. 461, 95 So. 2d 563.

Where one of the tenants in common was an out-of-state resident, and it was not shown that she knew that her cotenants were claiming to be the exclusive owners of the property, and there was nothing charging her with such notice, the cotenants did not acquire her one-eighteenth undivided interest in the property by adverse possession. 231 Miss. 461, 95 So. 2d 563.

The mere recording alone of a fee simple deed by a cotenant does not impart notice to other cotenants of an adverse claim to land by a cotenant. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

Where a purchaser of realty at a void foreclosure sale claimed title to that realty by adverse possession of a tenant, who was a tenant in common the fact that the purchaser paid taxes on the property although it is strong evidence of a claim of title, it did not suffice to give notice of the purchaser’s claim to the other cotenants. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

Tenant in common cannot acquire title against cotenant without notice; recorded deed held notice to cotenant of adverse claim. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

A tenant in common out of possession is entitled to assume that a cotenant in possession holds for all cotenants, until he is given knowledge to the contrary, or the equivalent thereof, which must be shown by clear and convincing evidence. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

It is not enough that the possession to convey title should be apparently adverse but must be such with actual notice to cotenants or shown by such acts of repudiation of their claim as are equivalent to actual notice. Hurst v. J. M. Griffin & Sons, Inc., 209 Miss. 381, 46 So. 2d 440, 1950 Miss. LEXIS 402 (Miss. 1950).

Silence of cotenants does not estop them from asserting their interest in realty in absence of showing of actual notice of adverse possession and ouster by other cotenant and they would not lose their title by mere abandonment over an extended period. Hurst v. J. M. Griffin & Sons, Inc., 209 Miss. 381, 46 So. 2d 440, 1950 Miss. LEXIS 402 (Miss. 1950).

One claiming entire interest in land under recorded instrument purporting to be deed from her father, and whose brothers and sisters, with knowledge of instrument, allowed her to remain in exclusive possession under claim of title without interference for more than fifteen years, is not required, as tenant in common with brothers and sisters, to give them notice of her exclusive claim in order to acquire title by adverse possession, since brothers and sisters had in fact all the notice that was necessary. McDonald v. Roberson, 204 Miss. 737, 38 So. 2d 189, 1948 Miss. LEXIS 401 (Miss. 1948).

21. — —Ouster.

A managing cotenant, in attempting to claim the interest of other cotenants by adverse possession, has the burden of proving ouster by clear and convincing evidence, since a confidential relationship exists between cotenants, and a cotenant who desires to terminate the relationship has a remedy of partition, or sale for division of proceeds in a proper case, and rather than trying to oust his cotenant and claim adversely, he should deal openly and forthrightly with his cotenants and avail himself of such remedy. Kennedy v. Bryant, 252 So. 2d 784, 1971 Miss. LEXIS 1200 (Miss. 1971).

In establishing that an ouster has occurred between relative cotenants not strangers to the title, followed by the required period of adverse possession, it is not enough to show acts of hostile possession which in other cases might constitute an adverse possession against a stranger, but the possessing cotenant must show actual notice to his cotenant, and the statute of limitations does not begin to run against a cotenant not in possession until the claim of ownership of the other cotenant is brought to his attention. Johnstone v. Johnson, 248 So. 2d 444, 1971 Miss. LEXIS 1470, 1971 Miss. LEXIS 1471 (Miss. 1971).

In an action to establish that an ouster has occurred between cotenants, the activities of the complainant’s brother on the property of their father from the time he came into possession, namely creating pasture land, building fences, digging ponds, and changing the course of a creek, were entirely consistent with the occupancy of a cotenant, and were in no sense notice to the complainant of adverse possession. Johnstone v. Johnson, 248 So. 2d 444, 1971 Miss. LEXIS 1470, 1971 Miss. LEXIS 1471 (Miss. 1971).

In an action brought by cotenants to confirm and establish their title to an undivided interest as cotenants in certain land as against claims of the defendant, another cotenant, who had purchased a tax title to the property, the purchasing cotenant could not claim adverse possession as against her cotenants, where there was no ouster of the cotenants such as would give them notice that her claim was adverse to their interest. Gavin v. Hosey, 230 So. 2d 570, 1970 Miss. LEXIS 1556 (Miss. 1970).

Where, in an action to determine title to land, the record failed to show that two of the tenants in common had notice of the defendant cotenant’s adverse claims, there was no ouster as to them, and plaintiff, claiming through them, was adjudicated to be vested with their respective interests. 231 Miss. 461, 95 So. 2d 563.

Before cotenant can effect ouster of other cotenants, ouster must have arisen from actual knowledge or by acts equivalent thereto. Hurst v. J. M. Griffin & Sons, Inc., 209 Miss. 381, 46 So. 2d 440, 1950 Miss. LEXIS 402 (Miss. 1950).

Deed from grantor, who had received conveyance of an undivided interest from one of five heirs of original patentee, of his “right, title and interest” was not sufficient assertion of complete title or domination such as to constitute constructive notice or effect an ouster of other heirs. Hurst v. J. M. Griffin & Sons, Inc., 209 Miss. 381, 46 So. 2d 440, 1950 Miss. LEXIS 402 (Miss. 1950).

Silence of cotenants does not estop them from asserting their interest in realty in absence of showing of actual notice of adverse possession and ouster by other cotenant and they would not lose their title by mere abandonment over an extended period. Hurst v. J. M. Griffin & Sons, Inc., 209 Miss. 381, 46 So. 2d 440, 1950 Miss. LEXIS 402 (Miss. 1950).

A recorded deed of conveyance by the purchaser at an invalid foreclosure sale to the mortgagor’s widow, along with the widow’s subsequent long continued possession, use and improvement of the land for over forty years and the failure of her children as tenants in common to assert any claim after attaining their majority, or to seek any accounting of rents and profits, or a partition for such a long time after their mother ceased to be a widow, constituted an ouster of the children as tenants in common and supported the mother’s claim of title by adverse possession. Alewine v. Pitcock, 209 Miss. 362, 47 So. 2d 147, 1950 Miss. LEXIS 400 (Miss. 1950).

Before one tenant in common may claim adverse possession as against his cotenant there must be an ouster of other cotenants such as will afford them notice that his claim is adverse to their interest. Howard v. Wactor, 41 So. 2d 259 (Miss. 1949).

Acts of ownership and continuous adverse possession for more than ten years by purchaser at foreclosure sale during which time purchaser repaired fences, improved houses, built houses, cultivated and used land, and paid taxes, amounted to complete ouster of his alleged cotenants, who, knowing of the foreclosure, moved off premises, and such possession overcame any presumption that title was being held for benefit of cotenants. Jones v. Hoover, 204 Miss. 345, 37 So. 2d 490, 1948 Miss. LEXIS 372 (Miss. 1948).

Mortgage by one tenant in common purporting to convey entire estate does not constitute ouster nor start running of statute against other cotenants, where possession not taken. Scottish-American Mortg. Co. v. Bunckley, 88 Miss. 641, 41 So. 502, 1906 Miss. LEXIS 194 (Miss. 1906).

The statute does not run in favor of a tenant in common until he has actually ousted his co-tenants, or done some act deemed by law equivalent thereto. Bentley v. Callaghan, 79 Miss. 302, 30 So. 709, 1901 Miss. LEXIS 66 (Miss. 1901).

22. — —Significance of recording or filing.

The mere recording alone of a fee simple deed by a cotenant does not impart notice to other cotenants of an adverse claim to land by a cotenant. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

The mere recording alone of a fee simple deed by a cotenant does not impart notice to other cotenants of an adverse claim to land by a cotenant. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

Tenant in common cannot acquire title against cotenant without notice; recorded deed held notice to cotenant of adverse claim. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625, 1954 Miss. LEXIS 641 (Miss. 1954), overruled, Quates v. Griffin, 239 So. 2d 803, 1970 Miss. LEXIS 1522 (Miss. 1970).

One claiming entire interest in land under recorded instrument purporting to be deed from her father, and whose brothers and sisters, with knowledge of instrument, allowed her to remain in exclusive possession under claim of title without interference for more than fifteen years, is not required, as tenant in common with brothers and sisters, to give them notice of her exclusive claim in order to acquire title by adverse possession, since brothers and sisters had in fact all the notice that was necessary. McDonald v. Roberson, 204 Miss. 737, 38 So. 2d 189, 1948 Miss. LEXIS 401 (Miss. 1948).

The fact that the original deed from the tenant in common was not placed on record until long after it was executed and that suit was begun by his cotenants within ten years after date of its filing is immaterial. Eastman, Gardiner & Co. v. Hinton, 86 Miss. 604, 38 So. 779, 1905 Miss. LEXIS 86 (Miss. 1905).

23. — —Particular cases.

Acquisition of one-half interest in property by adverse possession was not established where former wife’s occupancy of premises was not exclusive, being shared with husband; interest of former wife in property was at best homestead interest, her legal relationship with husband regarding title being analogous to that of co-tenants, which would have required effective communication of intent and legal ouster of husband from one-half interest in question, neither of which was shown. Davis v. Davis, 508 So. 2d 1062, 1987 Miss. LEXIS 2527 (Miss. 1987).

A son who entered upon land in 1899 after his marriage, and built a home and thereafter exercised every use over the property to which it was susceptible without any protest by either his father or brother during the father’s lifetime, possessed the land initially by color of right as a result of a presumptive parol gift from his father, which title ripened in him in 1909 by adverse possession, effectively divesting his father who died in 1912, so that the property in question did not descend to the father’s heirs in cotenancy; it is well settled that a claim of title under a parol gift or purchase, accompanied by entry and adverse holding, may ripen into an indefeasible title by the lapse of the statutory period of limitation. Thomas v. Collins, 253 So. 2d 824, 1971 Miss. LEXIS 1229 (Miss. 1971).

The actions of a managing cotenant in paying taxes on the property, having the land surveyed and the lines marked, selling timber therefrom, preventing trespass on the land by adjoining landowners, obtaining the services of the state forestry commission regarding the sale of timber, and improving the timber stand by hiring employees and cutting trees for that purpose, were entirely consistent with the legal right of a cotenant upon the land, and were not sufficient to constitute the equivalent of actual knowledge on the part of the other cotenant, so as to start the running of the statute of limitations for adverse possession against the other cotenant. Kennedy v. Bryant, 252 So. 2d 784, 1971 Miss. LEXIS 1200 (Miss. 1971).

Although a tenant in common, who in an action to determine title to land, asserted an interest of one-eighteenth of the whole tract, was chargeable with knowledge that his cotenants were claiming to be the sole owners, and exercising exclusive management and control over the land, the cotenants failed to acquire title as to the plaintiff by adverse possession. 231 Miss. 461, 95 So. 2d 563.

Even though it was assumed that a lumber company, who acquired a warranty deed to land from the father and brother in which the children had an interest, became a tenant in common with the children, evidence showing that the lumber company upon acquiring the deed went into immediate possession of the land, enclosed it with a fence, had land assessed and paid taxes thereon, had a caretaker to look after it, cut timber thereon, and claimed the land openly as its own, and the children for at least 18 years after they became of age came back and forth to their father’s old homestead just across the highway from the land, indicated that the children knew that the lumber company was in actual possession of the land and claiming full title thereto for a longer period than ten years. Avera v. Turner Lumber Co., 230 Miss. 123, 92 So. 2d 458, 1957 Miss. LEXIS 351 (Miss. 1957).

Co-heir’s purchase of land at tax sale and possession thereafter exclusively, peaceably, continuously, adversely, and notoriously for a period of 52 years established his title by adverse possession as against other coheirs, and verbal protests and objections by coheirs were insufficient to stop the running of the statute of limitations in his favor. Ferguson v. Chancellor, 206 Miss. 518, 40 So. 2d 275, 1949 Miss. LEXIS 280 (Miss. 1949).

Husband of tenant in common taking possession under void judicial sale and occupying with those under him for 10 years divests title of cotenants. Stewart v. Foxworth, 95 Miss. 442, 52 So. 354, 1909 Miss. LEXIS 311 (Miss. 1909).

Where one tenant in common of land conveyed the whole estate in fee, and the grantee entered, and he and his successors in title held exclusive possession, claiming thereunder the entire estate for more than ten years, the original cotenants not under disability will be barred. Eastman, Gardiner & Co. v. Hinton, 86 Miss. 604, 38 So. 779, 1905 Miss. LEXIS 86 (Miss. 1905).

24. — —Nonresidents.

Nonresident alien mortgagee obtaining possession under invalid sale through tenants, and holding possession and receiving rents for more than 10 years perfects title against mortgagor. Scottish American Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666, 1910 Miss. LEXIS 14 (Miss. 1910).

A nonresident may acquire title by adverse possession held by others for him. Absence from the state does not prevent the running of the statute, since ejectment can be brought against the tenant. Lindenmayer v. Gunst, 70 Miss. 693, 13 So. 252, 1893 Miss. LEXIS 61 (Miss. 1893).

25. Title or interest acquired.

Because the private road in question was surrounded and encompassed by the land owned by the property owners, all that the adverse possessors were entitled to was a prescriptive easement. Buford v. Logue, 832 So. 2d 594, 2002 Miss. App. LEXIS 685 (Miss. Ct. App. 2002).

Code 1942, §§ 709 and 710 are limitation statutes which may be used defensively only, as distinguished from Code 1942, § 711, which provides that 10 years’ possession vests full title, and which accordingly may be used affirmatively and defensively. Neal v. Teat, 240 Miss. 35, 126 So. 2d 124, 1961 Miss. LEXIS 423 (Miss. 1961).

The holder of the legal title, on completion of the period of adverse possession, is divested of all right, title and interest in the land, including the right of possession, which rights then become vested in the adverse holder. Hooper v. Walker, 201 Miss. 158, 29 So. 2d 72, 1947 Miss. LEXIS 381 (Miss. 1947).

A title gained by adverse possession is a new and complete title, not dependent upon or in any manner derived from, or in privity with, any former owner. Levy v. Campbell, 200 Miss. 721, 28 So. 2d 224, 1946 Miss. LEXIS 340 (Miss. 1946).

Ten years’ actual adverse possession under claim of ownership vests title in occupant. Hickingbottom v. Lehman, 124 Miss. 682, 87 So. 149, 1920 Miss. LEXIS 555 (Miss. 1920).

Adverse possession may be used defensively or as basis of bill to confirm title. Fant v. Williams, 118 Miss. 428, 79 So. 343, 1918 Miss. LEXIS 93 (Miss. 1918).

Where intention was to convey fee, but deed conveyed only life estate, grantee entering possession thereunder and holding for 10 years perfected title, parol evidence is admissible to show facts. Breland v. O'Neal, 88 Miss. 449, 40 So. 865, 1906 Miss. LEXIS 141 (Miss. 1906).

A grantor will be barred of all claim to land intended to be, but not actually conveyed, after ten years from the beginning of possession by the grantee. Moore v. Crump, 84 Miss. 612, 37 So. 109, 1904 Miss. LEXIS 86 (Miss. 1904).

On proper application equity will reform such a deed so as to make it convey the land intended to be conveyed. Moore v. Crump, 84 Miss. 612, 37 So. 109, 1904 Miss. LEXIS 86 (Miss. 1904).

And this is true under the general statute of limitation. Jones v. Brandon, 59 Miss. 585, 1882 Miss. LEXIS 167 (Miss. 1882).

The ten years’ occupation, as declared in the statute, vests a “full and complete title,” upon which the land can be recovered in ejectment, without further evidence than the facts showing such possession. Davis v. Bowmar, 55 Miss. 671, 1878 Miss. LEXIS 29 (Miss. 1878); Ford v. Wilson, 35 Miss. 490, 1858 Miss. LEXIS 50 (Miss. 1858); Ellis v. Murray, 28 Miss. 129, 1854 Miss. LEXIS 159 (Miss. 1854).

26. —Easement.

Because the private road in question was surrounded and encompassed by the land owned by the property owners, all that the adverse possessors were entitled to was a prescriptive easement. Buford v. Logue, 832 So. 2d 594, 2002 Miss. App. LEXIS 685 (Miss. Ct. App. 2002).

Evidence showing that defendant and her predecessors in title had used a strip of land adjoining her lot exclusively for driveway purposes for more than 10 years warranted the granting of an easement for driveway purposes. Patrick v. Myers, 234 Miss. 41, 104 So. 2d 894, 1958 Miss. LEXIS 458 (Miss. 1958).

Easement by prescription may be established by such use as business or pleasure may require and it is not necessary to show that the way has been in constant use, day and night. Browder v. Graham, 204 Miss. 773, 38 So. 2d 188, 1948 Miss. LEXIS 404 (Miss. 1948).

It is not essential to the creation of easement that dominant and servient tenements be adjacent, although an easement requires two distinct tenements, the dominant to which right belongs, and the servient upon which obligation is imposed. Browder v. Graham, 204 Miss. 773, 38 So. 2d 188, 1948 Miss. LEXIS 404 (Miss. 1948).

Use of way over defendant’s land, as means of ingress and egress to and from their home, by plaintiff, his predecessors in title, and their families, which continued for more than ten years, ripened into easement by prescription across defendant’s land. Browder v. Graham, 204 Miss. 773, 38 So. 2d 188, 1948 Miss. LEXIS 404 (Miss. 1948).

Right by prescription, growing out of use of way for more than ten years by plaintiff and his predecessors in title, to continue to use way is established by evidence that way was outlet to school, church and public road, its use was by car, by truck, by wagon and on foot as business or pleasure might direct, and that road was fairly well defined and continued in same location for more than ten years, except for occasional slight diversion because of some obstruction. Browder v. Graham, 204 Miss. 773, 38 So. 2d 188, 1948 Miss. LEXIS 404 (Miss. 1948).

Public user, and working and maintaining of roadway traversing defendants’ land by public authorities at public expense for 17 years, without objection of defendants, was sufficient to put landowners on notice that public authorities were asserting the right to deal with the road as part of the road system of the district, and to establish an easement for public road purposes by prescription through adverse user for the period prescribed by law, so as to preclude defendants’ right to obstruct such road. Armstrong v. Itawamba County, 195 Miss. 802, 16 So. 2d 752, 1944 Miss. LEXIS 335 (Miss. 1944).

City maintaining drain ditch for more than 10 years acquired right to maintain it but not to enlarge it or increase water flow. Sturges v. Meridian, 95 Miss. 35, 48 So. 620, 1909 Miss. LEXIS 229 (Miss. 1909).

Proprietor of land cannot claim easement by prescription in neighborhood road where his actions have been inconsistent with such a claim. Wills v. Reid, 86 Miss. 446, 38 So. 793, 1905 Miss. LEXIS 91 (Miss. 1905).

Public does not acquire rights by prescription in neighborhood road over which it has exercised no supervision and to which it has asserted no claim. Wills v. Reid, 86 Miss. 446, 38 So. 793, 1905 Miss. LEXIS 91 (Miss. 1905).

Title to a right of way may be acquired by prescription by ten years’ adverse occupancy, but the use must be claimed under color of right and must be such as to expose the party asserting it to an action if he wrongfully exercised it. Board of Sup'rs. v. Mastronardi, 76 Miss. 273, 24 So. 199 (Miss. 1898).

Ten years is the time in this state by which to acquire an easement in land. Alcorn v. Sadler, 71 Miss. 634, 14 So. 444, 1893 Miss. LEXIS 134 (Miss. 1893).

27. — — Predecessors in interest.

Remand in an action for encroachment and adverse possession was appropriate because the chancellor erred in failing to determine whether the evidence established that the predecessors in title adversely possessed the portions of the lot that included the areas in question: the parking lot, the fence, the shed, and the floor, which were not built until 2002. Jordan v. Fountain, 986 So. 2d 1018, 2008 Miss. App. LEXIS 14 (Miss. Ct. App.), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 380 (Miss. 2008).

28. Running of limitation period.

Property owners’ adverse possession claim failed because the owners were bound by the doctrine of collateral estoppel to the determination in a prior lawsuit that the subject property was a public road and that the county board of supervisors had not abandoned it. Furthermore, after the board of supervisors subsequently abandoned the road, less than the required 10 years ran before the owners brought their adverse possession claim. Smith v. Sims, — So.3d —, 2019 Miss. App. LEXIS 234 (Miss. Ct. App. May 28, 2019).

Subsequent grantees were entitled to summary judgment on the grantor’s claim of adverse possession because the grantor failed to present evidence to create a genuine issue of material fact as to whether the grantor adversely possessed or occupied the subject parcels of land continuously and uninterrupted for a period of ten years. Dorman v. Power, 203 So.3d 33, 2016 Miss. App. LEXIS 662 (Miss. Ct. App. 2016).

In addition to satisfying the other elements for adverse possession, a neighbor was in possession of the disputed property for at least ten years because the neighbor began possessing the disputed 7.79 acres in 1988 when it purchased 482 acres from the previous owner and began conducting various activities as if it rightfully owned the 7.79 acres until 2007, when the abutting landowners erected a fence. Roberts v. Young's Creek Inv., Inc., 118 So.3d 665, 2013 Miss. App. LEXIS 411 (Miss. Ct. App. 2013).

In property owners’ suit against their neighbors seeking to enjoin them from their adverse use of a common easement, the neighbors’ prior conveyance of a specifically described easement interrupted the adverse possession as it ended the claim of right as to the entirety of the easement strip. The fact that the neighbors continued in possession at best meant that a new period of possession had commenced; that period did not continue for 10 years. Tucker v. Long, 873 So. 2d 1064, 2004 Miss. App. LEXIS 446 (Miss. Ct. App. 2004).

Where a person is in adverse possession of lands and the mineral estate has not been severed from the surface estate, and the legal owner of the land attempts to convey the mineral estate, the adverse possession will continue as if there had been no conveyance of the mineral estate. Huddleston v. Peel, 238 Miss. 798, 119 So. 2d 921, 1960 Miss. LEXIS 465 (Miss. 1960).

Statute held to bar suit to remove an alleged cloud on title, a deed executed upon a sale for purposes of partition some forty years before, on ground that all parties in interest were not served and that land not shown therein to be incapable of partition in kind. Hollingsworth v. Central Oil Co., 236 Miss. 779, 112 So. 2d 518, 1959 Miss. LEXIS 376 (Miss. 1959).

Continued adverse possession provided by this section [Code 1942, § 711] does not begin to run against minors until the disability of minority has been removed. 231 Miss. 461, 95 So. 2d 563.

This section [Code 1942, § 711] has no application to a tax title claim by one cotenant against another, but cotenant must rely upon the ten-year adverse possessory statute. Wall v. Wall, 220 Miss. 642, 71 So. 2d 308, 1954 Miss. LEXIS 480 (Miss. 1954).

Where there was a suit to cancel and remove some alleged clouds from the title of property which was sold under a bond mortgage to satisfy an indebtedness owing to a Louisiana corporation, in liquidation, the fact that the suit was filed just two days before the completion of the bar of ten-year statute of limitations, should not bar the action because of laches. Enochs v. Mississippi Tower Bldg., Inc., 210 Miss. 676, 50 So. 2d 551, 1951 Miss. LEXIS 307 (Miss. 1951).

Where a dispute over a piece of land arose out of two overlapping deeds, conversations and expressions of good will and recognition of one another’s deeds by neighbors does not toll the statute of limitations and estop the assertion of title by adverse possession. Lott v. Sebren, 210 Miss. 99, 48 So. 2d 626, 1950 Miss. LEXIS 326 (Miss. 1950).

Where there was privity between appellees and their predecessor in title, appellees are entitled to tack their possession to that of their predecessor and to acquire title by adverse possession to small strip of land between an old fence line and the true boundary line although appellees were not themselves in possession for ten years. Ricketts v. Simmons, 44 So. 2d 537 (Miss. 1950).

Tax title purchaser claiming ten years’ adverse possession between April 7, 1930, and June 12, 1945, who leased land for oil and gas in 1940, whose claim to land was open and notorious in community, who rented land to various tenants from 1935 to 1948, with exception of period from 1938 to 1943, there being breaks in occupancy of land between tenants who cultivated small patches of open land, and who did not improve land, fence it or cut timber, failed to show continuous use of land for statutory period required. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Regardless of extent and quality of adverse possession, its period is tolled by sale of the land to State for taxes, and adverse possessor is remanded to period following sale to State on which to build up his prescriptive title. Winstead v. Winstead, 204 Miss. 787, 38 So. 2d 118, 1948 Miss. LEXIS 406 (Miss. 1948).

Title to land by adverse possession cannot be established in 1947, by tax receipts dated from 1931 to and including 1947 containing description of land, when land was sold to State for 1932 taxes and State issued patent to land in 1941 to purchaser other than individual claiming by adverse possession. Winstead v. Winstead, 204 Miss. 787, 38 So. 2d 118, 1948 Miss. LEXIS 406 (Miss. 1948).

Allegations that holder of third deed of trust on lands agreed to purchase land “for owners” on foreclosure of first deed of trust, that land was purchased in name of his wife and conveyed to wife of cotenant who executed three deeds of trust covering purchase price, all of which conveyances were recorded, are insufficient to show a fraudulent concealment such as to prevent running of statute of limitations in favor of holder of original third deed of trust who purchased property on foreclosure of last deed of trust. Jones v. Hoover, 204 Miss. 345, 37 So. 2d 490, 1948 Miss. LEXIS 372 (Miss. 1948).

Continuity of adverse possession is not interrupted by void sale for delinquent taxes. Downing v. Starnes, 35 So. 2d 536 (Miss. 1948).

Where the title of the State to tax forfeited land had matured for failure to redeem, the statute of limitations could not again begin to run until the land became the subject of private ownership. Cotten v. Cotten, 203 Miss. 316, 35 So. 2d 61, 1948 Miss. LEXIS 271 (Miss. 1948).

The execution and recording of a warranty deed by several cotenants of land to a stranger to the title set in motion an adverse claim against a cotenant who had not signed the deed, which was thereupon made available to the grantee, who, by implementing such claim by adverse possession through himself and his successors in title for a period beyond the statutory limitation, matured the disseisin into complete ownership. Davis v. Gulf Refining Co., 202 Miss. 808, 32 So. 2d 133, 1947 Miss. LEXIS 344 (Miss. 1947).

The filing of a bill by the record owner of land to remove defendant’s claim as a cloud upon its title, wherein defendant by cross bill asserted title thereto by adverse possession, stopped the running of the ten-year period necessary to acquire title by adverse possession. Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So. 2d 505, 1947 Miss. LEXIS 248 (Miss. 1947).

The statute of limitations once put in operation is not tolled by the death of the owner. Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578, 1942 Miss. LEXIS 40 (Miss. 1942).

In an action to confirm title and remove cloud, as against defendants’ claim of adverse possession and that the period of adverse possession was not interrupted by a decree in a former suit to which the defendants were made parties for confirmation of complainant’s tax title on the ground that the issue of adverse possession was not involved in the former suit, allegations in the former suit that the complainant was in possession and that there was no adverse possession, with defendants’ allegations to the contrary, put the claim of adverse possession in issue, and such issue was concluded by the decree in the former suit foreclosing further inquiry. Norton v. Graham, 185 Miss. 164, 187 So. 510, 1939 Miss. LEXIS 136 (Miss. 1939).

Where the owner of certain lots mortgaged one of them to the plaintiff and thereafter conveyed the other lot and a part of the mortgaged lot to the defendant, a period of adverse possession as to the part of the mortgaged lot conveyed and in dispute did not begin until after the foreclosure and purchase thereunder by the plaintiff, so that defendant did not obtain title by adverse possession to such disputed piece of land where less than ten years had elapsed from the mortgagee’s purchase until he filed his bill to confirm and quiet title, notwithstanding that the defendant had been in possession thereof for more than ten years. Seymour v. Lamb, 185 Miss. 37, 185 So. 824, 1939 Miss. LEXIS 113 (Miss. 1939).

Statute begins to run at end of redemption period, where owner retains possession. Carraway v. Lockard, 150 Miss. 704, 116 So. 599, 1928 Miss. LEXIS 130 (Miss. 1928).

Permissive holding should be deducted in computing adverse possession. Meyer v. Sea Food Co., 136 Miss. 868, 101 So. 702, 1924 Miss. LEXIS 173 (Miss. 1924).

Adverse possession by a tenant runs from the time the landlord receives notice that the occupancy is hostile; and a tenant is not required to yield possession and again enter the premises before the statute will run in his favor. Greenwood v. Moore, 79 Miss. 201, 30 So. 609, 1901 Miss. LEXIS 39 (Miss. 1901).

An action of ejectment to recover lands conveyed by a wife under duress is not barred if begun within ten years after the duress ceases to be operative. Allen v. Leflore County, 78 Miss. 671, 29 So. 161, 1900 Miss. LEXIS 136 (Miss. 1900).

It is only where a right of action accrues in this state and the person liable goes to reside elsewhere that the period of absence is not to be counted. Lindenmayer v. Gunst, 70 Miss. 693, 13 So. 252, 1893 Miss. LEXIS 61 (Miss. 1893).

29. Evidence, generally.

Where a grantor claims by adverse possession all or part of the property conveyed, proof of actual notice of that possession by the grantor to the grantee should be stronger than in the normal adverse possession case and should be clear beyond a reasonable doubt; the evidence should reveal that the grantee has been ousted from the property he received under the conveyance. Skelton v. Lewis, 453 So. 2d 703, 1984 Miss. LEXIS 1817 (Miss. 1984).

In boundary line dispute, evidence supported finding that location of line as found by court-appointed surveyor was true line and that an old fence line had not been recognized by the parties as the boundary so as to give defendants title by adverse possession to land between surveyed line and old fence line. Jenkins v. Thweatt, 42 So. 2d 95 (Miss. 1949).

As between parties sustaining parental and filial relations, possession of land of one by other is presumptively permissive or amicable, but this presumption is not conclusive and when facts are in evidence presumptions must disappear and yield to facts. Randall v. Mitchell, 41 So. 2d 44 (Miss. 1949).

Presumption that as between parties sustaining parental and filial relations, possession of land of one by other is permissive or amicable is not sufficient to overthrow direct and positive evidence that mother’s possession of daughter’s land was actual, open, notorious, exclusive, hostile, undisputed and under claim and honest belief of ownership continuous and uninterrupted for period of about eighteen years before she sold it; and purchaser is entitled to tack his possession onto that of the mother. Randall v. Mitchell, 41 So. 2d 44 (Miss. 1949).

Proof of ten years’ actual possession under claim of ownership will prima facie defeat recovery in ejectment on a tax title executed and operative more than ten years prior to the suit, since the possession and claim will be presumed to have been adverse to the tax deed. Graham v. Warren, 81 Miss. 330, 33 So. 71, 1902 Miss. LEXIS 150 (Miss. 1902).

30. —Deed.

Chancellor’s order confirming and quieting title in landowner was proper where landowner’s mother had claimed disputed property from 1945 until she deeded it to landowner in 1973; use of this property was exclusive and peaceful, continuous for 41 years, actual, open, and notorious, and under claim of right; evidence showed that disputed property was under fence for purpose of grazing cows from 1942 until mid-1960’s, and fence remained in repair well enough to keep cattle until at least 1972; it does not matter whether land claimed under adverse possession is within “call of the title deeds,” or is in same quarter section or section as land lies which is described in deed; since requirements of adverse possession had been established by fence around disputed property and continued use of property for more than 40 years, once title ripened by adverse possession it was not necessary that fence be standing, or even in existence, when suit was filed. Pieper v. Pontiff, 513 So. 2d 591, 1987 Miss. LEXIS 2832 (Miss. 1987).

Evidence showing that complainants entered into possession of parcel of land in 1942, under color of title by virtue of deed executed to them by a bank, and that complainants remained in possession of the land, claiming it as their own, and exercised acts of ownership on the land by cutting timber and pasturing cattle on the land, keeping the fences in state of repair, and paying taxes on the land for a period of 19 years, established complainants’ title by adverse possession. Bickham v. Bates, 246 Miss. 171, 150 So. 2d 138, 1963 Miss. LEXIS 433 (Miss. 1963).

Church, claiming under prior recorded deed which properly described the land therein by metes and bounds although reference to total acreage was erroneous, was entitled to have its title quieted thereto as against defendants claiming under a subsequent conveyance of the remainder of the quarter section from the same grantor, since defendants acquired no semblance or color of title to the church’s realty under the latter conveyance, and their plea of adverse possession was not sustained by proof that they claimed some of the land and that each of them pastured a cow thereon for as long as ten consecutive years. Miles v. Collinsville Methodist Church, 46 So. 2d 110 (Miss. 1950).

Proof of possession for 50 years and perfect chain of title back to uncle of patentee in 1861 raises presumption of lost deed from patentee to uncle. Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84, 1918 Miss. LEXIS 64 (Miss. 1918).

31. —Parol evidence.

Where intention was to convey fee, but deed conveyed only a life estate, grantee entering possession thereunder, and holding for 10 years perfected title, and parol evidence is admissible to show the facts. Breland v. O'Neal, 88 Miss. 449, 40 So. 865, 1906 Miss. LEXIS 141 (Miss. 1906).

32. —Burden of proof.

Chancellor properly denied plaintiffs’ claim against defendants for adverse possession under Miss. Code Ann. §15-1-13(1) because plaintiffs failed to show by clear and convincing evidence that all of the elements of adverse possession were met; the meager testimony created some confusion as to whether plaintiffs were discussing the full 120 acres of land owned by the parties or half of the acreage. Frazier v. Frazier, 31 So.3d 1218, 2009 Miss. App. LEXIS 251 (Miss. Ct. App. 2009), cert. denied, 31 So.3d 1217, 2010 Miss. LEXIS 177 (Miss. 2010).

To establish the exclusivity element of its claim of adverse possession of the road, business had to show its conduct afforded an unequivocal indication that it exercised dominion of a sole owner, not that it excluded others from use of the road. Lynn v. Soterra Inc., 802 So. 2d 162, 2001 Miss. App. LEXIS 525 (Miss. Ct. App. 2001).

In a case involving a claim of adverse possession where the party holds the property with co-tenants, the burden of proof is even greater. Bacot v. Duby, 724 So. 2d 410, 1998 Miss. App. LEXIS 954 (Miss. Ct. App. 1998).

Where persons claiming possession of land for more than 10 years admitted that complainants owned the record title to the property, the burden of proof was upon them to establish that they had obtained title by adverse possession, and they must show that the possession was adverse under a claim on right or ownership. Ford v. Rhymes, 233 Miss. 651, 103 So. 2d 363, 1958 Miss. LEXIS 427 (Miss. 1958).

Burden of proof is upon adverse claimant to establish by competent evidence what particular area was used, cultivated, fenced, or actually occupied by him and where such areas were located on the tract, and to do this in such a way as to enable the court to determine its location and in its decree establish the area to which title has ripened by adverse possession. Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391, 1949 Miss. LEXIS 347 (Miss. 1949).

Burden of proving continuous adverse possession for statutory period is on parties claiming title by adverse possession. Heidelberg v. Duckworth, 206 Miss. 388, 40 So. 2d 179, 1949 Miss. LEXIS 269 (Miss. 1949).

The burden is upon the former owner of land to which title has been gained by adverse possession, or any person claiming under him, who has anything to present as an exception or reservation. Levy v. Campbell, 200 Miss. 721, 28 So. 2d 224, 1946 Miss. LEXIS 340 (Miss. 1946).

33. —Particular cases, evidence sufficient.

Neighbors did not adversely acquire a narrow strip of owners’ adjoining property by adverse possession because the chancellor found that one of the owners gave the neighbors permission to use the strip of property. Furthermore, the neighbors’ occupation was temporary and limited, the owners paid taxes on the property, both parties accessed and used the property, and the owners removed a damaged chain link fence and kept their side of the fence cut. Winters v. Billings, — So.3d —, 2019 Miss. App. LEXIS 16 (Miss. Ct. App. Jan. 15, 2019).

Once the appellee property owner satisfied the elements of adverse possession under Miss. Code Ann. §15-1-13(1), title to the disputed parcel vested in him and in order for the appellant property owner to have established a superior claim to the disputed parcel, she would have had to have met all six of the elements of adverse possession by clear and convincing proof, which she failed to do. There simply was no necessity to reactivate appellee’s adverse-possession claim after the survey or the execution of the lease. Conliff v. Hudson, 60 So.3d 203, 2011 Miss. App. LEXIS 194 (Miss. Ct. App. 2011).

Finding that the appellee property owners adversely possessed the property at issue was appropriate under Miss. Code Ann. §15-1-13(1) because they met all the required elements of adverse possession as to the property at issue. appellees built their home on the property, they occupied it for over 10 years, and they had even conveyed two other parcels located on the property; those actions were sufficient to give notice to the world that they were claiming the land as their own. Pulliam v. Bowen, 54 So.3d 331, 2011 Miss. App. LEXIS 88 (Miss. Ct. App. 2011).

In an action to quiet title on the basis of adverse possession, where the evidence established that plaintiffs’ predecessor in title had continuously used a field road until defendants placed a blockade on the road claiming ownership but where, prior to this assertion of ownership, the predecessor had continuously used the road uninterrupted for approximately 50 years, the evidence supported a conclusion that plaintiffs and their predecessor had used the field road far in excess of the 10-year statutory requirement. Hill v. Johnson, 27 So.3d 426, 2009 Miss. App. LEXIS 448 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 63 (Miss. 2010).

Finding that plaintiffs proved the elements of adverse possession, Miss. Code Ann. §15-1-13, was affirmed, as there was substantial evidence to support the finding; for example, as to actual and hostile possession, plaintiffs testified that they had performed such activities as mowing, clearing snakes, and clearing underbrush of the property at issue. Sturdivant v. Todd, 956 So. 2d 977, 2007 Miss. App. LEXIS 55 (Miss. Ct. App. 2007).

Prescriptive easement was properly granted to an owner where he showed that a predecessor in interest had used a driveway for ingress and egress under claim of ownership, with actual possession, openly and notoriously, continuously and uninterrupted for more than 10 years, pursuant to Miss. Code Ann. §15-1-13. Arrechea Family Trust v. Adams, 960 So. 2d 501, 2006 Miss. App. LEXIS 784 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 412 (Miss. 2007).

Landowner, at the behest of its predecessor, was cutting timber on the disputed strip as early as 1987, and the rule of “tacking” as applied to adverse possession clearly allowed the time period the property was adversely possessed by the predecessor to combine with the time it was adversely possessed by the landowner in order to meet the statutory time period, as the parties were in privity; because there was evidence that the neighbors were aware of adverse activity on the disputed land as early as 1987, there was sufficiently substantial evidence to support the chancellor’s finding of satisfaction of the time period element of Miss. Code Ann. §15-1-13(1). McLendon v. Copiah Forest Prods., 926 So. 2d 260, 2006 Miss. App. LEXIS 262 (Miss. Ct. App. 2006).

Chancellor did not abuse her discretion in determining that the trustee had established adverse possession to disputed property where the trustee had inspected the property twice a year and painted the boundary lines on the disputed property the same way he painted the boundary lines on his other property and the neighbors did not offer proof that they had ever maintained any lines between their property and that of the trustee. Jackson v. Peoples Bank & Trust Co., 869 So. 2d 422, 2004 Miss. App. LEXIS 206 (Miss. Ct. App. 2004).

The evidence was sufficient to support the plaintiffs’ claim of adverse possession where the adverse owners’ family came into the property in dispute more than fifty years earlier, all witnesses at trial testified that the adverse owners had exclusive use of the property during that entire time, that they worked and played on the land, often inviting others to farm the land or cut hay there and the fact that the use of the land was not permissive was established by the testimony of the abutting owners, who both testified that neither had given the adverse owners permission to use the property. Magee v. Garland, 799 So. 2d 154, 2001 Miss. App. LEXIS 414 (Miss. Ct. App. 2001).

Evidence was sufficient to establish adverse possession where the land was used under claim of ownership and was actual or hostile; use of the land was quite open, notorious and visible as a fence was erected and the land was used for gardening and other visible operations; such activities continued for a continuous period long over the 10 year minimum; such uses were exclusive in that only the plaintiff’s family gained advantage from the land; and such occupation was peaceful during this time, drawing no objection from the defendant’s family. Cheatham v. Stokes, 760 So. 2d 795, 2000 Miss. App. LEXIS 91 (Miss. Ct. App. 2000).

Evidence was sufficient to require the court to consider the defendant’s claim of adverse possession where (1) defendant built a driveway on the disputed property for her family’s private and personal use, fully believing that it was on her property, (2) the driveway was clearly visible, and (3) the driveway had been in essentially the same place and had been used peacefully for 20 years or more. Simmons v. Cleveland, 749 So. 2d 192, 1999 Miss. App. LEXIS 490 (Miss. Ct. App. 1999).

Evidence established adverse possession of property along the boundary of the parties’ properties, notwithstanding the contention that the boundary between the parties’ lands had been in dispute since the early 1960’s, where the appellees maintained a fence surrounding the disputed land for over 40 years and held that land in their exclusive peaceful possession from the mid-1960’s until approximately 1992. Murray v. McRae, 741 So. 2d 1009, 1999 Miss. App. LEXIS 365 (Miss. Ct. App. 1999).

Adverse possession was established by evidence that possessors cleared land and planted grass, grazed cattle on land, repaired damage caused by hurricane, built and repaired fish pond, paid taxes in all but 2 years, frequently visited property, and made other improvements; titleholder’s nonpayment of taxes coupled with awareness that grass was planted and cattle were grazed on pastures gave rise to notice of adverse claim. Ramsey v. Copiah Bank, N.A., 678 So. 2d 637, 1996 Miss. LEXIS 208 (Miss. 1996).

Evidence that a landowner’s predecessor in title maintained a fence which encroached upon an adjoining lot between 6 1/2 and 7 feet for a 25-year period, that the predecessor used the yard up to the fence and regarded it as her own, and that the adjoining landowner’s predecessors in title likewise recognized the fence line as the property line throughout the 25 years, was sufficient to establish adverse possession of the property. Stallings v. Bailey, 558 So. 2d 858, 1990 Miss. LEXIS 157 (Miss. 1990).

Claim of adverse possession to wild, undeveloped accretion property on southern tip of island owned by claimants but within northern boundary of contestant’s plantation was established where the possessory acts of the claimants in planting tree sprigs and seedlings, granting oil, gas and mineral leases, issuing grazing and hunting leases, and personally hunting on the land each year constituted sufficient control and possession given the character of the property as unsuitable for habitation, cultivation or permanent useful improvement; exemption from requirement of open and notorious possession was established by actual notice of adverse claim given to contestant over 20 years prior to commencement of the action. Houston v. United States Gypsum Co., 652 F.2d 467, 1981 U.S. App. LEXIS 10834 (5th Cir. Miss. 1981).

Where adverse claimants placed a “brushed out” line on appellant’s land, posted signs at road entrances, annually grazed cattle thereon, and advised appellants in writing that they claimed lands in dispute, and appellant’s only action was to paint a so-called line which he considered to be the true line, the chancellor was warranted in determining that the adverse claimants had acquired title to the disputed area. Kayser v. Dixon, 309 So. 2d 526, 1975 Miss. LEXIS 1883 (Miss. 1975).

In an action to establish the correct lines to a residence lot, the chancellor’s finding, under conflicting evidence, that the lot owner and his predecessors in title had acquired title to the disputed strip of land by more than 30 years adverse possession, was affirmed. Myers v. Orr, 233 Miss. 498, 102 So. 2d 674, 1958 Miss. LEXIS 408 (Miss. 1958).

Evidence that school trustees and their predecessors in office were in actual adverse possession for more than ten years of a strip of land adjoining that deeded to them for so long as it should be used for school purposes sustained their claim of ownership thereof by adverse possession subject to the limitations prescribed in the deed. Kelly v. Wilson, 204 Miss. 56, 36 So. 2d 817, 1948 Miss. LEXIS 342 (Miss. 1948).

Agreement to convey land upon payment of sum in addition to payment disclosed by receipt for part of purchase money, followed by continuous occupancy and use of land for at least forty-four years, raises presumption that remainder of purchase price was paid and conveyance in fact executed, in the absence of any showing to the contrary. Rosenbaum v. Bohannon, 204 Miss. 9, 36 So. 2d 798, 1948 Miss. LEXIS 338 (Miss. 1948).

In the absence of an order of the board of supervisors, or other record evidence showing that the roadway had been designated as a public road, public user and working and maintaining of roadway across defendants’ land by public authorities at public expense for 17 years, without objection of defendants was sufficient to put them on notice that public authorities were asserting a right to deal with the road as part of the road system in the district, and to establish an easement for public road purposes by prescription to adverse user for the period prescribed by law, so as to preclude defendants from placing gates across or otherwise obstructing such road. Armstrong v. Itawamba County, 195 Miss. 802, 16 So. 2d 752, 1944 Miss. LEXIS 335 (Miss. 1944).

Description of road across defendants’ land in action to enjoin defendants from obstructing such road, designating the road to be “as it now runs across the lands of the defendants,” the proof showing without substantial conflict that it now runs along the same location where it had been traveled and used for more than 50 years, and stating the point of beginning, the direction of its course, and its terminus at a point on another public road therein named, at or near a certain residence, was a sufficient description of such road to show its location. Armstrong v. Itawamba County, 195 Miss. 802, 16 So. 2d 752, 1944 Miss. LEXIS 335 (Miss. 1944).

Although evidence was conflicting as to whether fence enclosing land adversely claimed was continuously kept up by repairs in such condition as to exclude cattle, it was sufficient to show that fence was amply sufficient during a continuous period of ten years to fly the flag over the land and put the true owner on notice that the land within the fence was being held under an adverse claim of ownership, and when taken in connection with other facts, title by adverse possession was substantiated. Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 16 So. 2d 24, 1943 Miss. LEXIS 176 (Miss. 1943).

Showing that land was deeded to one or two remote grantors in 1891 and continuous possession had since under claim of ownership with complainant’s acquiescence, established title. Hammond v. Cowart, 52 So. 451 (Miss. 1910).

34. — —Evidence insufficient.

Tax sale purchaser did not prove adverse possession of the subject land because clear and convincing evidence did not show (1) actual or hostile possession by acts to control the property’s use, (2) open, notorious, and visible occupation sufficient to give the true owner notice, (3) continuous and uninterrupted occupation for ten years when both the purchaser and the true owner claimed to have been on the property regularly, or (4) absence of a breach of the peace. Orcutt v. Chambliss, 243 So.3d 757, 2018 Miss. App. LEXIS 23 (Miss. Ct. App. 2018).

Property owner failed to establish, by clear and convincing evidence, each element of his adverse-possession claim because a road was not as obvious as represented in photographs, a “mud pit” had not come into being until after 2006, and the original complaint was filed in 2013, within the prescribed ten-year statutory period to claim adverse possession; though ATV use had been visible, continuous, and uninterrupted, it had not been present for the requisite ten years prescribed by statute. O'Neal v. Blalock, 220 So.3d 234, 2017 Miss. App. LEXIS 240 (Miss. Ct. App. 2017).

Clear and convincing evidence did not show alleged adverse possessors met requirements to establish adverse possession because the credible evidence showed (1) the alleged possessors did not regularly visit or use the property, (2) the possessors’ use of a house on the property, when living in the house, was sporadic, (3) the possessors’ use of the property for recreation or rental purposes was not exclusive, (4) the possessors did not show the possessors’ family’s hostile possession of the property, (5) testimony was conflicting on the open, notorious, and visible element, and (6) there was no evidence the possessors lived on the property for ten consecutive years. Rester v. Greenleaf Res., Inc., 198 So.3d 472, 2016 Miss. App. LEXIS 506 (Miss. Ct. App. 2016).

Judgment finding that plaintiffs failed to sustain their claim that they had adversely possessed two sections of property was affirmed where (1) simply because plaintiffs purchased property in 1991 did not automatically mean that they held property other than that which was described in the 1991 deed under a claim of ownership; and (2) the mere existence of a fence near the actual boundary line did not establish that the fence was the accepted boundary between the properties. Niebanck v. Block, 35 So.3d 1260, 2010 Miss. App. LEXIS 265 (Miss. Ct. App. 2010).

In their appeal, appellees argued that they had adversely possessed parcel 2B even though they held title to parcel 2B; there was no specific testimony regarding appellants’ attempt to adversely possess this parcel, and thus the court reversed the determination and rendered judgment to show that appellees were the record titleholders of parcel 2B. Nelson v. Bonner, 13 So.3d 880, 2009 Miss. App. LEXIS 466 (Miss. Ct. App. 2009).

Testimony presented established appellees’ ownership of the area near one of appellant’s mobile home, but there was no clear and convincing evidence that parcel 2A was adversely possessed by appellees under Miss. Code Ann. §15-1-13(1). Nelson v. Bonner, 13 So.3d 880, 2009 Miss. App. LEXIS 466 (Miss. Ct. App. 2009).

Neighbor whose land abutted a church’s land failed to show that its possession of the land by allowing its lessee’s cows to graze there was hostile or adverse to the church’s interest as required by Miss. Code Ann. §15-1-13, because the neighbor did nothing to eject the church or its surveyors and took no other hostile action. Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So. 2d 826, 2008 Miss. LEXIS 591 (Miss. 2008).

Appellants failed to meet their burden to establish title by adverse possession under Miss. Code Ann. §15-1-13 of adjacent property because there was substantial credible evidence that appellants’ use of the disputed property was not exclusive in that both appellants and the claimants had used the property during the 10-year period. Riverland Plantation P'ship v. Klingler, 942 So. 2d 294, 2006 Miss. App. LEXIS 848 (Miss. Ct. App. 2006).

Denial of an adverse possession claim was affirmed because appearing occasionally to inspect the land and allowing a fence to fall into disrepair were insufficient for adverse possession under Miss. Code Ann. §15-1-13. Askew v. Reed, 910 So. 2d 1241, 2005 Miss. App. LEXIS 618 (Miss. Ct. App. 2005).

Neighbor failed to establish any of the elements of adverse possession under Miss. Code Ann. §15-1-13 with regard to the land parcel at issue, where the owner of the parcel had permitted the neighbor’s predecessor to build a road on the parcel, the owner had prohibited the neighbor’s loggers from removing trees from the parcel, and the owner tore down a new fence that was built by the neighbor on the parcel to replace an old fence that was near the boundary line between the properties. Scrivener v. Johnson, 861 So. 2d 1057, 2003 Miss. App. LEXIS 1196 (Miss. Ct. App. 2003).

Where the neighbor cited Miss. Code Ann. §95-5-10 as authority for the argument that any person who took a tree without the consent of the owner was liable in the amount double the fair market value of the tree, the neighbor was not entitled to such damages from the owner; the neighbor was not the owner of the parcel at issue, because the neighbor’s adverse possession claim under Miss. Code Ann. §15-1-13 failed. Scrivener v. Johnson, 861 So. 2d 1057, 2003 Miss. App. LEXIS 1196 (Miss. Ct. App. 2003).

Appellants did not point to any specific acts by them or their predecessors in title which would satisfy the requirements for adverse possession of disputed property after the change in a river’s channel, especially as the disputed property was assessed to the appellee and it had consistently paid the taxes. Cox v. F-S Prestress, Inc., 1999 Miss. App. LEXIS 719 (Miss. Ct. App. July 20, 1999).

The plaintiff was not entitled to a prescriptive easement where her use of a road across the defendants’ property was permissive and remained so until the defendants informed her that she would no longer be allowed to use the easement. Sharp v. White, 749 So. 2d 41, 1999 Miss. LEXIS 272 (Miss. 1999).

Evidence was insufficient to establish plaintiff’s adverse possession based on the location of a fence erected many years earlier since (1) the plaintiff failed to put the defendant on notice that she claimed ownership of the tract of land, and (2) the defendant had allowed the plaintiff’s predecessor-in-title to erect the fence east of the disputed property and on his own land. Stringer v. Robinson, 760 So. 2d 6, 1999 Miss. App. LEXIS 500 (Miss. Ct. App. 1999).

Evidence was insufficient to show adverse possession of property extending the edge of a ditch which was wholly within the plaintiff’s property where the defendant’s claim of possession was based on his storage of junk cars and his occasional parking of trucks on the property, his mowing and gardening of the property, the plaintiff took immediate action against the defendant when the latter moved three houses onto the property. Walker v. Murphree, 722 So. 2d 1277, 1998 Miss. App. LEXIS 917 (Miss. Ct. App. 1998).

A chancellor committed manifest error by concluding that a county had acquired a public easement by prescription across a private road under §15-1-13 where there was no record of any official action taken by the county board of supervisors to make the road public, and, though individual members of the board of supervisors were permitted to testify as to whether the road was private or public, no board minutes were offered into evidence. Myers v. Blair, 611 So. 2d 969, 1992 Miss. LEXIS 838 (Miss. 1992).

The evidence was insufficient to support a finding of ownership of land by adverse possession, even though the alleged adverse possessor claimed that he had stored “junk” consisting of a washing machine, tractor and tractor parts, on the land in question for well over 10 years, where the landowner strongly objected to a fence as soon as it was erected by the alleged adverse possessor. Rawls v. Parker, 602 So. 2d 1164, 1992 Miss. LEXIS 316 (Miss. 1992).

A claimant failed to establish a prima facie case of adverse possession of wild swamp land where no surveys were run, no posted signs were put up, no fences were constructed, no timber was cut, no taxes were paid on the property by the claimants, no written documents describing the property were ever recorded, and the only evidence of possession was that the claimant walked on the land “several times.” Holliman v. Charles L. Cherry & Assoc., Inc., 569 So. 2d 1139, 1990 Miss. LEXIS 204 (Miss. 1990).

Evidence of old barbed wire fence which adverse claimant claims to have helped grandfather patch and repair but which claimant concedes has subsequently fallen into state of disrepair or disappeared altogether is insufficient evidence upon which to base adverse possession claim. Davis v. Clement, 468 So. 2d 58, 1985 Miss. LEXIS 2037 (Miss. 1985).

Evidence that the father of adverse claimant, with permission of the then owner, built a fence around the disputed acreage in 1907, while title thereto was in the State, and for some time afterwards the fence was not kept in repair and neighborhood cattle grazed at will thereon after crops were gather, and claimant had failed to have the property assessed for taxes, did not show exclusive possession in the adverse claimant as against the rights of purchaser under a valid tax sale. Harmon v. Buckwalter, 233 Miss. 761, 102 So. 2d 895, 1958 Miss. LEXIS 438 (Miss. 1958).

The chancellor did not err in dismissing with prejudice a proceeding by a landowner to confirm title to two small parcels of land adjoining his 40-acre tract on the ground that he had acquired title thereto by adverse possession as against the adjoining landowner, where the adverse claimant did not erect any improvements upon the disputed land, or cut the timber on the land, but merely cultivated some portion thereof part of the time, and the zigzag fence, erected by claimant, had been strung on trees, bushes and poles and had not been kept in repair. Mason v. Gaddis Farms, Inc., 230 Miss. 666, 93 So. 2d 629, 1957 Miss. LEXIS 408 (Miss. 1957).

Evidence was insufficient to show that cotenants had divested one of their cotenants of her record title to one-half of the surface and three-tenths of the minerals by an ouster and adverse possession for more than ten years. Anderson v. Boyd, 229 Miss. 596, 91 So. 2d 537, 1956 Miss. LEXIS 642 (Miss. 1956).

Evidence supported the chancellor’s finding that grantor’s re-entry into land was, in the outset, permissive, and the grantor was a tenant and had paid rent as late as September 10, 1945, and his claim to adverse possession had not equalled the necessary period of ten years before the action was filed by the widow of his grantee. Walker v. McLaurin, 229 Miss. 425, 90 So. 2d 857, 1956 Miss. LEXIS 621 (Miss. 1956).

Complainant entering under invalid tax deed failed to meet burden of proof to establish ten years adverse possession where evidence disclosed that no use was made of the land after tax sale except cultivation of small patches, that land was unimproved, and that there was no actual occupancy of the land by anyone. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Proof by adverse claimant to 40-acre tract that he resided thereon in a house which he constructed, had a garden and potato patch, had at one time fenced about two acres thereof, that the remainder of the tract was second growth timber, which he allegedly guarded against fire and trespassers, without any proof as to the location of his house or the two acres fenced by him on the tract, was insufficient to establish title by adverse possession, it also appearing that taxes were paid by record owner. Page v. O'Neal, 207 Miss. 350, 42 So. 2d 391, 1949 Miss. LEXIS 347 (Miss. 1949).

Evidence was insufficient to establish that defendant was in adverse possession of an adjacent tract of land for the requisite period of ten years where there was no evidence that defendant’s predecessor in title ever made claim to the land in question, although there was evidence to show that defendant as tenant of such predecessor and without its knowledge cultivated the land in question. Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So. 2d 505, 1947 Miss. LEXIS 248 (Miss. 1947).

In suit to quiet title, filed in 1934, evidence that from 1920 to 1924 and from 1928 to 1931, defendant’s predecessors recognized complainant’s predecessor and complainant as landlords and paid rent, did not establish claim to title through adverse possession, allegedly beginning in 1917. Lucas v. New Hebron Bank, Inc., 181 Miss. 762, 180 So. 611, 1938 Miss. LEXIS 116 (Miss. 1938).

35. Instructions.

In ejectment, under conflicting evidence, erroneous instruction that defendant’s adverse possession must be undisputed held not cured by instruction that defendant should have verdict regardless of other facts in case if he has actual, uninterrupted, hostile, and adverse possession. May v. Culpepper, 177 Miss. 811, 172 So. 336, 1937 Miss. LEXIS 170 (Miss. 1937).

36. Miscellaneous.

Trial court improperly found that siblings did not acquire title to property by adverse possession because it erred in limiting its focus to the period of time after the date of a corporation’s purchase; further inquiry was crucial in determining whether the siblings adversely possessed the disputed property at any point prior to the corporation’s purchase of the land. Rester v. Greenleaf Res., Inc., 160 So.3d 743, 2015 Miss. App. LEXIS 188 (Miss. Ct. App. 2015).

Although not addressed in the pleadings for a boundary line dispute, because evidence was heard on an adverse possession claim, the claim was tried by consent and the chancellor should have ruled on the claim in the judgment. Stewart v. Graber, 754 So. 2d 1281, 1999 Miss. App. LEXIS 711 (Miss. Ct. App. 1999).

Period of adverse possession by remainderpersons could begin running against interests of third parties prior to date outstanding life estate on property was removed; life tenant’s possession was hostile as to third parties and could be tacked on to remainderperson’s interest. Ramsey v. Copiah Bank, N.A., 678 So. 2d 637, 1996 Miss. LEXIS 208 (Miss. 1996).

A statement made by a record owner’s predecessor in title to an adverse claimant that he owned the land in question and that he wanted to get the matter settled so that there would be no question about the boundary line was insufficient to negate the claimant’s adverse possession of the property or to establish that his possession was with the permission of the predecessor in title where the claimant never wavered in his position that he owned the land in dispute, and the predecessor in title did nothing to interfere with the claimant’s possession and claim of ownership of the land. Rice v. Pritchard, 611 So. 2d 869, 1992 Miss. LEXIS 784 (Miss. 1992).

Neither party claiming ownership to a disputed parcel of land established title by adverse possession where both parties constructively possessed the land by their deeds, but the possession of each party against the other, if adverse, was inexplicably intermittent, or alternated with use by the true owner, so that both parties failed to prove hostile and exclusive possession of the land to which each held record title for a period of 10 years. Blankinship v. Payton, 605 So. 2d 817, 1992 Miss. LEXIS 593 (Miss. 1992).

The party asserting adverse possession as the basis for other claim of title has the burden of proof on the issue. Roy v. Kayser, 501 So. 2d 1110, 1987 Miss. LEXIS 2280 (Miss. 1987).

Chancellor is the trier of facts and his determination that parties had not established adverse possession claim to land would not be overturned on appeal where not manifestly wrong. Savage v. Parrish, 488 So. 2d 1342, 1986 Miss. LEXIS 2476 (Miss. 1986).

In an action by a husband and a wife to remove clouds upon their property title and for injunctive relief, the trial court erred in concluding that the defendants had failed to plead and prove adverse possession where the defendants had claimed title to the area in question by deed and had testified that they had used the disputed property for 25 years, erecting a storage shed and cultivating a garden thereon; although the defendants did not seek by cross-bill to cancel the claim of the husband and the wife to the property and confirm and quiet title in themselves, the allegations in their answer sufficiently raised the defense of adverse possession. Pittman v. Simmons, 408 So. 2d 1384, 1982 Miss. LEXIS 1856 (Miss. 1982).

Sections 716 and 717, Code of 1942, were inapplicable to an action to determine ownership of land in which the plaintiffs claimed an undivided one half interest, and in which defendants, who were successors in interest to a tenant in common who had also acquired tax title to the land, claimed title through adverse possession and laches; but the parties’ rights were to be tested by the ten-year statute of limitations. 231 Miss. 461, 95 So. 2d 563.

Ordinarily ignorance of his or her legal rights by a person against whom land is claimed by adverse possession is no defense against the running of the statutes of limitations. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

Title by adverse possession, set up as defense to claim of title by another, will not be adjudicated affirmatively in the absence of a cross-bill. Downing v. Starnes, 35 So. 2d 536 (Miss. 1948).

Any judgment adjudging plaintiff in an action to remove cloud from his title to be the owner of the land as against one claiming by adverse possession is not binding as against a third person not made a party to the suit who might have acquired a good and perfect title by 10 years’ adverse possession. Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So. 2d 505, 1947 Miss. LEXIS 248 (Miss. 1947).

Continuity of adverse possession is not broken by temporary changes in the actual occupancy of the land between the time of the removal of one tenant and the entry of another. Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So. 2d 227, 1946 Miss. LEXIS 354 (Miss. 1946).

RESEARCH REFERENCES

ALR.

Occupancy of premises by both record owner and another as notice of title or interest of latter. 2 A.L.R.2d 857.

Adverse possession by religious society. 4 A.L.R.2d 123.

Adverse possession: Mortgagee’s possession before foreclosure as barring right of redemption. 7 A.L.R.2d 1131.

Change in party after statute of limitations has run. 8 A.L.R.2d 6.

Title by adverse possession as affected by recording statutes. 9 A.L.R.2d 850.

Taking adverse possession of area not within description of deed or contract. 17 A.L.R.2d 1128.

Adverse possession: Sufficiency, as regards continuity, of seasonable possession other than for agricultural or logging purposes. 24 A.L.R.2d 632.

Estoppel to rely on statute of limitations. 24 A.L.R.2d 1413.

Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants. 32 A.L.R.2d 1214.

Acquisition of title to mines or minerals by adverse possession. 35 A.L.R.2d 124.

Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale. 38 A.L.R.2d 348.

Adverse possession of landlord as affected by tenant’s recognition of title of third person. 38 A.L.R.2d 826.

Grantor’s possession as adverse possession against grantee. 39 A.L.R.2d 353.

Reputation as to ownership or claim as admissible on question of adverse possession. 40 A.L.R.2d 770.

Acquisition of title to ground through adverse possession by cemetery or graveyard authorities. 41 A.L.R.2d 925.

Adverse possession under parol gift of land. 43 A.L.R.2d 6.

Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs. 43 A.L.R.2d 1061.

Title by or through adverse possession as marketable. 46 A.L.R.2d 544.

Tax sales or forfeitures by or to governmental units as interrupting adverse possession. 50 A.L.R.2d 600.

Judgment or decree as color of title. 71 A.L.R.2d 404.

Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period. 80 A.L.R.2d 1095.

Adverse possession involving ignorance or mistake as to boundaries-modern views. 80 A.L.R.2d 1171.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Adverse possession based on encroachment of building or other structure. 2 A.L.R.3d 1005.

When does cause of action accrue, for purposes of statute of limitations, against action based upon encroachment of building or other structure upon land of another. 12 A.L.R.3d 1265.

Acquisition of title to land by adverse possession by state or other governmental unit or agency. 18 A.L.R.3d 678.

Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession. 48 A.L.R.3d 818.

Use of property by public as affecting acquisition of land by adverse possession. 56 A.L.R.3d 1182.

Owner’s surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession. 76 A.L.R.3d 1202.

Adverse possession between cotenants who are unaware of cotenancy. 27 A.L.R.4th 420.

Grazing of livestock, gathering of natural crop, or cutting of timber by record owner as defeating exclusiveness or continuity of possession by one claiming title by adverse possession. 39 A.L.R.4th 1148.

Scope of prescriptive easement for access (easement of way). 79 A.L.R.4th 604.

Am. Jur.

3 Am. Jur. 2d, Adverse Possession §§ 1, 3, 5 et seq.

1A Am. Jur. Pl & Pr Forms (Rev), Adverse Possession, Forms 1 et seq; Form 2.1 (complaint, petition, or declaration – hostile possession for longer than statutory period – another form); Form 73.1 (complaint, petition, or declaration-boundary line dispute-construction of fence).

1A Am. Jur. Legal Forms 2d, Adverse Possession §§ 11:9 et seq. (notices).

1 Am. Jur. Proof of Facts, Adverse Possession, Proof No. 1 (actual possession); Proof No. 2 (open and notorious character of possession); Proof No. 4 (exclusiveness of possession).

28 Am. Jur. Proof of Facts 2d 703, Permissive Possession or Use of Land.

39 Am. Jur. Proof of Facts 2d 261, Acquisition of Title to Property by Adverse Possession.

2 Am. Jur. Proof of Facts 3d 125, Establishment of Private Prescriptive Easement.

2 Am. Jur. Proof of Facts 3d 197, Establishment of Public Prescriptive Easement.

Cross References —

Proceedings to confirm tax title, see §11-17-1.

Suits to cancel tax title, see §15-1-17.

Three-year general statute of limitations, see §15-1-29.

JUDICIAL DECISIONS

1. In general.

2. Lands subject.

3. Defects subject to bar.

4. Actual occupation defined.

5. —Applicability.

6. —Purpose.

7. —Requirements.

8. —Particular cases.

9. Persons who may invoke bar.

10. Persons affected.

11. Running of limitation period.

12. —Redemption.

13. Evidence.

14. Pleading.

1. In general.

Where the public has enjoyed access to waters for more than 10 consecutive years, those waters belong to the state by adverse possession, to be held in trust for the people. Waters used by the public under a claim of right, openly, notoriously, peacefully, continuously and uninterrupted for more than 10 years become public and, once public, such waters may not be lost by prescription. Dycus v. Sillers, 557 So. 2d 486, 1990 Miss. LEXIS 8 (Miss. 1990).

The 3-year possession statute was intended to cut off the right to assert the invalidity of the tax sale. Yocom v. Patton, 277 So. 2d 110, 1973 Miss. LEXIS 1405 (Miss. 1973).

The tax collector’s certified list of lands sold for taxes is a conveyance under this statute. Yocom v. Patton, 277 So. 2d 110, 1973 Miss. LEXIS 1405 (Miss. 1973).

This section [Code 1942, § 716] and Code 1942, § 717, were inapplicable to an action to determine ownership of land in which the plaintiffs claimed an undivided one half interest, and in which defendants, who were successors in interest to a tenant in common who had also acquired tax title to the land, claimed title through adverse possession and laches; but the parties’ rights were to be tested by the ten-year statute of limitations. 231 Miss. 461, 95 So. 2d 563.

Where minerals had been severed from the surface, and defendants, claiming under a color of title of a void tax deed, although exercising acts of ownership of which the surface was susceptible, had never taken actual possession of any of the minerals, they did not acquire rights to the minerals by adverse possession, so that plaintiffs who held mineral rights to the land through inheritance from the grantor of the surface rights did not lose their rights to the minerals by limitations or laches. White v. Merchants & Planters Bank, 229 Miss. 35, 90 So. 2d 11, 1956 Miss. LEXIS 583 (Miss. 1956).

The only conveyance which the tax collector executes or is authorized to execute is his certified list of lands sold for taxes. Powe v. Brantley, 210 Miss. 627, 50 So. 2d 229, 1951 Miss. LEXIS 300 (Miss. 1951).

The word conveyance as used in § 716, Code of 1942, which provides that three years actual occupation of land held under a conveyance by a tax collector shall bar suit to recover such land, does not necessarily mean a deed of conveyance to be executed by the chancery clerk under § 9958, Code of 1942 providing for execution of deeds of conveyance to individuals purchasing land at tax sales. Powe v. Brantley, 210 Miss. 627, 50 So. 2d 229, 1951 Miss. LEXIS 300 (Miss. 1951).

Three years of actual occupation by tax title purchaser divests the holder of the legal title of all right, title and interest in the land. Hooper v. Walker, 201 Miss. 158, 29 So. 2d 72, 1947 Miss. LEXIS 381 (Miss. 1947).

The statute [Code 1880, § 539] applies to sales made before as well as after its enactment, and to apparent as well as real delinquents. Patterson v. Durfey, 68 Miss. 779, 9 So. 354 (Miss. 1891), overruled, Hoskins v. Illinois C. R. Co., 78 Miss. 768, 29 So. 518, 1901 Miss. LEXIS 134 (Miss. 1901).

As to the curative effect of statutes like Code 1942, § 716. Sigman v. Lundy, 66 Miss. 522, 6 So. 245, 1889 Miss. LEXIS 142 (Miss. 1889); Metcalfe v. Perry, 66 Miss. 68, 5 So. 232, 1888 Miss. LEXIS 62 (Miss. 1888); Nevin v. Bailey, 62 Miss. 433, 1884 Miss. LEXIS 99 (Miss. 1884); Gibson v. Berry, 66 Miss. 515, 6 So. 325, 1889 Miss. LEXIS 140 (Miss. 1889).

The statute [Code 1880, § 539] was never intended to defeat a subsequently acquired tax-title. Lewis v. Siebles, 65 Miss. 251, 3 So. 652, 1887 Miss. LEXIS 48 (Miss. 1887).

2. Lands subject.

Title and ownership of land does not depend upon the validity or invalidity of the tax sales and the Forfeited Tax Land Patents which were subsequently acquired since if the sales were legally and validly made then the titles that are derived through the Forfeited Tax Land Patents are good under §15-1-15 and, on the other hand, if one or more of the tax sales was invalid or illegal then title to the lands in question remained in individuals and thereby was subject to acquisition by purchasers through adverse possession under §15-1-13. United States v. 613.86 Acres of Land, 507 F. Supp. 327, 1980 U.S. Dist. LEXIS 16079 (N.D. Miss. 1980).

Where a party enters into the possession of land under color of title, he is not considered as a mere disseizor, and confined to the part of premises in his actual occupancy, but his claim extends to all the lands embraced in the deed under which he claims. Smith v. Cook, 213 Miss. 876, 58 So. 2d 27, 1952 Miss. LEXIS 437 (Miss. 1952).

Neither this section [Code 1942, § 716] nor the two-year statute of limitations provided by Code 1942, § 717, has any application to a tax title claim by one cotenant against another. Smith v. Smith, 211 Miss. 481, 52 So. 2d 1, 1951 Miss. LEXIS 379 (Miss. 1951).

A conveyance from the chancery clerk is necessary to transfer title to the tax purchaser, where the sheriff and the tax collector’s list of tax sale has been duly made and filed with the clerk. Powe v. Brantley, 210 Miss. 627, 50 So. 2d 229, 1951 Miss. LEXIS 300 (Miss. 1951).

This section [Code 1942, § 716] does not confer title to state lands since they are not subject to taxation, tax deed in such case being wholly void. Penick v. Floyd Willis Cotton Co., 119 Miss. 828, 81 So. 540, 1919 Miss. LEXIS 50 (Miss. 1919); Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660, 1914 Miss. LEXIS 12 (Miss. 1914).

This section [Code 1942, § 716] inapplicable to wild land not occupied by anyone. Dubose v. McNeil, 104 Miss. 634, 61 So. 706, 1913 Miss. LEXIS 83 (Miss. 1913).

The statute [Code 1942, § 716] applies only to lands that were taxable when sold for taxes. Mitchell v. Bond, 84 Miss. 72, 36 So. 148, 1904 Miss. LEXIS 13 (Miss. 1904); Hoskins v. Illinois C. R. Co., 78 Miss. 768, 29 So. 518, 1901 Miss. LEXIS 134 (Miss. 1901).

The statute [Code 1942, § 716] applies, although the land was not subject to sale and although the assessment roll was not properly returned by the assessor. Carlisle v. Yoder, 69 Miss. 384, 12 So. 255, 1891 Miss. LEXIS 101 (Miss. 1891), overruled, Hoskins v. Illinois C. R. Co., 78 Miss. 768, 29 So. 518, 1901 Miss. LEXIS 134 (Miss. 1901).

The statute [Code 1871, § 1709] does not apply to land held under the conveyance of a clerk of the circuit court, made under Acts 1872 and 1873 (Laws 1872 p. 9, and Laws 1873 p. 91), where there is no evidence that such land is held immediately or remotely under a conveyance by a tax-collector. Clay v. Moore, 65 Miss. 81, 3 So. 142, 1887 Miss. LEXIS 20 (Miss. 1887).

3. Defects subject to bar.

Section 15-1-15, which affords a 3-year limitation after a 2-year redemption period following a tax sale, cannot lend validity to a tax sale which is void for want of an adequate description. Although possession of the type required by the statute may set at rest an otherwise void sale, it cannot do so where the invalidity is because of the want of an adequate description. Bowser v. Tootle, 556 So. 2d 1373, 1990 Miss. LEXIS 46 (Miss. 1990).

Where attempted conveyance of mineral and royalty interests in a tract of land by tax deed was void for uncertainty of description, that description could not be cured by occupancy for three years under Code 1942, § 716 irrespective of the degree of such occupancy because the tax purchaser took nothing under this part of the description and there was no color of title which could be perfected under the statute. Wilson v. Clark, 278 So. 2d 250, 1973 Miss. LEXIS 1422 (Miss. 1973).

This section [Code 1942, § 716] is not applicable where claim was under void tax deed constituting color of title. Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13, 1952 Miss. LEXIS 494 (Miss. 1952).

A void tax deed may serve as color of title and be the basis of an adverse possessory claim. Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13, 1952 Miss. LEXIS 494 (Miss. 1952).

Where the state highway commission condemned a strip of land for highway purposes as against the holder of a tax title thereto, and it went into possession and occupied the same for more than three years, such period of possession without challenge on the part of the original owner destroyed the owner’s right to challenge the commission’s ownership, notwithstanding that the tax sale was void. Baldwin v. Mississippi State Highway Dep't, 187 Miss. 642, 193 So. 789, 1940 Miss. LEXIS 243 (Miss. 1940).

Statute respecting three years’ occupancy held inapplicable, where assessment and tax deed were nullities because of insufficient description. Patterson v. Morgan, 161 Miss. 807, 138 So. 362, 1931 Miss. LEXIS 316 (Miss. 1931).

The statute [Code 1942, § 716] is designed to cure one link in a title; that is, the possession continued for three years under a conveyance makes the sale a valid and legal sale for all purposes after the expiration of such time, but such possession does not cure a defect in a subsequent conveyance; accordingly, possession of a purchaser through conveyance from a municipality of land acquired by the municipality at a tax sale did not operate to cure the defects in the sale where no authority for such conveyance was provided by ordinance. Byrd v. Dickson, 152 Miss. 605, 120 So. 562, 1929 Miss. LEXIS 231 (Miss. 1929).

Occupancy for 3 years after 2 years from tax sale ripens into good title, though tax sale was void. Dimitry v. Lewis, 150 Miss. 818, 117 So. 265, 1928 Miss. LEXIS 178 (Miss. 1928).

Amendment eliminating former clause declaring the statute inapplicable to void sales and making statute applicable to actions claiming sale void held to apply to tax sale made prior thereto. Slawson v. W. T. Adams Mach. Co., 117 Miss. 777, 78 So. 753, 1918 Miss. LEXIS 220 (Miss. 1918).

This section [Code 1942, § 716] applies to any defects in tax titles. Littlier v. Boddie, 104 Miss. 178, 61 So. 171, 1913 Miss. LEXIS 17 (Miss. 1913).

Possession for three years under void tax sale confers good title. Smith v. Leavenworth, 101 Miss. 238, 57 So. 803, 1911 Miss. LEXIS 130 (Miss. 1911), writ of error dismissed, 235 U.S. 690, 35 S. Ct. 205, 59 L. Ed. 427, 1914 U.S. LEXIS 1047 (U.S. 1914).

Possession under tax sale made under unconstitutional law, for the statutory period confers title on purchaser. Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911); Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), overruled, Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911); McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 1907 Miss. LEXIS 4 (Miss. 1907), overruled, Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911).

Three-year statute inapplicable to illegal purchase of land by chancery clerk at tax sale. Barker v. Jackson, 90 Miss. 621, 44 So. 34, 1907 Miss. LEXIS 103 (Miss. 1907).

The statute [Code 1880, § 539] protects a tax title, although the sale was made on the wrong day and under a law (in this case the abatement act of 1875) not applicable. Brougher v. Stone, 72 Miss. 647, 17 So. 509, 1895 Miss. LEXIS 20 (Miss. 1895).

4. Actual occupation defined.

Under §15-1-15, “actual occupancy” does not mean that one must reside personally upon the property but it does mean possession over the 3-year period which is of such a nature, throughout the 3-year period, that another, believing himself or herself to be the owner of the property, would recognize that someone else was asserting a claim to it because of a clearly visible indicia of occupancy on the property. Bowser v. Tootle, 556 So. 2d 1373, 1990 Miss. LEXIS 46 (Miss. 1990).

The occupancy referred to in Code 1942, § 716, must be by someone claiming under color of title by and through the tax collector’s deed and in the absence of such claim and occupancy, the three-year term proscribed by this section does not begin to run. Wilson v. Clark, 278 So. 2d 250, 1973 Miss. LEXIS 1422 (Miss. 1973).

It is not mere adverse possession that gives title under Code 1942, § 716 but it is actual occupation claiming under a conveyance by a tax collector in pursuance of a tax sale. Yocom v. Patton, 277 So. 2d 110, 1973 Miss. LEXIS 1405 (Miss. 1973).

The words “actual occupation” under this section [Code 1942, § 716], do not require the tax buyer to go and live upon or use the premises, but he may occupy the land by a tenant and the occupancy of his tenant is the occupancy of the tax buyer. Cox v. Richerson, 186 Miss. 576, 191 So. 99, 1939 Miss. LEXIS 230 (Miss. 1939).

The possession necessary to put the statute in operation must be an actual occupancy of at least a part of the land and continuous from the time named. Pearce v. Perkins, 70 Miss. 276, 12 So. 205, 1892 Miss. LEXIS 103 (Miss. 1892).

5. —Applicability.

The section [Code 1942, § 716] is not applicable to a suit to remove a tax sale as a cloud of title to wild land which has never been actually occupied by anyone. Waldrop v. Whittington, 213 Miss. 567, 57 So. 2d 298, 1952 Miss. LEXIS 397 (Miss. 1952).

This section [Code 1942, § 716] applies to those who have actual occupation “under a conveyance by a tax collector”, and the sheriff of the county is the tax collector and the chancery clerk is not a tax collector. Powe v. Brantley, 210 Miss. 627, 50 So. 2d 229, 1951 Miss. LEXIS 300 (Miss. 1951).

Law relating to actual possession curing defect in tax sale relates only to sale followed by possession therein described; privity between purchaser at tax sale and person in possession is required for application of law relating to possession curing defects in sale; possession by purchaser through conveyance from municipality of lands acquired by the municipality at tax sale without ordinance authorizing such conveyances did not operate to cure defects in sale. Byrd v. Dickson, 152 Miss. 605, 120 So. 562, 1929 Miss. LEXIS 231 (Miss. 1929).

Where two tracts were contiguous and all of one and part of the other were adversely occupied under tax title, statute operates as to both. Dimitry v. Lewis, 150 Miss. 818, 117 So. 265, 1928 Miss. LEXIS 178 (Miss. 1928).

Proof of the occupancy of one of two contiguous lots embraced in the deed, there being no evidence as to the possession of the other, will protect the title to both. Brougher v. Stone, 72 Miss. 647, 17 So. 509, 1895 Miss. LEXIS 20 (Miss. 1895).

6. —Purpose.

The legislature intended by this section [Code 1942, § 716] that the possession of the holders of the tax title should be of such character and evidenced by such change of occupancy and acts of ownership as to leave no doubt as to whether the former owner would be thereby afforded the means of becoming advised that the title was being claimed pursuant to the tax sale. Smith v. Anderson, 193 Miss. 161, 8 So. 2d 251, 1942 Miss. LEXIS 103 (Miss. 1942).

The purpose of this section [Code 1942, § 716] is to require an actual possession as against a mere constructive possession under a paper title. Cox v. Richerson, 186 Miss. 576, 191 So. 99, 1939 Miss. LEXIS 230 (Miss. 1939).

7. —Requirements.

In order to show adverse possession, there is a necessity for unequivocal acts showing an occupancy which is actual, continuous, and hostile, especially where such occupancy is by a member of a family against another. Coleman v. L. & M. Land & Mineral Corp., 54 So. 2d 213 (Miss. 1951).

Without color of title, adverse possession gives title only to the land actually and continuously used, cultivated or occupied. Parks v. Simmons, 52 So. 2d 14 (Miss. 1951).

The character and type of “adverse possession” required under Code 1942, § 717, limiting the time for attacking validity of tax sale to the state, is that pertaining to ten years adverse possession, and not that under this section [Code 1942, § 716]. Leavenworth v. Claughton, 197 Miss. 606, 20 So. 2d 821, 1945 Miss. LEXIS 300 (Miss. 1945).

While, under the ten years’ adverse possession statute one may acquire title to land without actually occupying it, either himself or by tenant, but by merely cultivating, pasturing, cutting and selling timber, and other acts of ownership and control over the same, under the three-year statute it is required that there be actual occupancy for three years, and not the mere exercise of acts of ownership and control such as would give title by adverse possession without actual occupation. Smith v. Anderson, 193 Miss. 161, 8 So. 2d 251, 1942 Miss. LEXIS 103 (Miss. 1942).

8. —Particular cases.

A forfeited tax land patent void on its face constitutes color of title to the land therein described and possession for 3 years after 2 years from the date of the tax sale bars any action to invalidate the tax title. Yocom v. Patton, 277 So. 2d 110, 1973 Miss. LEXIS 1405 (Miss. 1973).

Possession by mortgagee under void deed of trust and claim of color of title under a tax deed which failed to describe the land, with subsequent possession consisting of occupancy of the premises through the person who owned the land at the time of the purported tax sale, did not sustain defendant’s claim of adverse possession and owner was entitled to decree canceling such claim as cloud upon his title. Heidelberg v. Duckworth, 206 Miss. 388, 40 So. 2d 179, 1949 Miss. LEXIS 269 (Miss. 1949).

Claimant to land under void tax title could not invoke the three-year limitation period under this section [Code 1942, § 716] to support his claim of title where he never occupied the land either subsequent or prior to the sale. Thompson v. Reed, 199 Miss. 129, 23 So. 2d 888, 1945 Miss. LEXIS 276 (Miss. 1945).

Fact that patentee’s vendee of wild and uncultivated land sold to the state under void tax sale paid taxes on the land continuously for three or four years prior to the filing of suits by the former owners to determine title, gave a deed of trust thereon for each of such years, and went upon such lands in person or by agent and offered to sell some timber therefrom although no timber was actually sold, cut or removed, did not constitute sufficient adverse possession to put the former owners on notice that their constructive possession of such land had been invaded, so that the two-year limitation period under Code 1942, § 717 was not available to the vendee. Thompson v. Reed, 199 Miss. 129, 23 So. 2d 888, 1945 Miss. LEXIS 276 (Miss. 1945).

While a claimant under a void tax title may not be required to change the tenants on a farm in order to put the three-year statute in operation, he is not entitled to claim the benefit of the statute where he knows that the alleged change in actual occupation is being successfully and skillfully concealed from the former owners by reason of the fact that the agents or tenants of the former owners are allowed to rent out the land and exercise full management and control of the property in the same manner as they had done prior to the tax sale. Smith v. Anderson, 193 Miss. 161, 8 So. 2d 251, 1942 Miss. LEXIS 103 (Miss. 1942).

9. Persons who may invoke bar.

This section [Code 1942, § 716] does not bar suit by tenant in common against cotenant in possession, as cotenant in possession has duty to pay taxes or to redeem from tax sale for benefit of all tenants in common, he cannot purchase any interest adverse to cotenants, and purchase of outstanding tax title by tenant in common inures to benefit of all tenants, the cost of redemption being common charge against property held in common. Howard v. Wactor, 41 So. 2d 259 (Miss. 1949).

Grantees of cotenant in possession who attempted to purchase land at tax sale cannot invoke this section [Code 1942, § 716], grantees taking land with notice since it is shown by record of title purchased that grantor was cotenant and disabled to acquire title for himself by purchase of tax title. Howard v. Wactor, 41 So. 2d 259 (Miss. 1949).

The effect of eminent domain proceedings against the holder of a tax title to the land in question, is to acquire the right of easement from such tax title holder, and the corporation or body condemning was entitled under the statute to enter and take possession and use the property for the purpose condemned, and was vested with all the rights and privileges that the party having the tax title would have, among which is the right to enter possession if it can peaceably do so, and hold possession for the statutory period under this section [Code 1942, § 716]. Baldwin v. Mississippi State Highway Dep't, 187 Miss. 642, 193 So. 789, 1940 Miss. LEXIS 243 (Miss. 1940).

Since the chancery clerk could not legally become a purchaser of land at the tax sale, one claiming through him could not invoke the bar of the statute. Barker v. Jackson, 90 Miss. 621, 44 So. 34, 1907 Miss. LEXIS 103 (Miss. 1907).

Neither one under duty to redeem, nor those claiming through him, can purchase a tax title from the state and invoke the statute. Lyebrook v. Hall, 73 Miss. 509, 19 So. 348, 1895 Miss. LEXIS 168 (Miss. 1895).

A cotenant who has acquired a tax title cannot invoke the statute. Jonas v. Flanniken, 69 Miss. 577, 11 So. 319, 1891 Miss. LEXIS 95 (Miss. 1891).

The section [Code 1942, § 716] applies as well to a purchaser from the state of tax lands as to a purchaser from the tax collector. Pipes v. Farrar, 64 Miss. 514, 1 So. 740, 1886 Miss. LEXIS 101 (Miss. 1886).

The statute [Code 1942, § 716] cannot be availed of where the occupant could not, if his tax title were perfect, assert it against the claimant of the land; its effect is to protect from assailment the tax title of one who, being authorized under the principles of law to claim under a sale for taxes, finds his title, which, if valid, would protect his possession, attacked for irregularities existing in the proceedings of sale. McGee v. Holmes, 63 Miss. 50, 1885 Miss. LEXIS 11 (Miss. 1885).

Where at the time of tax sale, the purchaser was in possession as mortgagee under one to whom a life tenant had conveyed the land, the statute could not be availed of as against the title of the heirs at law of the original owner. McGee v. Holmes, 63 Miss. 50, 1885 Miss. LEXIS 11 (Miss. 1885).

10. Persons affected.

Remaindermen are not barred under this section [Code 1942, § 716] from attacking a void tax title where the duty to pay the taxes rested upon the life tenant, who was still living, notwithstanding that they might have filed a bill to establish their rights as remaindermen, as against the void tax title, they being unable in such a suit to obtain possession prior to the death of the life tenant. Cox v. Richerson, 186 Miss. 576, 191 So. 99, 1939 Miss. LEXIS 230 (Miss. 1939).

This statute [Code 1942, § 716] is a mere statute of limitations and was not intended to cut off remaindermen, whose right of action does not accrue until the death of the life tenant; and the word “assail” adds no force to the statute since without it the statute would mean the same thing. Carter v. Moore, 183 Miss. 112, 183 So. 512, 1938 Miss. LEXIS 223 (Miss. 1938).

11. Running of limitation period.

Chancellor properly held that the property at issue belonged to a tax sale purchaser because her claim did not arise when she began renting from the former owner in 1993, rather it arose when she bought the property at a tax sale and paid the ad valorem taxes on the property thereafter, the former owner did not redeem the property, and, even if there were defects in the publication of the notice of the tax sale, they were cured by the former tenant’s occupancy of the property for approximately seven years after the tax sale. McNatt v. Turbeville, 162 So.3d 881, 2015 Miss. App. LEXIS 234 (Miss. Ct. App. 2015).

Limitation period provided by this section [Code 1942, § 716] does not begin to run against former owner or his vendee until their possession, whether actual or constructive, has been invaded, after alleged tax sale. Ellard v. Logan, 39 So. 2d 485 (Miss. 1949).

Even though it is true that one relying upon this section [Code 1942, § 716] to acquire a title through a void tax sale by means of actual occupation of the land for three years, after the expiration of the period of redemption, is not required to notify the former owners as to the fact of the claim and occupation thereunder, he must do something to denote a change in the character of the possession as compared with that preceding the commencement of the three years’ actual occupation relied on, such as would afford the former owners the means of acquiring knowledge that the land is being appropriated to his use under claim of ownership. Smith v. Anderson, 193 Miss. 161, 8 So. 2d 251, 1942 Miss. LEXIS 103 (Miss. 1942).

To set this statute [Code 1942, § 716] in operation there must be some person, either the buyer or his agent, assignee, or vendee, to go upon the premises and use the land in such manner as to show that parties are in possession under claim of right, and in such case the suit to show the tax sale void must be commenced within three years after the expiration of the time for redemption of the sale. Cox v. Richerson, 186 Miss. 576, 191 So. 99, 1939 Miss. LEXIS 230 (Miss. 1939).

Statute begins to run at end of redemption period, where owner retains possession. Carraway v. Lockard, 150 Miss. 704, 116 So. 599, 1928 Miss. LEXIS 130 (Miss. 1928).

A suit to recover because of defects in a tax sale, or any steps leading to the sale, is barred where the purchaser went into actual possession after the expiration of the time allowed for redemption and remained in possession for three years. Butts v. Ricks, 82 Miss. 533, 34 So. 354, 1903 Miss. LEXIS 165 (Miss. 1903).

12. —Redemption.

Possession from the time named will not bar the owner, where within the time allowed there was a redemption, this being a matter occurring after the sale. Cochran v. Richberger, 70 Miss. 843, 12 So. 851, 1893 Miss. LEXIS 39 (Miss. 1893).

13. Evidence.

A purchaser of a tax title from the state, to avail of this statute, must prove that the land was sold for taxes, and a deed from the state unsupported by such proof is insufficient. Bennett v. Chaffe, 69 Miss. 279, 13 So. 731, 1891 Miss. LEXIS 157 (Miss. 1891).

14. Pleading.

Although plaintiff argued that the chancellor should have cancelled and held the tax deed for naught because defendant could not meet the requirements of Miss. Code Ann. §15-1-15, the issue was irrelevant. The issue of the validity of defendant’s tax title was not addressed by the chancellor, except to the extent that the chancellor suggested that defendant could have filed a cross-claim to quiet and confirm title, but that her failure to do so did not nullify her claim of ownership pursuant to the tax deed. Dorris v. Graves, 189 So.3d 1233, 2016 Miss. App. LEXIS 220 (Miss. Ct. App. 2016).

Where a defendant in a suit to cancel a tax title fails to plead the statute and a decree is rendered canceling the title, his heir, who continues in possession, cannot afterwards invoke the statute against the complainant. Jones v. Merrill, 69 Miss. 747, 11 So. 23, 1892 Miss. LEXIS 2 (Miss. 1892).

RESEARCH REFERENCES

ALR.

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed. 5 A.L.R.2d 1021.

Reputation as to ownership or claim as admissible on question of adverse possession. 40 A.L.R.2d 770.

Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs. 43 A.L.R.2d 1061.

Title by or through adverse possession as marketable. 46 A.L.R.2d 544.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Limitation of action against insurer for breach of contract to defend. 96 A.L.R.3d 1193.

Cross References —

Proceedings to confirm tax title, see §11-17-1.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application generally.

3. Possession by state or those claiming through it.

4. Wild lands.

5. Color of title.

6. Defects subject to bar.

7. Persons affected.

8. —Owner in possession.

9. —Cotenants.

10. Running of limitation period.

11. Rights affected.

12. —Right of redemption.

13. Effect of redemption.

14. Actions to cancel title.

1. Validity.

Statute [Code 1942, § 717] held not unconstitutional as impairing contract since it reserves taxpayer full two years after passage in which to assert defects. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Statute [Code 1942, § 717] held not unconstitutional as classification violating equal protection of laws. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Alleged unconstitutionality, on ground statute vested fee simple title in state or patentees before expiration of three-year period of redemption allowed by Laws 1934 c. 383, would not be considered until case presented wherein statute was sought to be applied so as to cut off unexpired portion of redemption period. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

2. Construction and application generally.

The holder of a forfeited tax land patent, which was based upon a void assessment and invalid sale to the state, and his successors in title, could not by mere adverse possession of the surface become vested with title to the minerals, which had been antecedently separated. Wilson v. Eckles, 232 Miss. 577, 99 So. 2d 846, 1958 Miss. LEXIS 305 (Miss. 1958).

Under this section [Code 1942, § 717] there must be actual possession by purchaser of tax title. Wall v. Wall, 220 Miss. 642, 71 So. 2d 308, 1954 Miss. LEXIS 480 (Miss. 1954).

Where an attack on the validity of a tax sale was made two years after the sale, the action was barred by this section [Code 1942, § 717]. Brown v. Pittman, 211 Miss. 344, 51 So. 2d 732, 1951 Miss. LEXIS 363 (Miss. 1951).

Claimant acquired title under § 717, Code of 1942, the two-year tax statute of limitations, where there was an invalid tax sale to the state of three parcels of land which were adjoining and constituted and should have been sold as one tract, but where the claimant exercised ownership over the property, paid taxes, gave a turpentine lease under which visible acts upon trees were performed by the lessee, and where the claimant developed a program of reforestation. Broadus v. Hickman, 210 Miss. 885, 50 So. 2d 717, 1951 Miss. LEXIS 323 (Miss. 1951).

The two-year period prescribed by this section [Code 1942, § 717] within which suit may be brought to cancel the title of the state is, in effect, a statute of limitations. Hooper v. Walker, 201 Miss. 158, 29 So. 2d 72, 1947 Miss. LEXIS 381 (Miss. 1947).

Neither payment of taxes by patentee or his vendee of land sold to the state under a void tax sale, nor the giving of deeds of trust thereon, or both, constitutes a sufficient invasion of possession which follows legal title of the former owner to require the latter to file suit to set aside the tax sale within the two-year limitation prescribed by this section [Code 1942, § 717]. Thompson v. Reed, 199 Miss. 129, 23 So. 2d 888, 1945 Miss. LEXIS 276 (Miss. 1945).

The two-year limitation of this section [Code 1942, § 717] does not apply where the former owner and his vendees have continuously remained in possession from the time of the tax sale. State v. Butler, 197 Miss. 218, 21 So. 2d 650, 1945 Miss. LEXIS 287 (Miss. 1945).

The character and type of “adverse possession” required under this section [Code 1942, § 717] is that pertaining to ten years’ adverse possession, and not that under Code 1942, § 716 respecting three-year actual occupation under a tax title. Leavenworth v. Claughton, 197 Miss. 606, 20 So. 2d 821, 1945 Miss. LEXIS 300 (Miss. 1945).

Statute does not cure or validate defects, irregularities and illegalities in assessment, levy, and sale of land for taxes, but is purely a statute of limitation. It does not take away vested rights but fixes a reasonable period of time in which they may be asserted, leaving former owner the right to sue and have sale declared void because of such defects, etc. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Statute [Code 1942, § 717] could be successfully invoked against any suit challenging validity of tax sale to state, embraced within its provisions, on ground of defects, etc., as one of limitation, where effect would be neither to shorten period of redemption, nor divest estate in possession. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Though a tax sale is subject to be defeated by redemption within time and in manner prescribed by law, if there is no redemption, sale becomes valid, and title relates back to date of sale and takes precedence over any mortgage, deed, or other instrument executed by owner during period of redemption. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Fact that statute ran concurrently with portion of redemption period was immaterial since effect was not to shorten redemption period, and prior to expiration of limitation, taxpayer could enter suit to cancel claim of state’s patentee as cloud on his title, whether taxpayer was in possession or not or whether he was threatened to be disturbed in his possession. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

3. Possession by state or those claiming through it.

Where an action was brought in 1945 against the state to confirm a forfeited tax land patent and there was an adjudication of validity of the patent, and that though fraud had been perpetrated, the land commissioner and attorney general properly refused to cancel the tax sale to state and patent issued thereunder in an action brought therefor in 1949 by the heirs of the original owner of forfeited lands. Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13, 1952 Miss. LEXIS 494 (Miss. 1952).

Entry of possession by defendant pursuant to patent from state after tax sale to state, with actual knowledge of former owner, and continuance in possession for more than two years with payment of taxes on the land, established adverse possession as against the former owner, notwithstanding that the land was used during such period by neighbors for pasturage with consent of both the former owner and defendants. Webb v. Anderson, 206 Miss. 398, 40 So. 2d 189, 1949 Miss. LEXIS 270 (Miss. 1949).

The former owner is not required to actually occupy the land in the meantime by residing thereon to have it in his possession and under his control in order to prevent the running of the two-year limitation against his right to have a tax title canceled. Smith v. Myrick, 201 Miss. 647, 29 So. 2d 924, 1947 Miss. LEXIS 434 (Miss. 1947).

So long as the real owner of land is in possession, it would be unconstitutional for the legislature to require him to commence an action against anyone claiming through an invalid tax sale to the state. Hooper v. Walker, 201 Miss. 158, 29 So. 2d 72, 1947 Miss. LEXIS 381 (Miss. 1947).

Whenever it is shown that former owner of land remained in possession thereof after sale for taxes, either in person or by tenant, then statute [Code 1942, § 717] does not apply and claim of title and possession of such owner can be defeated only by proof of a valid assessment, levy and sale, coupled with failure to redeem within time allowed by law. Byrd v. Byrd, 193 Miss. 249, 8 So. 2d 510, 1942 Miss. LEXIS 113 (Miss. 1942); Grant v. Montgomery, 193 Miss. 175, 5 So. 2d 491, 1942 Miss. LEXIS 79 (Miss. 1942); Russell Inv. Corp. v. Russell, 182 Miss. 411, 182 So. 102 (1938); White v. Noblin, 183 Miss. 92, 183 So. 914, 1938 Miss. LEXIS 220 (Miss. 1938).

This statute of limitations [Code 1942, § 717] is wholly inapplicable to a case where, if the former owner does not remain in actual possession, there has been no adverse occupancy or possession by the purchaser at the tax sale, its patentee or his vendee for the period of limitations prescribed. Grant v. Montgomery, 193 Miss. 175, 5 So. 2d 491, 1942 Miss. LEXIS 79 (Miss. 1942).

Where shortly after the first of two sales of property to the state for taxes the former owner moved therefrom, upon destruction of the building thereon by fire, and the property remained vacant, with neither the state nor its patentee taking possession, the statute of limitations did not bar one claiming under the former owner from bringing action more than two years after such sale to cancel as a cloud upon his title the tax sales and subsequent patents from the state because of defects in the tax sales rendering them void. Grant v. Montgomery, 193 Miss. 175, 5 So. 2d 491, 1942 Miss. LEXIS 79 (Miss. 1942).

4. Wild lands.

Neither actual occupation, cultivation, nor residence are necessary to constitute actual possession when the property is so situated as not to admit any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. Broadus v. Hickman, 210 Miss. 885, 50 So. 2d 717, 1951 Miss. LEXIS 323 (Miss. 1951).

It is the rule that less notorious and obvious acts upon the land are essential to vest title in what are known as wild lands than lands suitable to occupancy by residing thereon and putting them to husbandry and farming. Broadus v. Hickman, 210 Miss. 885, 50 So. 2d 717, 1951 Miss. LEXIS 323 (Miss. 1951).

Fact that patentee’s vendee of wild and uncultivated land sold to the state under void tax sale paid taxes on the land continuously for three or four years prior to the filing of suits by the former owners to determine title, gave a deed of trust thereon for each of such years, and went upon such lands in person or by agent and offered to sell some timber therefrom although no timber was actually sold, cut or removed did not constitute sufficient adverse possession to put the former owners on notice that their constructive possession of such land had been invaded, so that the two-year limitation period under this section [Code 1942, § 717] was not available to the vendee. Thompson v. Reed, 199 Miss. 129, 23 So. 2d 888, 1945 Miss. LEXIS 276 (Miss. 1945).

5. Color of title.

A person in possession under a void instrument where its description is good, is in possession under a color of title and possession is extended from a part to the whole tract under this section [Code 1942, § 717]. Shepherd v. Mahannah, 220 F.2d 737, 1955 U.S. App. LEXIS 3410 (5th Cir. Miss. 1955).

A person in possession of land under color of a tax-forfeited land patent acquires title thereto by the requisite exclusive adverse possession over a period of two years even though the tax deed be void. Shepherd v. Mahannah, 220 F.2d 737, 1955 U.S. App. LEXIS 3410 (5th Cir. Miss. 1955).

A void tax deed may serve as color of title and be the basis of an adverse possessory claim. Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13, 1952 Miss. LEXIS 494 (Miss. 1952).

This section [Code 1942, § 717] which deals expressly with sales to the state, encompasses possession under color of title. Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13, 1952 Miss. LEXIS 494 (Miss. 1952).

Without color of title, adverse possession gives title only to the land actually and continuously used, cultivated or occupied. Parks v. Simmons, 52 So. 2d 14 (Miss. 1951).

6. Defects subject to bar.

This statute [Code 1942, § 717] applies only to any defect, irregularity or illegality in the assessment, levy or sale of land for delinquent taxes, and has no reference whatsoever to the question who may purchase at a tax sale and does not remove the disqualification of a wife to purchase at tax sale the tax forfeited land of her husband. Griffin v. Griffin, 194 Miss. 622, 11 So. 2d 311, 1943 Miss. LEXIS 20 (Miss. 1943).

The statute of limitations applies as against either statutory or constitutional objections to the tax sale. Grant v. Montgomery, 193 Miss. 175, 5 So. 2d 491, 1942 Miss. LEXIS 79 (Miss. 1942).

7. Persons affected.

8. —Owner in possession.

The two-year limitation period of §15-1-17 was inapplicable where a tax sale was void and the owner had remained in possession. Pittman v. Currie, 414 So. 2d 423, 1982 Miss. LEXIS 2030 (Miss. 1982).

Possession by mortgagee under void deed of trust and claim of color of title under a tax deed which failed to describe the land, with subsequent possession consisting of occupancy of the premises through the person who owned the land at the time of the purported tax sale, did not sustain defendant’s claim of adverse possession and owner was entitled to decree canceling such claim as cloud upon his title. Heidelberg v. Duckworth, 206 Miss. 388, 40 So. 2d 179, 1949 Miss. LEXIS 269 (Miss. 1949).

The owner of land sold for taxes is not precluded from attacking the tax sale and patent unless the nature of the acts claimed by the holder of the patent to constitute adverse possession and the time when such acts were begun are shown by definite, specific, clear and positive evidence. Smith v. Myrick, 201 Miss. 647, 29 So. 2d 924, 1947 Miss. LEXIS 434 (Miss. 1947).

This statute [Code 1942, § 717] has no application to an owner in possession, whether in person or by a tenant. Byrd v. Byrd, 193 Miss. 249, 8 So. 2d 510, 1942 Miss. LEXIS 113 (Miss. 1942); Grant v. Montgomery, 193 Miss. 175, 5 So. 2d 491, 1942 Miss. LEXIS 79 (Miss. 1942); E. L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227, 1940 Miss. LEXIS 67 (Miss. 1940).

The limitation provided herein does not apply to preclude a former owner from maintaining a suit to cancel a patent and certain conveyances as a cloud on title, based upon a void tax sale, where such former owner remained in possession, since until his possession is invaded or disturbed by the purchaser at the sale, or by a subsequent vendee of such purchaser, the statute of limitations prescribed by the statute for commencing an action does not begin to run. E. L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227, 1940 Miss. LEXIS 67 (Miss. 1940).

9. —Cotenants.

This section [Code 1942, § 717] and Code 1942, § 716, were inapplicable to an action to determine ownership of land in which the plaintiffs claimed an undivided one half interest, and in which defendants, who were successors in interest to a tenant in common who had also acquired tax title to the land, claimed title through adverse possession and laches; but the parties’ rights were to be tested by the ten-year statute of limitations. 231 Miss. 461, 95 So. 2d 563.

Neither this section [Code 1942, § 717] nor the three-year statute of limitations under Code 1942, § 716, has any application to a tax title claim by one cotenant against another. Smith v. Smith, 211 Miss. 481, 52 So. 2d 1, 1951 Miss. LEXIS 379 (Miss. 1951).

10. Running of limitation period.

In an action to cancel as a cloud on title a sale of property to the state in 1948 for 1947 taxes on minerals, the chancellor properly overruled the state’s demurrer where the demurrer admitted the complainant’s allegation that the 1948 tax sale had been invalid for failure to comply with the predecessor statute of §27-41-59 requiring that the tax collector first offer the property in 40-acre tracts. In addition, where the demurrer admitted the allegation that the state had not been in possession of the property since the tax sale, the chancellor properly overruled the special demurrer that the action was barred by the limitations in §§13-1-7 [Repealed],15-1-9, and15-1-17 since possession is required to start any of the three statutes into operation. Pittman v. Currie, 391 So. 2d 654, 1980 Miss. LEXIS 2182 (Miss. 1980).

Limitation period provided by this section [Code 1942, § 717] does not begin to run against former owner or his vendee until their possession, whether actual or constructive, has been invaded, after alleged tax sale. Ellard v. Logan, 39 So. 2d 485 (Miss. 1949).

The limitation provided for by this section [Code 1942, § 717] does not begin to run against the owner until his possession is invaded by some act of a claimant which amounts to an actual, hostile, adverse possession of the nature required by Code 1942, § 711, the ten years’ adverse statute. Smith v. Myrick, 201 Miss. 647, 29 So. 2d 924, 1947 Miss. LEXIS 434 (Miss. 1947).

The period within which the real owner of land must commence an action against anyone claiming through an invalid tax sale to the state does not begin to run so long as the real owner is in possession either in person or by tenant. Hooper v. Walker, 201 Miss. 158, 29 So. 2d 72, 1947 Miss. LEXIS 381 (Miss. 1947).

Adverse possession must be maintained continuously for the prescribed two-year period in order to bar the true owner under this section [Code 1942, § 717]. Leavenworth v. Claughton, 197 Miss. 606, 20 So. 2d 821, 1945 Miss. LEXIS 300 (Miss. 1945).

If this section [Code 1942, § 717] were not construed to require adverse possession on the part of the claimant before the limitation period began to run, but started the period running from the date of the sale, it would be unconstitutional. Leavenworth v. Claughton, 197 Miss. 606, 20 So. 2d 821, 1945 Miss. LEXIS 300 (Miss. 1945).

The two-year period of limitation under this section [Code 1942, § 717] does not begin to run until possession of the true owner, whether actual or constructive, is invaded or disturbed by or through claimant under the alleged invalid tax sale by an invasion which amounts to actual, adverse possession. Leavenworth v. Claughton, 197 Miss. 606, 20 So. 2d 821, 1945 Miss. LEXIS 300 (Miss. 1945).

Where patentee of uncultivated, unenclosed, cut-over land sold to the state under an invalid tax sale, did nothing to arrest owner’s attention until she had the land surveyed less than two years prior to the filing by the owner of cross-bill challenging the tax sale, there was not sufficient adverse possession for two years necessary to extinguish owner’s right and title to the land under this section [Code 1942, § 717]. Leavenworth v. Claughton, 197 Miss. 606, 20 So. 2d 821, 1945 Miss. LEXIS 300 (Miss. 1945).

Until the owner’s possession is invaded or disturbed by the purchaser at the tax sale, or by a subsequent vendee of such purchaser, the limitation period prescribed by the statute for commencing an action does not begin to run. E. L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227, 1940 Miss. LEXIS 67 (Miss. 1940).

11. Rights affected.

Where a tax sale was void because the minutes of the Board of Supervisors were not read and approved when the board adjourned, the defect could have been cured under this section [Code 1942, § 717] by taking and holding possession of the land for two years. Parks v. Simmons, 52 So. 2d 14 (Miss. 1951).

The two-year limitation in this section [Code 1942, § 717] does not apply where the sale to the state is utterly void for want of description and consequently no tax deed to the land exists. Meyerkort v. Warrington, 19 So. 2d 433 (Miss. 1944).

Statutes of limitation do not run in favor of the holder of the tax deed void on its face. Meyerkort v. Warrington, 19 So. 2d 433 (Miss. 1944).

This section [Code 1942, § 717] is more than a mere statute limiting the time within which to bring an action to cancel the title of the state to land sold to it for taxes; for, on the expiration of the time limit in ¶ 1 hereof, it extinguishes all the rights in and to the land of any and all persons whatsoever. Lee v. Smith, 189 Miss. 636, 198 So. 296, 1940 Miss. LEXIS 141 (Miss. 1940).

12. —Right of redemption.

This section [Code 1942, § 717] in no way affects the right of redemption as to land sold prior to its enactment; it simply limits the time within which an action can be brought by an owner of land sold to the state for taxes “to cancel the title of the state, or its patentees, or to recover said land from the state, or its patentees on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes” to two years after the statute became effective on April 4, 1934. Lee v. Smith, 189 Miss. 636, 198 So. 296, 1940 Miss. LEXIS 141 (Miss. 1940).

Where § 3 of chapter 196, Laws 1934, approved April 4th, 1934, if applied to a case where a tax sale, had prior to the enactment thereof, on September 18, 1933, was void and at that time the owner had three years from the day of the sale in which to redeem, would extinguish such right of redemption at the expiration of two years from the date of sale, thereby cutting off five months, fourteen days from the time in which the owner could redeem it, and would be unconstitutional, such section is inoperative to that extent so that the right of the owner to redeem the land from the tax sale would be unaffected thereby; a constitutional defect in such section, as applied to such circumstances, does not render it wholly void but simply requires that its operation be so restricted as to preserve the right of redemption that existed when the land was sold for taxes. Lee v. Smith, 189 Miss. 636, 198 So. 296, 1940 Miss. LEXIS 141 (Miss. 1940).

13. Effect of redemption.

When the owner of land sold for taxes redeemed it therefrom, the chancery clerk, through whom the redemption must be made, was required to execute to him a release of all claim or title of the state or purchaser to such land, by virtue of which the tax sale from which the land was regained is without further efficacy and the owner’s title and right to possession do not rest on defects in the assessment or sale of the land so that the necessity for an action to cancel the title of the purchaser at the sale no longer exists. Lee v. Smith, 189 Miss. 636, 198 So. 296, 1940 Miss. LEXIS 141 (Miss. 1940).

An owner of land sold for taxes, which sale is void, may, if he so desires, redeem it from the sale, bring an action to cancel the sale, or await action by the purchaser at the sale or his vendee and then invoke the invalidity of the sale in bar of any title therefrom, this section [Code 1942, § 718] limiting only the time in which the owner of land sold to the state for taxes can plead any defect in the sale referred to in the statute against the state or its patentees. Lee v. Smith, 189 Miss. 636, 198 So. 296, 1940 Miss. LEXIS 141 (Miss. 1940).

14. Actions to cancel title.

The principle that only the state is entitled to have a patent canceled on the sole ground of the fraud committed upon its land commissioner in the procurement thereof, does not preclude the former owners of the land from having the patent canceled in their own right as a cloud upon their title on the separate ground that the tax sale to the state is void as having been made on a date not authorized by law; nor are such former owners prevented from proving the fraud and the notice thereof furnished in the application of the patentee or from emphasizing the grossly inadequate price paid to the state, as disclosed in the reported patent, in answer to a subsequent vendee’s contention that he is an innocent purchaser for value without notice. E. L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227, 1940 Miss. LEXIS 67 (Miss. 1940).

In an action by the owners of land to set aside a patent from the state based upon a sale for delinquent taxes and to cancel a conveyance from the patentee to another, the latter could not successfully maintain that it occupied the position of an innocent purchaser for value without notice, even in the absence of any notice, actual or constructive, of the fraud committed upon the state in procurement of the patent, where the tax sale itself, made on a date not authorized by law, disclosed that the state had acquired no title, and could not convey any by the patent issued to such purchaser’s vendor. E. L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227, 1940 Miss. LEXIS 67 (Miss. 1940).

Where land was sold for delinquent taxes on August 1st, 1932, the court would not inquire into the validity of the tax sale in an action to cancel the sale brought in 1939, since such inquiry would necessitate a decision on the merits, which was the very thing the statute intended to cut off, the only exceptions thereto recognized by the statute being the actual payment of the taxes on the land prior to its sale therefor. Jones v. Russell, 187 Miss. 827, 194 So. 290, 1940 Miss. LEXIS 251 (Miss. 1940).

Cross References —

Sale of lands under mortgages and deeds in trust, see §89-1-55.

Barring of lien where time has lapsed on the face of the record, see §89-5-19.

JUDICIAL DECISIONS

1. In general.

2. Possession; receipt of profits or rent.

3. Persons entitled to invoke bar.

4. Rights and interests barred.

5. Running of limitation period.

6. —Acknowledgment of mortgagor’s rights.

7. Laches.

1. In general.

This provision [Code 1942, § 718] may be first pleaded on a retrial. Gaddis & McLaurin, Inc. v. Nichols, 234 Miss. 155, 105 So. 2d 459, 1958 Miss. LEXIS 477 (Miss. 1958).

Where mortgagee was in possession of realty for more than ten years but did not invade the actual and constructive possession of his wife in order to create duty on her part to commence an action for protection of her rights as owner during the occupancy of the mortgagee, the mortgagee acquired no title under this section. Cassidy v. Central Lumber Co., 219 Miss. 96, 67 So. 2d 266, 68 So. 2d 286, 1953 Miss. LEXIS 373, 1953 Miss. LEXIS 374 (Miss. 1953).

This section [Code 1942, § 718] does not apply to deed of trust on homestead void because of wife’s failure to join, the statute barring suits after adverse possession of ten years being the applicable statute. Woods v. Campbell, 87 Miss. 782, 40 So. 874, 1905 Miss. LEXIS 219 (Miss. 1905).

Under the statute [Code 1942, § 718], the doctrine as to stale claims not prevailing in this state, a bill to redeem land illegally purchased by a mortgagee at his own sale is only barred by the ten years’ limitation. Houston v. National Mut. Bldg. & Loan Ass'n, 80 Miss. 31, 31 So. 540, 1902 Miss. LEXIS 314 (Miss. 1902).

2. Possession; receipt of profits or rent.

Nonresident alien mortgagee secured perfect title against mortgagor, where he obtained possession through tenants under invalid sale and held possession and received rents for more than 10 years under claim of title. Scottish American Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666, 1910 Miss. LEXIS 14 (Miss. 1910).

Mortgagee’s title complete, either upon obtaining and holding actual possession after condition broken or receiving rents and profits for statutory period; in absence of fraud it is immaterial that only part of mortgagors surrendered possession. Garrett v. Ellis, 98 Miss. 1, 52 So. 451, 1910 Miss. LEXIS 35 (Miss. 1910).

Mortgage by one tenant in common purporting to convey entire estate did not amount to ouster nor start running of statute where possession was not taken thereunder. Scottish-American Mortg. Co. v. Bunckley, 88 Miss. 641, 41 So. 502, 1906 Miss. LEXIS 194 (Miss. 1906).

If the mortgagee buys at a mortgage sale, voidable for irregularities, enters and continues in possession as owner for nearly ten years, with the acquiescence of the mortgagor, the latter is estopped to plead the statute of limitations against the debt or assert the legal title until the status quo is restored. Lucas v. American Freehold Land Mortg. Co., 72 Miss. 366, 16 So. 358, 1894 Miss. LEXIS 82 (Miss. 1894).

In such case the purchaser will be treated as mortgagee in possession, entitled to satisfaction of his debt, but liable to an accounting as to the rents. Lucas v. American Freehold Land Mortg. Co., 72 Miss. 366, 16 So. 358, 1894 Miss. LEXIS 82 (Miss. 1894).

3. Persons entitled to invoke bar.

As a defense to an action by a successor in title to redeem encumbered land from the holder of a trust deed who had purportedly purchased the encumbered land at an invalid trustee’s foreclosure sale, and had taken possession of the land and paid the taxes thereon for 24 years, the holder of the trust deed could rely on either Code 1942, § 711, 10-year statute of adverse possession, or this section [Code 1942, § 718], as a mortgagee in possession after a condition broken, notwithstanding Code 1942, § 888, providing in part that an error in the mode of sale such as makes a sale void would not be cured by any statute of limitations, except after the 10-year statute of adverse possession. Gulfport Farm & Pasture Co. v. Hancock Bank, 232 Miss. 289, 98 So. 2d 862, 1957 Miss. LEXIS 474 (Miss. 1957), cert. denied, 358 U.S. 67, 79 S. Ct. 122, 3 L. Ed. 2d 106, 1958 U.S. LEXIS 178 (U.S. 1958).

A nonresident alien mortgagee secured a perfect title against the mortgagor, where he obtained possession through tenants under an invalid sale and held possession for the statutory period under claim of title. Scottish American Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666, 1910 Miss. LEXIS 14 (Miss. 1910).

A husband mortgaged his lands; the mortgagee without foreclosure conveyed to the wife, who thereafter occupied for ten years. She thereby acquired a perfect title. Little v. Teague, 60 Miss. 115, 1882 Miss. LEXIS 17 (Miss. 1882).

4. Rights and interests barred.

A mortgagor who allows a mortgagee or those claiming under him to remain in possession for more than ten years is barred of all equity of redemption. Tuteur v. Brown, 74 Miss. 774, 21 So. 748, 1897 Miss. LEXIS 53 (Miss. 1897).

5. Running of limitation period.

The statutes of limitation do not begin to run against persons in actual or constructive possession of lands until an adverse entry has been made. Trigg v. Trigg, 233 Miss. 84, 101 So. 2d 507, 1958 Miss. LEXIS 360 (Miss. 1958).

Where the father remained in possession of land, which he had conveyed by warranty deed to a son in 1937 allegedly as security for an indebtedness, and exercised complete dominion over the land until his death, and thereafter the father’s heirs retained possession of the land and dealt with it as part of the father’s estate until 1951, an action by the heirs in 1956 against the son to establish a resulting trust for the benefit of the heirs was not barred by the statutory limitations imposed by this section [Code 1942, § 718] and §§ 709 and 719, Code of 1942. Trigg v. Trigg, 233 Miss. 84, 101 So. 2d 507, 1958 Miss. LEXIS 360 (Miss. 1958).

6. —Acknowledgment of mortgagor’s rights.

Acknowledgment of mortgagor’s title to land in possession of mortgagee, or right to redeem, in writing signed by mortgagee, or person claiming through him, is only acknowledgment tolling statute of limitation. Cossar v. Grenada Oil Mill, 138 Miss. 890, 103 So. 509, 1925 Miss. LEXIS 92 (Miss. 1925).

7. Laches.

Laches was unavailable as defense to action seeking to set aside deed on grounds that it had been intended to serve as security, and not as conveyance, where persons instituting action acted seasonably under statute. Sweet v. Luster, 513 So. 2d 1240, 1987 Miss. LEXIS 2842 (Miss. 1987).

Suit to redeem from mortgage begun on last day before expiration of statutory time for bringing such suits, not barred by laches. Cox v. American Freehold & Land Mortg. Co., 88 Miss. 88, 40 So. 739, 1906 Miss. LEXIS 130 (Miss. 1906).

RESEARCH REFERENCES

ALR.

Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants. 32 A.L.R.2d 1214.

Mortgages: effect on subordinate lien of redemption by owner or assignee from sale under prior lien. 56 A.L.R.4th 703.

Am. Jur.

3 Am. Jur. 2d, Adverse Possession §§ 188- 191, 192, 213, 217.

55 Am. Jur. 2d, Mortgages §§ 406 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 51, 64.

59A C.J.S., Mortgages §§ 1424-1428.

Cross References —

Completion of limitation period extinguishing right of action, see §15-1-3.

Limitation on equity remedy generally, see §15-1-9.

Effect of payment of mortgage, see §89-1-49.

JUDICIAL DECISIONS

1. In general.

2. Joint debt.

3. Extension of debt.

4. Rights affected.

5. Running of limitation period.

6. Actions or proceedings.

7. Pleading.

8. Estoppel.

1. In general.

An instrument executed by a debtor was an assignment, rather than an equitable mortgage barred by the statute of limitations, where there was no note secured by the mortgage which could be barred by the statute of limitations. Gillis v. Case, 574 So. 2d 692, 1990 Miss. LEXIS 810 (Miss. 1990).

Where the father remained in possession of land, which he had conveyed by warranty deed to a son in 1937 allegedly as security for an indebtedness, and exercised complete dominion over the land until his death, and thereafter the father’s heirs retained possession of the land, and dealt with it as part of the father’s estate until 1951, an action by the heirs in 1956 against the son to establish a resulting trust for the benefit of the heirs was not barred by the statutory limitations imposed by this section [Code 1942, § 719] and §§ 709 and 718, Code of 1942. Trigg v. Trigg, 233 Miss. 84, 101 So. 2d 507, 1958 Miss. LEXIS 360 (Miss. 1958).

Where in 1931 a deed of trust on certain land was issued to a bank as security for a loan, and later that land was sold at a tax sale and not redeemed, in 1939 the bank’s remedy at law to recover the debt was barred by statute of limitations and direct remedy in equity was likewise barred. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

The rule that even where the debt secured by a mortgage is barred by the statute of limitations, the mortgagee cannot be deprived of possession by the mortgagor until the debt is paid does not apply in an action by a bank against the state to quiet title where the rights of the bank under a deed of trust were barred by the statute of limitations at the time the bank acquired a tax forfeited land patent and the patent was void. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

Where the debt is barred the mortgage cannot be enforced. Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933); Hembree v. Johnson, 119 Miss. 204, 80 So. 554, 1918 Miss. LEXIS 26 (Miss. 1918); Maddux v. Jones, 51 Miss. 531, 1875 Miss. LEXIS 75 (Miss. 1875); Huntington v. Heirs of Bobbitt, 46 Miss. 528, 1872 Miss. LEXIS 22 (Miss. 1872).

When secured debt is barred both right and remedy are extinguished. McDaniel v. Short, 127 Miss. 520, 90 So. 186, 1921 Miss. LEXIS 254 (Miss. 1921); Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933).

The statutes of limitation do not begin to run against persons in actual or constructive possession of lands until an adverse entry has been made. Dixon v. Doe, 23 Miss. 84, 1851 Miss. LEXIS 11 (Miss. 1851).

2. Joint debt.

A mortgage of her land by a wife to secure the joint debt of herself and husband will after his death be binding on the land, although her personal liability for the debt in the meantime be barred by limitation, the debt as to his estate not being barred. Bell v. Clark, 71 Miss. 603, 14 So. 318, 1893 Miss. LEXIS 127 (Miss. 1893).

3. Extension of debt.

Where note secured by deed of trust was extended from time to time, but fact of extensions was not noted on margin of record of deed of trust before remedy to enforce it appeared on face of record to be barred, or within six months thereafter, such extensions did not affect rights of subsequent creditors and purchasers for valuable consideration without notice of extensions. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

Where note secured by deed of trust was extended from time to time, but fact of extensions was not noted on margin of record of deed of trust before remedy to enforce it appeared on face of record to be barred, or within six months thereafter, that no cause of action accrued in favor of indorser of note until he paid debt held immaterial as affects rights of subsequent creditors and purchasers without notice. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

Where no effort was made to renew or extend notes or mortgage securing them until after notes were barred, right and remedy as to notes and mortgage were barred, and could not be revived. Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933).

Sale made under deed of trust after original indebtedness barred was valid where creditor entered marginal reference showing note extended, within six months. McBride v. Burgin, 142 Miss. 859, 108 So. 148, 1926 Miss. LEXIS 137 (Miss. 1926).

4. Rights affected.

Section 722, Code of 1942, providing for six-year limitation period when no other period is prescribed, this section [Code 1942, § 719] barring action on mortgage when debt it secures is barred, and § 743, Code of 1942, providing that completion of period of limitation bars action and defeats and extinguishes the right, operate to extinguish on September 1, 1935, deed of trust given to secure note falling due on September 1, 1929, and, in absence of renewal, or institution of foreclosure proceedings, power of sale and all other rights conferred by deed of trust are utterly destroyed on that date. Perkins v. White, 208 Miss. 157, 43 So. 2d 897, 1950 Miss. LEXIS 237 (Miss. 1950).

Where note secured by deed of trust was extended from time to time but the fact of extension was not noted on the margin of the record of the deed of trust before the remedy to enforce it was barred, or within six months thereafter, such extensions did not affect rights of subsequent creditors and purchasers for value without notice of the extensions. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

That junior lien attached before bar of limitations attached to prior deed of trust did not affect right of junior lienor’s transferees who purchased for valuable consideration the note and security and had no notice that lien had not been extinguished, and parted with something of value, and hence became “creditors” or “subsequent purchasers” within statute providing that recorded lien should have no effect as to creditors and subsequent purchasers where remedy thereof was barred by limitation. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

Where senior mortgage and notes secured thereby were barred, neither junior mortgagee nor one claiming under him was bound to know any facts not of record, nor estopped to claim priority, not to assert that attempted revival of senior mortgage was void. Musser v. First Nat'l Bank, 165 Miss. 873, 147 So. 783, 1933 Miss. LEXIS 311 (Miss. 1933).

Junior mortgagee cannot redeem from sale under prior mortgage if his debt is barred. Central Trust Co. v. Meridian L. & R. Co., 106 Miss. 431, 63 So. 575, 1913 Miss. LEXIS 132 (Miss. 1913).

5. Running of limitation period.

The limitation period for the enforcement of a deed of trust was not tolled by the fact that the defendant continued to make 74 monthly payments after the balloon payment on the promissory note became due since such payments did not unequivocally acknowledge when the balance was due, to whom the balance was due, and for what the balance was due, and, moreover, such payments did not contain a specification of the debt referred to and a promise to pay a fixed amount. EB, Inc. v. Smith, 757 So. 2d 1017, 2000 Miss. App. LEXIS 92 (Miss. Ct. App. 2000).

Advertisement of sale of property secured by trust deed pursuant to power of sale contained in the deed constitutes “proceeding” brought or had on trust deed, commencement of which tolls statute of limitations. Gates v. Chandler, 174 Miss. 815, 165 So. 442, 1936 Miss. LEXIS 210 (Miss. 1936).

Proceeding for foreclosure of trust deed commenced three days before note secured thereby would become barred by limitations by advertisement in newspaper in the exercise of power of sale contained in the trust deed held not barred by limitations, notwithstanding sale could not have been made before expiration of statutory period. Gates v. Chandler, 174 Miss. 815, 165 So. 442, 1936 Miss. LEXIS 210 (Miss. 1936).

6. Actions or proceedings.

In a dispute involving a promissory note, an issue of which statute of limitations applied was not decided because the creditor never filed suit to foreclose on the note, and the creditor never filed collection on the note. Chimento v. Fuller, 965 So. 2d 668, 2007 Miss. LEXIS 543 (Miss. 2007).

An action in subrogation filed by a credit association which had purchased land under a foreclosure sale under its second deed of trust against the successors in title in January, 1967, to recover the amount which it had paid to the beneficiary of the first deed of trust in June of 1961, in payment of a delinquent payment owed to the beneficiary of the first trust deed by the grantor who had executed the deeds of trusts, was barred by the six-year statute of limitations where the delinquent payment had been due in January of 1961, since the plaintiff credit association acquired no greater rights than those of its subrogor so that when the debt became barred, the plaintiff’s right to enforce its remedy in equity on the deed of trust was likewise barred. Meridian Production Credit Asso. v. Edwards, 231 So. 2d 806, 1970 Miss. LEXIS 1614 (Miss. 1970).

The words “action or suit” as used in this section [Code 1942, § 719] cover every proceeding of judicial character by which trust deed may be enforced and words “other proceedings” would be meaningless if restricted to proceedings of a judicial character. Gates v. Chandler, 174 Miss. 815, 165 So. 442, 1936 Miss. LEXIS 210 (Miss. 1936).

This section [Code 1942, § 719] includes “proceeding” to foreclose trust deed by exercise of power of sale contained in deed. Gates v. Chandler, 174 Miss. 815, 165 So. 442, 1936 Miss. LEXIS 210 (Miss. 1936).

Equity, at suit of complainant willing to do equity, will enjoin ejectment on ground sale to complainant was invalid because made by substituted trustee not legally appointed, where complainant had been in possession 8 years and debt had become barred. Wall v. Harris, 90 Miss. 671, 44 So. 36, 1907 Miss. LEXIS 105 (Miss. 1907).

7. Pleading.

In an action by a bank against the state to quiet title where the rights and remedies of the bank under a deed of trust were barred by the statute of limitations at the time the bank acquired a tax forfeited land patent and where the patent was void, the absence of a specific plea of statute of limitations was not defective and the bank was not entitled to quiet title. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

A bill by a mortgagee purchasing at a sale in pais under his mortgage against the mortgagor, filed before the debt was barred, which, though in form to remove clouds from the title, yet presents every allegation necessary to foreclose the mortgage, may be amended upon the mortgagor setting up that the title of the mortgagee was invalid because of defects in the sale, so as to pray for and procure a foreclosure of the mortgage, notwithstanding at the time of such amendment an original bill would be barred. Easter v. Riley, 79 Miss. 625, 31 So. 210, 1901 Miss. LEXIS 107 (Miss. 1901).

8. Estoppel.

The defendant was not equitably estopped from asserting the limitations period in an action to enforce a deed of trust, notwithstanding that he continued to make 74 monthly payments after the balloon payment on the promissory note became due, as there was no evidence that the plaintiff relied on the defendant or that he sought to induce the plaintiff’s reliance. EB, Inc. v. Smith, 757 So. 2d 1017, 2000 Miss. App. LEXIS 92 (Miss. Ct. App. 2000).

RESEARCH REFERENCES

Am. Jur.

55 Am. Jur. 2d, Mortgages § 618.

CJS.

54 C.J.S., Limitations of Actions §§ 51, 63, 64.

Law Reviews.

The effect of bankruptcy and encumbrances on mineral interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

Cross References —

Exception for notes or evidences of debt issued by bank or moneyed corporation, see §15-1-79.

JUDICIAL DECISIONS

1. In general.

The most reasonable interpretation of the statute was that the sale of all property securing a note had to be completed to trigger the statute of limitations; accordingly, where the notes’ cross-collateralization clause ensured that all eight notes were secured by all eight trucks, the statutory one-year limitations period began only after the creditor sold all the trucks, and thus, the creditor’s suit seeking a deficiency judgment was timely filed. Volvo Fin. Servs. v. Williamson, 910 F.3d 208, 2018 U.S. App. LEXIS 34290 (5th Cir. Miss. 2018).

The emphasis of the one-year statute of limitations for actions brought against “any installment note” under §15-1-23, is on notes secured by a mortgage or deed of trust which has been foreclosed. The import of the statute’s language, “upon any installment note, or a series of notes three or more, whether due or not,” is that the statute of limitations begins to run after the foreclosure and not on the due date of any portion of the note or the due date of any note of a series of 3 or more. Rankin County Bank v. McKinion, 531 So. 2d 822, 1988 Miss. LEXIS 490 (Miss. 1988).

Mississippi Code §15-1-23 operated to bar action to recover deficiency judgment from defendant after plaintiff’s repossession and sale of collateral pledged on installment note, and court rejected plaintiff’s argument that §15-1-49 should apply, where maker of note was not same party who granted security interest; court also rejected argument that statute was in direct conflict with cumulative remedy concept provided in Uniform Commercial Code since plaintiff was not precluded from exercising its cumulative remedies as long as it did so in timely manner. Commercial Agency v. Loe, 667 F. Supp. 359, 1987 U.S. Dist. LEXIS 7715 (S.D. Miss. 1987).

Code §15-1-49, rather than §15-1-23, applied in an action by a bank for a deficiency judgment on an instrument guaranteeing payment of a secured note. First Nat'l Bank v. Drummond, 686 F.2d 1117, 1982 U.S. App. LEXIS 25292 (5th Cir. Miss. 1982).

In an action on a guaranty contract, the general six-year statute of limitations Code §15-1-49 would be applied rather than the one-year statute of limitations regarding actions following the foreclosure of an installment note. First Nat'l Bank v. Drummond, 419 So. 2d 154, 1982 Miss. LEXIS 2123 (Miss. 1982).

The words “series of notes” as employed in this section, mean multiple notes given in a single transaction and for the same consideration, and without regard for their several maturity dates. Thus, in an action by a bank against the makers and endorsers of a note in the amount of $300,000, the trial court erred in dismissing the action upon a plea of the statute of limitations where the action involved two separate notes of $150,000 each given at different times and two other notes, one for $150,000 to renew the first note and one for $300,000 to renew and consolidate both original notes. Peoples Bank & Trust Co. v. Kinsey, 385 So. 2d 615, 1980 Miss. LEXIS 2026 (Miss. 1980).

This section [Code 1942, § 720] was not applicable to an action which involved only two notes, neither of which was an installment note. Rivervalley Co. v. Deposit Guaranty Nat'l Bank, 331 F. Supp. 698, 1971 U.S. Dist. LEXIS 12606 (N.D. Miss. 1971).

A replevin action asserted by a vendor under a conditional sales contract is not a foreclosure and thus does not set the one year statute of limitations in motion. Paul O'Leary Lumber Corp. v. Mill Equipment, Inc., 332 F. Supp. 1144, 1970 U.S. Dist. LEXIS 11009 (S.D. Miss. 1970), aff'd, 448 F.2d 536, 1971 U.S. App. LEXIS 8001 (5th Cir. Miss. 1971).

A suit for a deficiency judgment on a promissory note instituted more than one year after the date of the sale of the property securing the same was barred by this section [Code 1942, § 720]. Guthrie v. Merchants Nat'l Bank, 254 Miss. 532, 180 So. 2d 309, 1965 Miss. LEXIS 964 (Miss. 1965).

The fact that the contract from which the suit for a deficiency judgment arose was executed in another state by residents of that state and that the subject property was located there was immaterial; for the lex fori controlled rather than lex loci contractus, and the applicable limitations statute was that of Mississippi. Guthrie v. Merchants Nat'l Bank, 254 Miss. 532, 180 So. 2d 309, 1965 Miss. LEXIS 964 (Miss. 1965).

This section [Code 1942, § 720] is not applicable to bar an action to collect on a deficiency judgment where the judgment was obtained before the passage of this act and the case involved an action based on that judgment and not upon a note. Roebke v. Love, 186 Miss. 609, 191 So. 122, 1939 Miss. LEXIS 238 (Miss. 1939).

The purpose of this section [Code 1942, § 720] was to alleviate distressed mortgage debtors and to discourage foreclosure of mortgages during the depression. Lewis v. Simpson, 176 Miss. 123, 167 So. 780, 1936 Miss. LEXIS 115 (Miss. 1936).

This section [Code 1942, § 720] is applicable only to suit on note secured by mortgage which has been foreclosed and is not applicable to suit on a note secured by another mortgage on the same realty which has not been foreclosed. Lewis v. Simpson, 176 Miss. 123, 167 So. 780, 1936 Miss. LEXIS 115 (Miss. 1936).

RESEARCH REFERENCES

ALR.

Redemption rights of vender defaulting under executory land sales contract after foreclosure sale or foreclosure decree enforcing vendor’s lien or rights. 51 A.L.R.2d 672.

Priorty as between vendor’s lien and mortgage or deed of trust to third person furnishing purchase money. 55 A.L.R.2d 1119.

Am. Jur.

55 Am. Jur. 2d, Mortgages §§ 696 et seq.

CJS.

59A C.J.S., Mortgages §§ 1260, 1261, 1266, 1281 et seq.

Cross References —

Limitations on actions in setoff, see §15-1-71.

Limitation of action on sales contracts, see §75-2-725.

Suits on contractor’s bond, see §85-7-189.

Actions which survive against executor or administrator, see §91-7-235.

JUDICIAL DECISIONS

1. In general.

2. Claims subject to bar.

3. Application to guardians.

4. Computation of limitation period.

5. —Effect of change, resignation, etc., of executor or administrator.

1. In general.

Section15-1-25, which specifically states that a suit against an executor or administrator must be filed within 4 years of the qualification of the executor or administrator, is an example of the legislature carving out a specific statute of limitations period in order to preempt the general 6-year limitations, and therefore the specific statute of §15-1-25 preempts the general statute of §15-1-49. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

Section 15-1-25 is not unconstitutional as violative of equal protection in that it provides only 4 years in which to file a claim against an estate while other tort victims have the benefit of the general 6-year statute of limitations, since the legislature’s interest in finality with respect to estates is a legitimate governmental interest and the statute of limitations is a rational means of serving that specific interest. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

Statutes of limitation are remedial in their nature and are to be construed liberally. First Nat'l Bank & Trust Co. v. Landau, 183 Miss. 651, 184 So. 618, 1938 Miss. LEXIS 278 (Miss. 1938).

This section [Code 1942, § 725] is the only limitation applicable to claims probated and registered which were not barred at time. Duffy v. Kilroe, 116 Miss. 7, 76 So. 681, 1917 Miss. LEXIS 281 (Miss. 1917).

The statute [Code 1942, § 725] runs without regard to the publication for creditors to probate their claims. Sivley v. Summers, 57 Miss. 712, 1880 Miss. LEXIS 44 (Miss. 1880).

2. Claims subject to bar.

This section [Code 1942, § 725], and not the one-year period fixed by Code 1942, § 610, governs an action against an estate for decedent’s negligence. Jones v. Evans, 247 Miss. 285, 156 So. 2d 742, 1963 Miss. LEXIS 299 (Miss. 1963).

This section [Code 1942, § 725] governs the personal actions which survive under Code 1942, § 610. Powell v. Buchanan, 245 Miss. 4, 147 So. 2d 110, 1962 Miss. LEXIS 526 (Miss. 1962).

Statute of limitations, whether general or special, does not run in favor of executor or administrator with respect to claims for legacies or distributive shares until there is a final settlement or at least a disavowal of the trust. Bailey v. Sayle, 206 Miss. 757, 40 So. 2d 618, 1949 Miss. LEXIS 298 (Miss. 1949).

Legatee’s suit for accounting, brought more than 27 years after testatrix’ death, was not barred by statute of limitations as against executor named in will, who took charge of estate without issuance of letters or notice to creditors and who had never filed any inventory, report, account, or other paper or pleading in court, and had never been discharged from his trust. Bailey v. Sayle, 206 Miss. 757, 40 So. 2d 618, 1949 Miss. LEXIS 298 (Miss. 1949).

The section [Code 1942, § 725] does not apply to causes of action which accrue after the death of the decedent. Tom E. Taylor Undertaking Co. v. Smith's Estate, 183 Miss. 45, 183 So. 391, 1938 Miss. LEXIS 214 (Miss. 1938); Sivley v. Summers, 57 Miss. 712, 1880 Miss. LEXIS 44 (Miss. 1880); Buckingham v. Walker, 48 Miss. 609, 1873 Miss. LEXIS 84 (Miss. 1873); MCLEAN v. RAGSDALE, 31 Miss. 701, 1856 Miss. LEXIS 142 (Miss. 1856); Pope v. Bowman, 27 Miss. 194, 1854 Miss. LEXIS 30 (Miss. 1854); Bingaman v. Robertson, 25 Miss. 501, 1853 Miss. LEXIS 21 (Miss. 1853).

A proceeding to subject a decedent’s estate to the payment of the balance due on funeral expenses is not barred by the four-year statute of limitations, since such statute applies only to obligations incurred by the decedent in his lifetime, and the statute of limitations does not run against funeral expenses which are a part of the cost of the administration of the estate as long as the estate is open. Tom E. Taylor Undertaking Co. v. Smith's Estate, 183 Miss. 45, 183 So. 391, 1938 Miss. LEXIS 214 (Miss. 1938).

Administrator’s claim against estate not barred by limitation where duly probated and not barred at time of appointment. Oliver v. Smith, 94 Miss. 879, 49 So. 1, 1909 Miss. LEXIS 364 (Miss. 1909).

The statute of limitations does not run in favor of an executor against a legatee until he has finally accounted, even where under the will he was to own the entire estate as long as he remained single, and the legatee’s right to the legacy accrued only upon his subsequent marriage. Edwards v. Kelly, 83 Miss. 144, 35 So. 418, 1903 Miss. LEXIS 22 (Miss. 1903).

3. Application to guardians.

This section [Code 1942, § 725] applies to claims against guardians for liability of their wards by virtue of Code 1930, § 1902, Code 1942, § 439. First Nat'l Bank & Trust Co. v. Landau, 183 Miss. 651, 184 So. 618, 1938 Miss. LEXIS 278 (Miss. 1938).

4. Computation of limitation period.

Health care providers’ claim against the decedent’s estate was time-barred because the four-year statute of limitations began to run ninety days after the executor was issued letters of administration, but the providers did not bring their cause of action until after the expiration of the limitations period. Rush Found. Hosp. v. Carlisle, 269 So.3d 222, 2018 Miss. App. LEXIS 111 (Miss. Ct. App. 2018).

Statement of claim in a probate proceeding was timely filed because the stay entered by a federal circuit court, prohibiting the creditor from foreclosing on the encumbered property pending the appeal, began the tolling of the filing period as to the promissory note. Avakian v. Wilmington Trust N.A. (In re Estate of Avakian), 231 So.3d 208, 2017 Miss. App. LEXIS 201 (Miss. Ct. App.), cert. denied, 229 So.3d 122, 2017 Miss. LEXIS 492 (Miss. 2017).

In a wrongful death action against the administrator of an estate, the 4-year limitations period set forth in §15-1-25 began to run 90 days after the letters of administration were issued since §91-7-239 provides that a suit cannot be filed against an executor or administrator until after 90 days following the issuance of the letters of administration. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

In a wrongful death action against the administrator of an estate arising from an automobile accident, the 4-year limitations period set forth in §15-1-25 was not tolled pursuant to §15-1-57 during the time that another suit stemming from the same accident was on direct appeal to the Supreme Court from an order granting a directed verdict where the plaintiff in the wrongful death action was not a party to the second suit, and did not have any involvement with it except that the plaintiff’s decedent had been riding in the same automobile as the plaintiff’s decedent in the second lawsuit; the order granting the directed verdict in the second case in no way prevented the plaintiff from filing his wrongful death cause of action. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

Statute allows four years and six months within which an executor or administrator can be sued. Toler v. Wells, 158 Miss. 628, 130 So. 298, 1930 Miss. LEXIS 50 (Miss. 1930).

Where administrator was appointed and letters of administration were issued November 17, 1922, action could not be maintained against administrator after May 17, 1927. Toler v. Wells, 158 Miss. 628, 130 So. 298, 1930 Miss. LEXIS 50 (Miss. 1930).

Claims against estate which matured before decedent’s death are barred, not withstanding probate, by failure to sue thereon within 4 years and 6 months from grant of letters. Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958, 1918 Miss. LEXIS 158 (Miss. 1918).

Claim for medical services rendered during last illness not barred until 4 years and 6 months after grant of letters. Hardenstein v. Brien, 96 Miss. 493, 50 So. 979, 1910 Miss. LEXIS 152 (Miss. 1910).

The period within which executors and administrators cannot be sued as provided by statute pertaining specifically to executors and administrators (Code 1942, § 612) should not be computed as part of the time. Wilkinson v. Moore, 27 Miss. 365, 1854 Miss. LEXIS 59 (Miss. 1854); West F. R. Co. v. Stockett, 21 Miss. 395, 1850 Miss. LEXIS 35 (Miss. 1850); Jennings v. Love, 24 Miss. 249, 1852 Miss. LEXIS 51 (Miss. 1852).

5. —Effect of change, resignation, etc., of executor or administrator.

In a wrongful death action against the administrator of an estate, the 4-year limitations period provided in §15-1-25 did not run from the appointment of the second administrator of the estate since the statute of limitations runs from the original grant of the letters of administration regardless of whether subsequent administrators are named. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

The statute [Code 1942, § 725] begins to run on the qualification of the administrator, and is not stopped by his subsequent resignation. Champion v. Cayce, 54 Miss. 695, 1877 Miss. LEXIS 83 (Miss. 1877).

The statute [Code 1942, § 725] applies if four years have elapsed since the original grant of letters upon the estate, even if the particular administrator or executor who is sued has not been so long in office. Boyd v. Lowry, 53 Miss. 352, 1876 Miss. LEXIS 77 (Miss. 1876).

RESEARCH REFERENCES

ALR.

Running of statute of limitations as affected by doctrine of relation back of appointment of administrator. 3 A.L.R.3d 1234.

Fiduciary or confidential relationship as affecting estoppel to plead statute of limitations. 45 A.L.R.3d 630.

Am. Jur.

1 Am. Jur. 2d, Accounts and Accounting §§ 14 et seq., 58.

31 Am. Jur. 2d, Executors and Administrators § 769.

4 Am. Jur. Trials, Statutes of Limitation § 26.

CJS.

1 C.J.S., Account, Action on §§ 14, 16.

34 C.J.S., Executors and Administrators §§ 893-917.

Cross References —

Effect of running of limitations against guardian, see §15-1-53.

Guardian’s bond, see §93-13-17.

Final account and settlement by guardian, see §93-13-77.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

Statute of limitations did not prevent the chancery court from correcting a fraud upon the court because a guardian’s initiation of a suit to reopen the guardianship in order to investigate an attorney and determine the whereabouts of guardianship money was sufficient to toll the statutes of limitations; the guardian’s petition to reopen the guardianship and to be reappointed the guardian was also an act by the ward since it was on his behalf, and i twas filed within the five-year period. In re Guardianship of McClinton, 157 So.3d 862, 2015 Miss. App. LEXIS 44 (Miss. Ct. App. 2015).

Statute [Code 1942, § 726] does not begin to run against suits on guardian’s bond until final settlement of his trust. Pattison v. Clingan, 93 Miss. 310, 47 So. 503 (Miss. 1908).

2. Applicability.

After a guardianship account was drained, the twenty-four-year-old ward sued the bank for breaching its duty by allowing the funds on deposit to be converted without a court order; the claim was barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49, because it was not filed three years after he turned twenty-one. The bank was not a surety; therefore, Miss. Code Ann. §15-1-27 was not the applicable statute of limitations. Williams v. Duckett (In re Duckett), 991 So. 2d 1165, 2008 Miss. LEXIS 307 (Miss. 2008).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward §§ 137, 140.

CJS.

39 C.J.S. Guardian and Ward §§ 254, 259.

Cross References —

When statute commences to run on open accounts, see §15-1-31.

JUDICIAL DECISIONS

1. Contracts in general.

2. Contracts in writing.

3. Unwritten contracts, generally.

4. — Involving employment.

5. —Involving attorneys.

6. —Miscellaneous cases.

7. Implied contract.

8. Accounts.

9. —Acknowledgments.

10. Evidence.

11. Pleading.

12. Running of limitation period.

13. — Accrual of cause of action.

14. —New cause of action.

15. Miscellaneous.

1. Contracts in general.

Section 15-1-49, rather than this section, applies to contracts for professional services. Law Firm of Logan & Bise v. Stewart (In re Estate of Stewart), 732 So. 2d 255, 1999 Miss. LEXIS 81 (Miss. 1999).

Where plaintiff, recipient of certain scholarship funds as financial assistance for medical school costs and tuition, was required to fulfill 4 year service obligation at approved health care facility, and signed private practice assignment agreement with health care facility, with such agreement stating that it would be “negotiable at the end of one year”, and accepted employment there, but was terminated 10 months later with the termination being memorialized as a non-renewal of employment agreement, §15-1-35 was not applicable to portion of complaint alleging termination of his employment, rather appropriate provision was “catch all” statute of limitations §15-1-49. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

In a probate proceeding based upon an oral contract whereby the decedent promised to bequeath to the claimant a parcel of real property in return for a loan of $11,000, the cause of action for breach of the oral contract arising out of the failure of the will to be admitted to probate did not arise until the death of the decedent; therefore, where the claim for probate was filed within three months of the decedent’s death, it was not barred by the three-year statute of limitations for all contracts set forth in §15-1-29. Estate of McKellar v. Brown, 404 So. 2d 550, 1981 Miss. LEXIS 2229 (Miss. 1981).

In an employment discrimination action pursuant to 42 USCS § 1981, the general six-year statute of limitations provided by §15-1-49 rather than the contractual three-year statute of limitations provided by §15-1-29 would be applicable even though a mere claim for back pay would ordinarily be governed by the three-year statute. Walton v. Utility Products, Inc., 424 F. Supp. 1145, 1976 U.S. Dist. LEXIS 13379 (N.D. Miss. 1976).

Where the action was one either in tort or for a wrongful breach of duty in a suit on a letter agreement, the three-year limitations statute applicable to open accounts did not apply, and the action was governed by the six-year statute of limitations. Bentz v. Vardaman Mfg. Co., 210 So. 2d 35, 1968 Miss. LEXIS 1491 (Miss. 1968).

This statute [Code 1942, § 729] is applicable as the law of the forum to an action in a Mississippi Federal court against a citizen of Mississippi on a contract for services in Mississippi to be paid for in Louisiana. Le Mieux Bros. Corp. v. Armstrong, 91 F.2d 445, 1937 U.S. App. LEXIS 4253 (5th Cir. Miss. 1937).

To take a case out of the application of this statute [Code 1942, § 729] there must be a writing evidencing an acknowledgment of indebtedness, or promising to pay, in such terms as to render any supplemental evidence unnecessary. First Nat'l Bank v. Johnson, 177 Miss. 634, 171 So. 11, 1936 Miss. LEXIS 268 (Miss. 1936); Blount v. Miller, 172 Miss. 492, 160 So. 598, 1935 Miss. LEXIS 157 (Miss. 1935); Federal Land Bank v. Collins, 156 Miss. 893, 127 So. 570, 1930 Miss. LEXIS 233 (Miss. 1930); Foote v. Farmer, 71 Miss. 148, 14 So. 445, 1893 Miss. LEXIS 170 (Miss. 1893).

This section [Code 1942, § 729] applies alone to actions on open or stated account not acknowledged in writing, signed by debtor, and on unwritten contracts. Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227, 1923 Miss. LEXIS 233 (Miss. 1923).

The statute [Code 1942, § 729] relates only to actions founded on contract, express or implied. Adams v. Illinois C. R. Co., 71 Miss. 752, 15 So. 640, 1894 Miss. LEXIS 54 (Miss. 1894).

2. Contracts in writing.

Although it would not disaffirm employment-at-will status, the hiring information section of the plaintiff’s employment application contained sufficient information for the document to constitute a writing for purposes of the statute of limitations where that section, which was completed after the plaintiff was hired, clearly established her rate of pay, her position, her start date, and her work hours. Levens v. Campbell, 733 So. 2d 753, 1999 Miss. LEXIS 32 (Miss. 1999).

A store’s setoff counterclaim against the shopping mall in which it was located was not barred by the 3-year statute of limitations set forth in §15-1-29 where the store’s setoff defense was based on allegedly fraudulent overcharges made by the mall which implied an action arising under the lease between the store and the mall, and therefore the store’s fraud claim was subject to §15-1-49’s 6-year limitation period for an action on a written contract. Singing River Mall Co. v. Mark Fields, Inc., 599 So. 2d 938, 1992 Miss. LEXIS 135 (Miss. 1992).

Where under a sales representative agreement with a manufacturer, the manufacturer was to pay commissions on specified sliding scale for orders up to $250,000 and special commission allowances were to be established by the manufacturer for jobs greater than that amount, the 6-year statute of limitations governing obligations on written contracts was applicable rather than the 3-year statute governing actions on open account, notwithstanding that parol testimony was necessary to establish the amount due. Beacham v. Beacham, 243 So. 2d 62, 1971 Miss. LEXIS 1505 (Miss. 1971).

While the 3-year statute of limitations applies to oral and implied contracts, the statute has no application where an implied warranty arises out of and accrues from a written contract between the parties. Paul O'Leary Lumber Corp. v. Mill Equipment, Inc., 332 F. Supp. 1144, 1970 U.S. Dist. LEXIS 11009 (S.D. Miss. 1970), aff'd, 448 F.2d 536, 1971 U.S. App. LEXIS 8001 (5th Cir. Miss. 1971).

Action by seller against buyer on written order signed by buyer’s president and seller’s salesman which gives accurate description of goods purchased, price and terms of sale, stipulates that all special terms must be incorporated in order and duplicate to be recognized and order is not subject to countermand, and under which goods were shipped and accepted by buyer, is controlled by six-year statute of limitations, § 722, Code of 1942, and not by three-year statute of limitations. Dixie Pine Products Co. v. Universal Refining Products Co., 208 Miss. 45, 43 So. 2d 752, 1949 Miss. LEXIS 406 (Miss. 1949).

An action for restitution of money deposited in connection with a bid submitted for construction of a municipal sewage system and thereafter attempted to be withdrawn because of a mistake in the calculation thereof, was not taken out of the operation of the statute by a written notice of withdrawal which failed to state in writing the character of the mistake made. City of Hattiesburg v. Cobb Bros. Const. Co., 183 Miss. 482, 184 So. 630, 1938 Miss. LEXIS 260 (Miss. 1938).

A trainman’s action against railroad for damages for wrongful discharge contrary to contract between railroad and trainman’s union was based on written contract with union rather than on verbal contract of employment, and hence was subject to six-year rather than to three-year statute of limitations. Moore v. Illinois C. R. Co., 180 Miss. 276, 176 So. 593, 1937 Miss. LEXIS 92 (Miss. 1937).

Six-year period of limitations applicable to all actions for which no other period is prescribed held applicable to action against stockholders of insolvent bank for their double liability, and not three-year period applicable to actions on unwritten contracts, since double liability of a stockholder is provable by writing, and therefore is not an implied contract, but written contract with an implied promise to pay. Rather v. Moore, 179 Miss. 78, 173 So. 664, 1937 Miss. LEXIS 8 (Miss. 1937).

Three-year statute of limitations would not be applicable to action against stockholders of insolvent State bank for their double liability, even if such liability is statutory, since liability is not a “penalty” and hence six-year statute would apply. Rather v. Moore, 179 Miss. 78, 173 So. 664, 1937 Miss. LEXIS 8 (Miss. 1937).

Orders for funeral supplies setting forth description of goods purchased, price, and terms of sale, held “contracts provable by writing” upon acceptance by seller, so that action thereon, which was commenced within six years from maturity of items, was not barred by statute of limitations governing contracts not provable by writing. Champion Chemical Co. v. Hank, 174 Miss. 732, 165 So. 807, 1936 Miss. LEXIS 224 (Miss. 1936).

Written contract of guaranty, not setting out amount of indebtedness, is governed by six-year statute of limitations. W. T. Raleigh Co. v. Fortenberry, 138 Miss. 410, 103 So. 227, 1925 Miss. LEXIS 101 (Miss. 1925).

Action for loss of cotton seed is one on written contract although bill of lading did not specify amount to be transported. Illinois C. R. Co. v. Jackson Oil & Refining Co., 111 Miss. 320, 71 So. 568, 1916 Miss. LEXIS 296 (Miss. 1916).

The three-year statute is inapplicable to action on written contract. Vicksburg Waterworks Co. v. Yazoo & M. V. R. Co., 102 Miss. 504, 59 So. 825, 1912 Miss. LEXIS 81 (Miss. 1912).

A cause of action evidenced by a writing acknowledging a debt is not barred by this statute [Code 1942, § 729]. Cock v. Abernathy, 77 Miss. 872, 28 So. 18, 1900 Miss. LEXIS 47 (Miss. 1900).

Where a vendor sells for part cash, and part to be paid in installments, reserving a lien as security, the right of action arises upon a contract provable by a writing, whether the vendor proceeds on the promise contained in the deed or that implied by the acceptance of the deed, and this statute [Code 1942, § 729] does not apply. Washington v. Soria, 73 Miss. 665, 19 So. 485, 1896 Miss. LEXIS 190 (Miss. 1896).

3. Unwritten contracts, generally.

This section bars any claim as to alleged unwritten 4 year contract brought by one of the parties. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

If oral promise to devise land was not binding promisee could recover value of services performed and money advanced under agreement. Carter v. Witherspoon, 156 Miss. 597, 126 So. 388, 1930 Miss. LEXIS 193 (Miss. 1930).

Contract held unwritten one within 3-year statute of limitations. Attala Warehouse & Compress Co. v. J. N. Alexander Mercantile Co., 139 Miss. 615, 102 So. 779, 1925 Miss. LEXIS 116 (Miss. 1925).

Three-year statute bars claim for board against estate of decedent. Loviza v. Lynch, 115 Miss. 694, 76 So. 629, 1917 Miss. LEXIS 251 (Miss. 1917).

4. — Involving employment.

County court properly granted a town’s motion for a directed verdict in a town marshal’s complaint for unpaid salary compensation because the action was barred by the one-year statute of limitations for oral contracts where the minutes of a town meeting did not fully address the duties, obligations, and rate of pay for the position. Vance v. Town of Lula, 135 So.3d 924, 2013 Miss. App. LEXIS 821 (Miss. Ct. App. 2013).

Under the statute of limitations governing claims based on unwritten contracts, Miss. Code Ann.15-1-29, the former employee had until March 2, 2007, one year from the date of his termination on March 2, 2006, to file his wrongful termination claim against his former employer, a manager, and a store services company. Because he did not file his claim until March 5, 2007, it was barred by the one-year limitations period in §15-1-29. Davis v. Belk Stores Servs., 2009 U.S. Dist. LEXIS 487 (S.D. Miss. Jan. 6, 2009).

One-year statute of limitation in Miss. Code Ann. §15-1-29 applied to the former employee’s wrongful termination claim against his former employer, a manager, and a store services company (defendants) since the employee did not allege that he had a written contract of employment, and there was no proof that the employment relationship between the employee and defendants was other than an unwritten contract. Davis v. Belk Stores Servs., 2009 U.S. Dist. LEXIS 487 (S.D. Miss. Jan. 6, 2009).

Even if an employee’s quantum meruit claim was not barred due to the existence of his unwritten employment contract, the claim was barred under the one-year statute of limitations in Miss. Code Ann. §15-1-29 where the latest date upon which the employee’s claim could have accrued, which was when additional projects were awarded to the employer, presumably because of the employee’s good performance on the first project, was more than a year before the employee filed suit. United States ex rel. Shannon v. Fed. Ins. Co., 2006 U.S. Dist. LEXIS 56509 (S.D. Miss. Aug. 11, 2006), aff'd, 251 Fed. Appx. 269, 2007 U.S. App. LEXIS 21133 (5th Cir. Miss. 2007).

The defendant’s claim regarding an adjustment of retirement account funds that were in the plaintiff’s name, made in the context of an action to dissolve two corporations, sounded on an unwritten contract for employment. Hall v. Dillard, 739 So. 2d 383, 1999 Miss. App. LEXIS 157 (Miss. Ct. App. 1999).

The phrase “actions on unwritten contracts of employment” in §15-1-29 applies only to traditional employer-employee situations as opposed to contracts for professional services. Michael S. Fawer v. Evans, 627 So. 2d 829, 1993 Miss. LEXIS 533 (Miss. 1993).

Claim of plaintiff, who was discharged from employment on August 17, 1988, and did not file complaint until December 18, 1990, that defendant breached express or implied oral contract of employment, was barred by statute of limitations. Watkins v. United Parcel Service, Inc., 797 F. Supp. 1349, 1992 U.S. Dist. LEXIS 10394 (S.D. Miss.), aff'd, 979 F.2d 1535, 1992 U.S. App. LEXIS 32025 (5th Cir. Miss. 1992).

The presentation of an employee handbook to an employee some 4 or 5 months after the date of employment did not make the employment agreement a written contract and, where the action for breach of the employment agreement was not filed until more than one year after termination of employment, the action was barred. Sloan v. Taylor Machinery Co., 501 So. 2d 409, 1987 Miss. LEXIS 2269 (Miss. 1987).

Mississippi’s one-year statute of limitations for unwritten contracts of employment (Miss Code §15-1-29) applied to bar an action alleging discriminatory terminations brought under 42 USCS § 1981. White v. United Parcel Service, 692 F.2d 1, 1982 U.S. App. LEXIS 23892 (5th Cir. Miss. 1982), cert. denied, 464 U.S. 860, 104 S. Ct. 186, 78 L. Ed. 2d 165, 1983 U.S. LEXIS 1670 (U.S. 1983).

This section provides the most appropriate state statute of limitations for an employment discrimination cause of action under 42 USCS § 1981, and any such suit must thus be filed within one year after the cause of action has accrued. Jordan v. Lewis Grocer Co., 467 F. Supp. 113, 1979 U.S. Dist. LEXIS 13478 (N.D. Miss. 1979).

The maximum period of recovery of monetary damages for back wages or other damages in an employment discrimination action brought under 42 USCS §§ 1981 and 1982 was three years prior to the filing of suit, by virtue of this section’s limitations period on unwritten contracts. Williams v. Yazoo Valley-Minter City Oil Mill, Inc., 469 F. Supp. 37, 1978 U.S. Dist. LEXIS 14202 (N.D. Miss. 1978).

5. —Involving attorneys.

An attorney’s action against his or her client for fees for professional legal services rendered by the attorney to the client on open account pursuant to an unwritten agreement is subject to the 3-year limitations period prescribed by §15-1-29 for actions on an open account or any unwritten contract, not the one-year limitation period prescribed by the same statute for actions based on an unwritten contract of employment. Michael S. Fawer v. Evans, 627 So. 2d 829, 1993 Miss. LEXIS 533 (Miss. 1993).

In legal malpractice action against attorney who delayed in asserting federal tort claim until relevant limitations period had expired, fact that claim arose by virtue of oral contract securing attorney’s services did not preclude application of 6 year statute of limitations governing torts, rather than 3 year statute of limitations governing contracts. Hickox ex rel. Hickox v. Holleman, 502 So. 2d 626, 1987 Miss. LEXIS 2282 (Miss. 1987).

In a malpractice action against an attorney resulting from his issuance of defective title certificates, the six-year general statute of limitations under §15-1-49 was applicable, rather than the three-year statute of limitations governing actions on unwritten contracts under §15-1-29. United Cos. Mortg., Inc. v. Jones, 465 So. 2d 1083, 1985 Miss. LEXIS 1988 (Miss. 1985).

6. —Miscellaneous cases.

Whether lender’s claims were founded upon unwritten contracts, making them subject to the three-year limitations of Miss. Code Ann. §15-1-29, or whether they fell within the general three- year limitations of Miss. Code Ann. §15-1-49, the result was the same where (i) the last payment made upon the loans was in March 2001, (ii) the action to collect on the delinquent loans was filed in January 2005, (iii) the action to collect on the delinquent loans was filed approximately three years and ten months from the date of default, and (iv) the fact that the lender was fully aware that no payments were being made on these delinquent loans between March 2001 and January 2005 was beyond debate; thus, the claims were time-barred. Morgan v. Stevens, 989 So. 2d 482, 2008 Miss. App. LEXIS 489 (Miss. Ct. App. 2008).

An oral contract which provided that all the assets of one corporation would be transferred to a second corporation in return for which the second corporation would employ the two stockholders of the first corporation until 1983 or, if said stockholders were involuntarily terminated prior to that time, would pay to them two and one-half times the “annualized” commissions on the accounts which had been transferred by the first corporation was not a contract of employment and the trial court therefore erred in dismissing the complaint which had been filed by the involuntarily dismissed stockholders more than one year but less than three years after the cause of action accrued. Avery, Shanks & Waltman, Inc. v. Giordano-Kirby Ins. Agency, Inc., 404 So. 2d 1036, 1981 Miss. LEXIS 2238 (Miss. 1981).

Where the complainant waited approximately three years and eight months to bring suit for the recovery of his expenses in constructing a building on the defendant’s property under an oral contract, the suit was barred by the three year statute of limitations. Bryan v. Bryan, 323 So. 2d 84, 1975 Miss. LEXIS 1552 (Miss. 1975).

Where it appeared that on the death of one partner, the surviving partner had agreed to hold the shares of two of the decedent’s heirs as an active trust for their benefit until demand was made by them for payment of the principal, that all of the parties to the agreement had died and the estate of the surviving partner had been administered, with due notice given to creditors, a bill filed by heirs of the first deceased partner, more than three and one-half years after the death of the surviving partner and after the estate had been administered and the personal property distributed, and without a claim having been presented to the administratrix of his estate, to fix and impose a money decree upon the administratrix and the heirs at law of the surviving partner was barred by the statute relating to limitation of actions on unwritten contracts. Whitaker v. Davenport, 193 Miss. 523, 10 So. 2d 202, 1942 Miss. LEXIS 135 (Miss. 1942).

Action to recover money deposited by bidder for municipal sewer construction contract guaranteeing that it would enter into contract upon acceptance of bid commenced more than three years but less than six years after cause of action arose would be barred by three-year statute of limitations applicable to actions on unwritten contracts only in case of oral withdrawal of bid if written record had been kept of proceedings of city’s mayor and commissioners in reference to matter. City of Hattiesburg v. Cobb Bros. Const. Co., 174 Miss. 20, 163 So. 676, 1935 Miss. LEXIS 35 (Miss. 1935).

7. Implied contract.

Law imposed an obligation on the part of the mother to repay her son the $85,000 he expended to pay for her needed care; however, because the son wrote his last check to his mother in November 2009, the implied contract with his mother ended at that time, triggering the three-year statute of limitations, and the ability of the representative of the son’s estate to pursue the estate’s right to repayment ended after November 2012. Because the representative did not file a claim on behalf of the son’s estate until March 2013, the representative waited too late to assert the son’s right to repayment. Holmes v. Turner (In re Will & Estate of Holmes), 188 So.3d 1229, 2015 Miss. App. LEXIS 445 (Miss. Ct. App. 2015), cert. denied, 188 So.3d 575, 2016 Miss. LEXIS 167 (Miss. 2016).

In order for an implied promise to be outside the operation of this section [Code 1942, § 729], it must be to perform a contract, the terms of which are written. Prince v. Prince, 190 Miss. 309, 200 So. 126, 1941 Miss. LEXIS 48 (Miss. 1941).

An action by an accommodation maker against the maker of a promissory note for reimbursement of payments made on the note is within the purview of this section [Code 1942, § 729], since his rights as against the maker on paying the note were not set out therein but rested on what effect the law would give to such payment and in view of the fact that the payments made by the plaintiff were not provable by any writing but rested in parol. Prince v. Prince, 190 Miss. 309, 200 So. 126, 1941 Miss. LEXIS 48 (Miss. 1941).

In shipper’s action for freight charges exceeding those authorized by Railroad Commission, three-year statute applied. Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co., 172 Miss. 630, 172 Miss. 634, 158 So. 778, 159 So. 838, 160 So. 564, 1935 Miss. LEXIS 95 (Miss.), amended, 172 Miss. 654, 159 So. 838 (Miss. 1935).

An obligation to repay interest collected upon a usurious agreement is in its nature an implied contract, and suit thereon will be barred within three years after the cause of action accrued. Beck v. Tucker, 147 Miss. 401, 113 So. 209, 1927 Miss. LEXIS 342 (Miss. 1927); Buntyn v. National Mut. Bldg. & Loan Ass'n, 86 Miss. 454, 38 So. 345, 1905 Miss. LEXIS 1 (Miss. 1905).

Suit by buyer of lumber to recover original consideration and freight paid after rescission, on an implied contract, is barred in 3 years. Warren-Godwin Lumber Co. v. Lumber Mineral Co., 120 Miss. 346, 82 So. 257, 1919 Miss. LEXIS 91 (Miss. 1919).

Action by railway to recover freight charges barred in 3 years where writings introduced only showed amount collected from defendant as being less than what law imposed, there being only an implied contract for the difference. D. S. Pate Lumber Co. v. Southern R. Co., 115 Miss. 402, 76 So. 481, 1917 Miss. LEXIS 216 (Miss. 1917).

Under former enactment, this section [Code 1942, § 729] was held to apply only to express contracts and was not applicable to implied contracts; accordingly it did not apply to an action against a city to recover money illegally coerced as a privilege tax. Musgrove v. Jackson, 59 Miss. 390, 1882 Miss. LEXIS 123 (Miss. 1882).

8. Accounts.

Where no summons was issued immediately following the filing of a declaration on an open account, and the actual issuance of the summons did not occur until more than three years following the time when a cause of action accrued, the suit was barred by the statute of limitations. Erving's Hatcheries, Inc. v. Garrott, 250 Miss. 701, 168 So. 2d 52, 1964 Miss. LEXIS 490 (Miss. 1964).

Ten-year limitation period of § 709, Code of 1942, applies to a bill to set aside a deed and to hold grantee as trustee of the land for benefit of complainants, neither the three-year limitation period of this section [Code 1942, § 729], nor the six-year period of Code 1942, § 722, being applicable when accounting feature contained in bill is merely incidental. Burton v. Gibbes, 204 Miss. 248, 37 So. 2d 285, 1948 Miss. LEXIS 359 (Miss. 1948).

Items of account for funeral supplies sold by wholesaler for which no written orders were proved, and which matured more than three years before commencement of action thereon, held barred by limitations. Champion Chemical Co. v. Hank, 174 Miss. 732, 165 So. 807, 1936 Miss. LEXIS 224 (Miss. 1936).

Advances of money and supplies made by lessor to lessee constitute an “open account” so as to require action thereon within three years after cause of action accrued, notwithstanding deed of trust given by lessee provided that advancements should be secured by deed, since writing was insufficient to make debt one acknowledged in writing under six-year statute of limitations. Blount v. Miller, 172 Miss. 492, 160 So. 598, 1935 Miss. LEXIS 157 (Miss. 1935).

Open account is an unwritten contract where deed of trust securing same fails to specify a definite debt, and is barred by 3-year statute. Hembree v. Johnson, 119 Miss. 204, 80 So. 554, 1918 Miss. LEXIS 26 (Miss. 1918).

The statute [Code 1942, § 729] does not apply to the claim of a member of the board of supervisors for compensation under § 8 of the Act of 1890 (Laws 1890, c 250), since such claim does not rest in open account, the six-year statute being applicable. Madison County v. Collier, 79 Miss. 220, 87 Miss. 204, 30 So. 610 (Miss. 1905).

A judgment by default in an action upon an open account was taken, shown by the record to be void, the defendant not being summoned, and the case went off the docket. Eleven years thereafter, plaintiff, treating the suit as pending, had the defendant summoned. Held, that as the original cause of action was barred, and the judgment, if valid, was also barred, defendant was protected by the statute. Berkson v. Coen, 71 Miss. 650, 16 So. 204, 1893 Miss. LEXIS 110 (Miss. 1893).

9. —Acknowledgments.

Statute of limitations, applicable to all but two items on debit and credit open account, was not tolled by partial payment on the account where there was no written acknowledgment of indebtedness or promise to pay by the debtor. McArthur v. Acme Mechanical Contractors, Inc., 336 So. 2d 1306, 1976 Miss. LEXIS 1552 (Miss. 1976).

The verbal acknowledgment of the correctness of an account, making it an account stated, will not avoid the statute applicable to open accounts. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938); Floyd v. Pearce, 57 Miss. 140, 1879 Miss. LEXIS 33 (Miss. 1879).

Where defendant, by sworn plea, expressly denies that he wrote, signed, or authorized letter to plaintiff acknowledging correctness of written account sued on, and there is no evidence to contrary, denial must be accepted as true. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938).

10. Evidence.

In an action by an insurance agent to recover from insured premiums paid on his behalf when such insured failed to pay them, under a contract between the parties, the burden was on insured to show that the premiums sued for had been made more than three years prior to the commencement of the action. Neely v. Johnson-Barksdale Co., 194 Miss. 529, 12 So. 2d 924, 1943 Miss. LEXIS 86 (Miss. 1943).

Where an executor or administrator is sued on a probated account against the estate he is administering, some of the items of which appear on the face of the account, as probated, to have been barred by the statute of limitations at the time of the decedent’s death, and the executor or administrator pleads the statute of limitations in bar thereof, the plaintiff cannot in reply thereto allege, and offer evidence of, facts not appearing on the probated claim disclosing that the decedent was estopped at the time of his death from pleading the statute of limitations. Whitehead v. Puffer, 187 Miss. 193, 192 So. 566, 1940 Miss. LEXIS 199 (Miss. 1940).

Where buyer sought to take action for fraudulent sale of bonds out of three-year statute of limitations by showing seller acknowledged obligation to deliver bonds in writing within time limited, instrument which purported to be nothing more than acknowledgment of receipt of money for bonds delivered could not be supplemented by parole evidence that it was given for promise to procure and deliver bonds in future. First Nat'l Bank v. Johnson, 177 Miss. 634, 171 So. 11, 1936 Miss. LEXIS 268 (Miss. 1936).

11. Pleading.

The defense afforded by this section [Code 1942, § 729] must be pleaded in order for the defendant to take advantage of it. Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129, 1969 U.S. App. LEXIS 10523 (5th Cir. Miss. 1969).

The statute [Code 1942, § 729] may not be invoked because defendants were not again summoned after amendment of the declaration, where the order permitting amendment was by agreement. J. R. Watkins Co. v. Welborn, 243 Miss. 527, 138 So. 2d 296, 1962 Miss. LEXIS 371 (Miss. 1962).

The striking out of some of the averments in defendant’s replication, setting up fraudulent concealment of the note on which the action was based as a defense to plaintiff’s plea of the statute of limitations to the defendant’s counterclaim, was not reversible error where the averments of the replication which were not stricken were sufficient to present the issue of the alleged fraudulent concealment of the claim. Williams Yellow Pine Co. v. Williams, 187 Miss. 425, 193 So. 1, 1940 Miss. LEXIS 214 (Miss. 1940).

Where defendant pleaded the general issue and the three-year statute of limitations, the granting of permission to file a sworn plea, at the trial and over plaintiff’s objections, denying writing of a letter alleged to constitute acknowledgment of indebtedness removing the bar of the three-year statute was within trial court’s discretion. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938).

The alleged error in permitting appellant to file a sworn plea at trial denying writing of letter alleged to constitute acknowledgment of debt taking case out of three-year statute of limitations could not be considered on appeal in absence of cross-assignment of error by appellee. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938).

Plea of statute of limitations held properly in issue by request for a peremptory instruction, though plea was not read to court or jury, where plea was on file several days before trial and was developed on cross-examination of plaintiff’s witnesses. First Nat'l Bank v. Johnson, 177 Miss. 634, 171 So. 11, 1936 Miss. LEXIS 268 (Miss. 1936).

12. Running of limitation period.

After an employee was terminated, and his employers refused to reimburse his expenses, the statute of limitations for his breach of contract did not bar the claim as the breach occurred less than a year before the complaint was filed. Smith v. Antler Insanity, LLC, 58 F. Supp. 3d 716, 2014 U.S. Dist. LEXIS 152484 (S.D. Miss. 2014).

Judgment for real estate seller was affirmed under Miss. Code Ann. §15-1-29 and Miss. Code Ann. §15-1-49 because, applying the three-year statute of limitations, the seller was entitled to collect installment payments beginning three years ago; the purchasers would have been unjustly enriched if allowed to retain possession of the property without being responsible for the remaining debt. Kersey v. Fernald, 911 So. 2d 994, 2005 Miss. App. LEXIS 699 (Miss. Ct. App. 2005).

In an action arising out of an oral agreement between cotton merchants to enter into a joint venture with no definite date for its termination, the act was not barred by the statute of limitations where the last transaction of the venture took place on July 24, 1970, and the action was commenced sometime prior to December 12, 1972; nor was the action barred by §15-3-1 where the oral agreement had been of an indefinite duration and susceptible of performance within 15 months and where the agreement had been substantially performed by both parties. Beane v. Bowden, 399 So. 2d 1358, 1981 Miss. LEXIS 2030 (Miss. 1981).

Where a cause of action for labor and materials furnished to improve the defendant’s property located in Mississippi accrued in this state and the defendant was a nonresident of Mississippi at the time of such accrual and remained a nonresident thereafter, the three-year statute of limitations did not run to bar the claim. Gross v. Thomas, 187 So. 2d 307, 1966 Miss. LEXIS 1344 (Miss. 1966).

Nonresidence of plaintiff in action for purchase price of goods precludes running of statute against counterclaim based upon nonconformity of goods to description. Hedges v. Louisiana Agricultural Supply Co., 238 Miss. 805, 120 So. 2d 136, 1960 Miss. LEXIS 467 (Miss. 1960).

Statute of limitations runs against claim for damages from inferior quality of goods purchased, from time of delivery, and not from time when goods were ordered. Hedges v. Louisiana Agricultural Supply Co., 238 Miss. 805, 120 So. 2d 136, 1960 Miss. LEXIS 467 (Miss. 1960).

A declaration on December 30, 1950, alleging that defendant became indebted to the plaintiff for professional services on or about February 19, 1947, for one amount and on or about November 11, 1947, for another amount, and it was not specifically alleged that the amounts became due and payable on the dates that the indebtedness accrued therefor, the declaration did not necessarily show on its face that the claim was barred by the three-year statute of limitations. Anderson v. Rieveley, 218 Miss. 211, 67 So. 2d 249, 1953 Miss. LEXIS 531 (Miss. 1953).

The rule that facts which prevent the running of the statute of limitations against a probated claim should appear in some form on probate thereof and cannot be made to appear for the first time by evidence offered when claim is under consideration in administration of deceased’s estate, does not apply to services and necessaries furnished by a brother to his insane sister, since limitations in such case does not begin to run until her death. Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

Facts which prevent the statute of limitations from running against a probated claim should appear in some form on the probate thereof and cannot be made to appear for the first time by evidence offered when the claim is under consideration in the administration of the decedent’s estate. Boggan v. Scruggs, 200 Miss. 747, 29 So. 2d 86, 1947 Miss. LEXIS 358 (Miss. 1947), overruled, Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

The statute does not begin to run against general deposits, wrongfully paid out by bank, until the depositor has made demand on the bank for the money by check, order, draft or other writing. Letts v. Hancock Bank of Gulfport, 195 Miss. 519, 15 So. 2d 422, 15 So. 2d 774, 1943 Miss. LEXIS 151 (Miss. 1943).

Where rentals under an oil, gas and mineral lease, which were to be paid to bank as depository of lessor, were remitted by writing directing deposit to lessor’s account, but were paid by the bank to third person on forged receipts, after death of lessor, of which neither lessee nor bank had knowledge, and neither lessor’s administrator not grantees of the land had actual knowledge of the lease at the times when such wrongful payments were made, the bank was not relieved by limitation statute of the duty to pay such money to the persons entitled thereto, where no demand was made by lessor’s administrator or the grantees of the property. Letts v. Hancock Bank of Gulfport, 195 Miss. 519, 15 So. 2d 422, 15 So. 2d 774, 1943 Miss. LEXIS 151 (Miss. 1943).

Bank chargeable with interest only from the date demand was made upon the bank for payment of the money. Letts v. Hancock Bank of Gulfport, 195 Miss. 519, 15 So. 2d 422, 15 So. 2d 774, 1943 Miss. LEXIS 151 (Miss. 1943).

Where from inception of loan in 1920 to foreclosure in 1934 there was continuous transaction of renewals and payments, and contract was usurious, statute of limitations was properly applied in permitting credit of payments on principal debt. Hardin v. Grenada Bank, 182 Miss. 689, 180 So. 805, 1938 Miss. LEXIS 157 (Miss. 1938).

Notice to buyer of corporate bonds of default of corporation on coupons and of resulting organization of bondholders’ protective committee held sufficient notice of falsity of seller’s representations that bonds were safe investment to start running of three-year limitation, under statute providing that period of limitation should run from time fraud might have been discovered by reasonable diligence. First Nat'l Bank v. Johnson, 177 Miss. 634, 171 So. 11, 1936 Miss. LEXIS 268 (Miss. 1936).

13. — Accrual of cause of action.

Purported partners alleged to have suffered damages as a result of another purported partner’s refusal to turn over proceeds from the sale of a property, as well as the remaining funds borrowed for improvements to the property. Thus, the purported partners’ intentional tort claims and partnership and breach of fiduciary duty claims were timely asserted within the applicable statutes of limitation. Latham v. Johnson, 262 So.3d 569, 2018 Miss. App. LEXIS 314 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 798, 2019 Miss. LEXIS 48 (Miss. 2019).

Circuit court properly granted an employer’s motion to dismiss–an employee’s action for assault, battery, intentional and negligent infliction of emotional distress, and breach of an employment contract as untimely because, while the employee was underage when employer allegedly began to sexually abuse her, she failed to show that, when her employer allegedly sexually abused her, she was of unsound mind, legal infancy, suffered a latent injury, or that there was something secretive or inherently undiscoverable about the alleged acts or wrongdoing, the discovery rule was inapplicable where the alleged wrongful acts were physical and the employee was aware of the wrongdoing when it happened. Reeg v. Keel, 174 So.3d 309, 2015 Miss. App. LEXIS 425 (Miss. Ct. App. 2015).

Although a trial court correctly determined that an oral contract existed rather than an open account since there was no final and certain price, summary judgment should not have been granted in favor of a company because there was a genuine issue of material fact as to when payment for barge repairs was due, and equitable estoppel applied to a statute of limitations argument due to apparent repeated assurances that payment would be received upon the sale of the barge. Douglas Parker Elec., Inc. v. Miss. Design & Dev. Corp., 949 So. 2d 874, 2007 Miss. App. LEXIS 69 (Miss. Ct. App. 2007).

Simple demand note was matured at the date of its execution without actual demand being required, and an actual demand was required to begin the running of the statute of limitations only where it was clear that the parties themselves actually intended for a demand to be made; testimony reflected that only interest on the loan was to be paid until an actual demand for payment was made, and accordingly the statute of limitations did not bar recovery of the cash loan. Associated Nursing, Inc. v. Sides, 2007 U.S. Dist. LEXIS 19324 (N.D. Miss. Mar. 19, 2007).

Employee’s breach of contract claim against his former employer was barred under the one-year statute of limitations in Miss. Code Ann. §15-1-29 because, inter alia, the latest date upon which the employee’s claim could have accrued, which was when additional projects were awarded to the employer, presumably because of the employee’s good performance on the first project, was more than a year before the employee filed suit. United States ex rel. Shannon v. Fed. Ins. Co., 2006 U.S. Dist. LEXIS 56509 (S.D. Miss. Aug. 11, 2006), aff'd, 251 Fed. Appx. 269, 2007 U.S. App. LEXIS 21133 (5th Cir. Miss. 2007).

Services rendered by a daughter to her father until his death under an oral agreement to compensate her therefor, constituted a continuous claim not barred by the three-year statute of limitation. Van Zandt v. First Nat'l Bank, 220 Miss. 127, 70 So. 2d 327, 1954 Miss. LEXIS 417 (Miss. 1954); Stephens v. Duckworth, 188 Miss. 626, 196 So. 219, 1940 Miss. LEXIS 66 (Miss. 1940).

Where in 1943 a bank by mistake credited a deposit to an account of a brother of depositor and both accounts remained inactive until January 1949, when the brother withdrew his account and the bank did not discover the mistake until March 1951 when the active depositor presented his passbook, the cause of action for restitution of the funds did not arise until January 1949 and neither the three- nor the six-year statutes of limitation barred suit thereon brought on June 1951. Van Zandt v. First Nat'l Bank, 220 Miss. 127, 70 So. 2d 327, 1954 Miss. LEXIS 417 (Miss. 1954).

Where a suit was instituted in 1951 to recover for services rendered during 1946 to 1948, to decedent who died in 1950, and this suit was based on promise that claimant would be taken care of for her services at decedent’s death, the three-year statute of limitations was not a bar to the action. In re Whittington's Estate, 217 Miss. 457, 64 So. 2d 580, 1953 Miss. LEXIS 451 (Miss. 1953).

Where more than three years has elapsed since on oral agreement for furnishing and installation of an ice cream freezing unit was entered into and unit received by the plaintiff, an action for breach of oral contract was not barred by the statute of limitations since the agreement was in part based on two contingencies, the sale of the existing equipment or its breaking down and the action was started within three years after the equipment ceased to function. Southern Wholesalers v. Stennis Drug Co., 214 Miss. 461, 59 So. 2d 78, 1952 Miss. LEXIS 491 (Miss. 1952).

A contract for board, lodging and services, whether expressed or implied, with no time fixed for payment, or for the termination of the contract, is a continuous one and the statute of limitations is inoperative until the contract is terminated by death. Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

Statute of limitations against claim of brother for services and necessaries furnished to insane sister with expectation of re-payment from the property does not begin to run until the death of such sister. Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

The fact that the claim of a brother for services and necessaries furnished to his insane sister, under expectation of repayment from her property, was divided into monthly and yearly periods, cannot effect an acceleration of the commencement of the running of the statute of limitations, for limitations could only start to operate at the death of the deceased. Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

A cause of action for payment of personal services performed in return for promise of the devise of property did not arise until the death of the promisor without having made such a devise. Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

The right of action by a subrogee accrues when and not before the date of the payment or payments which makes him a subrogee, and the statute of limitations begins to run against him from and not before the date, or dates of such payments by him. Neely v. Johnson-Barksdale Co., 194 Miss. 529, 12 So. 2d 924, 1943 Miss. LEXIS 86 (Miss. 1943).

The statute does not commence to run on a claim for support until the death of the person supported, where there was no definite time for termination of the contract for such support and the obligation was continuing. Lee v. Lee's Estate, 186 Miss. 636, 191 So. 661, 1939 Miss. LEXIS 269 (Miss. 1939).

Cause of action by reason of false certificate to abstract accrued, as respected limitations, at time abstract was certified to and delivered. Johnson v. Crisler, 156 Miss. 266, 125 So. 724, 1930 Miss. LEXIS 155 (Miss. 1930).

Item on account held barred by 3-year limitation; custom that accounts with farmer were not due until October 1 of the year in which the items were sold held not proved. M. G. Travis & Co. v. Mosley, 148 Miss. 368, 114 So. 628, 1927 Miss. LEXIS 66 (Miss. 1927).

Where goods delivered in installments on 60 days, 3-year statute begins to run 60 days after delivery of last installment. Dewees v. Bostwick Lumber & Mfg. Co., 96 Miss. 253, 50 So. 865, 1909 Miss. LEXIS 51 (Miss. 1909).

The right of a surety to enforce contribution from its cosureties arises upon payment which discharges the sureties, and the statute runs from that time and not from the accrual of the right of action on the original obligation. Pass v. Board of Sup'Rs., 71 Miss. 426, 14 So. 447 (Miss. 1893).

Credits in money and farm products upon an open account for schooling, the items being mainly for tuition, books, etc., does not make the account a mutual and current open account, and the statute runs against the several items from their dates. Allen v. Hillman, 69 Miss. 225, 13 So. 871, 1891 Miss. LEXIS 174 (Miss. 1891).

14. —New cause of action.

Where an attorney brought a suit in chancery against a client for attorney’s fee, an amended bill introduced no new cause of action and stated no new facts as the basis for recovery and it simply made definite the allegation as to when the attorney was to be paid, and thereby perfected or amplified the cause of action set up in the original pleading and related back to the commencement of the action, the running of statute of limitations was tolled. Harrison v. Landrum, 223 Miss. 207, 78 So. 2d 132, 1955 Miss. LEXIS 370 (Miss. 1955).

Where on May 6, 1953, a drug company brought an action against a former partner for indebtedness due to the partnership for drugs sold, and where on July 13, 1953 the drug company filed an amendment to its declaration which consisted of a sworn itemized statement of account with copies of the original invoices of merchandise sold and delivered to the partner during the period from May 10, 1950, to June 2, 1950, this amendment introduced no new cause of action and the statute of limitations did not apply. McKesson & Robbins, Inc. v. Coker, 222 Miss. 774, 77 So. 2d 302, 1955 Miss. LEXIS 662 (Miss. 1955).

15. Miscellaneous.

Documents signed by plaintiff employees in a Worker Adjustment and Retraining Notification Act (WARN), 29 U.S.C.S. § 2101 et seq., during orientation, setting forth their rate of pay and other information, did not constitute a written employment contract within the meaning of Miss. Code. Ann. §15-1-49; Miss. Code. Ann. §15-1-29 set forth the appropriate statute of limitations in the case. Brewer v. Am. Power Source, Inc., 517 F. Supp. 2d 881, 2007 U.S. Dist. LEXIS 74154 (N.D. Miss. 2007), aff'd, 291 Fed. Appx. 656, 2008 U.S. App. LEXIS 19338 (5th Cir. Miss. 2008).

In a dispute involving a promissory note, an issue of which statute of limitations applied was not decided because the creditor never filed suit to foreclose on the note, and the creditor never filed collection on the note. Chimento v. Fuller, 965 So. 2d 668, 2007 Miss. LEXIS 543 (Miss. 2007).

Fact that a former wife had a high paying job and a husband voluntarily left his employment was insufficient to show a material change in circumstances justifying a modification of alimony; however, a chancery court did not err by fashioning the wife a remedy from an escalation clause in a property agreement, and the three-year statute of limitations applied since it was a contract matter. D'Avignon v. D'Avignon, 945 So. 2d 401, 2006 Miss. App. LEXIS 549 (Miss. Ct. App. 2006), overruled, Moseley v. Smith, 180 So.3d 667, 2014 Miss. App. LEXIS 689 (Miss. Ct. App. 2014).

In action by plaintiff who sought to be paid for interview given by him, which resulted in book about him and his family, where plaintiff’s quantum meruit claims against publisher and author of book were time barred under §15-1-29,15-1-29 also barred plaintiff’s quantum meruit claims against foreign broadcasting corporation that filmed documentary based on book and cable television channel that aired documentary, as plaintiff failed to show that he rendered any new services to television defendants after he provided interview. Haynes v. Lemann, 921 F. Supp. 385, 1996 U.S. Dist. LEXIS 4382 (N.D. Miss. 1996).

A bad faith breach of contract cause of action arising from an attorney’s alleged failure to properly pursue an appeal alleged the tort of bad faith, not a breach of contract per se, and was therefore governed by the 6-year general limitation in §15-1-49 rather than the 3-year statute of limitations in §15-1-29 for actions based on unwritten contracts. Hurst v. Southwest Miss. Legal Servs. Corp., 610 So. 2d 374, 1992 Miss. LEXIS 751 (Miss. 1992), overruled, Rains v. Gardner, 731 So. 2d 1192, 1999 Miss. LEXIS 47 (Miss. 1999).

When a writing or memorandum is lost or destroyed, both its existence and contents may be proven by parole evidence; the loss or destruction of a memorandum does not deprive it of effect under the Statute of Frauds. Thus, §15-1-29, §15-1-73 and the Statute of Frauds (§15-3-1) did not bar an action to enforce a loan agreement which was allegedly destroyed in a fire where the plaintiff sufficiently proved the existence and contents of the destroyed memorandum. Williams v. Evans, 547 So. 2d 54, 1989 Miss. LEXIS 335 (Miss. 1989).

Action against attorney for negligence in preparing title certificate is governed by 6 year statute of limitations (§15-1-49), not by 3 year statute (§15-1-29). United Cos. Mortg., Inc. v. Jones, 465 So. 2d 1083, 1985 Miss. LEXIS 1988 (Miss. 1985).

In a legal malpractice action the six-year statute of limitations provided in §15-1-49 governed the action rather than §15-1-29, where plaintiffs clients’ declaration charging that the attorney negligently conducted the legal representation of the plaintiffs by failing to list certain priority claims that could have been satisfied from the assets of the bankruptcy estate sounded in tort, regardless of the oral contract under which the attorney undertook legal representation of the plaintiffs. Hutchinson v. Smith, 417 So. 2d 926, 1982 Miss. LEXIS 2098 (Miss. 1982).

The availability of the defense afforded by this section [Code 1942, § 729] will depend on the particular facts in each case. Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129, 1969 U.S. App. LEXIS 10523 (5th Cir. Miss. 1969).

In an action in federal court based on diversity, even though it appears from the papers filed by the plaintiff that so much of the amount sued for on an open account will be barred by operation of this section [Code 1942, § 729] to reduce the amount in controversy to less than $10,000, this fact alone will not serve to deprive the court of jurisdiction, for the issue is a factual one requiring adjudication on the merits. Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129, 1969 U.S. App. LEXIS 10523 (5th Cir. Miss. 1969).

This section [Code 1942, § 729] of the statute was not applicable to a situation where a donor delivered certain promissory notes secured by mortgage to a bank for certain beneficiaries and, the bank being incapable of performing the trust, the donor assumed control of such notes for the benefit of the beneficiaries and through his unauthorized act the notes became valueless giving rise to an action against his executor, since there existed a trust in regard to the notes and their intended security not cognizable by the courts of the common law to the enforcement of which the ten-year statute of limitations applied. Yandell v. Wilson, 182 Miss. 867, 183 So. 382, 1938 Miss. LEXIS 202 (Miss. 1938).

Mississippi six-year statute, not three-year statute, applied to action for use and occupation of river bank controlled by Louisiana law. Louisiana & M. R. T. Co. v. Long, 159 Miss. 654, 131 So. 84, 1930 Miss. LEXIS 358 (Miss. 1930).

Mortgagee’s action against parties cashing check on unauthorized indorsement for award in condemnation proceeding was barred by three-year statute, since action was based on the canceled check with the indorsements of the parties on the back thereof, there being no implied promise to pay deducible from the instrument itself. Federal Land Bank v. Collins, 156 Miss. 893, 127 So. 570, 1930 Miss. LEXIS 233 (Miss. 1930).

Replevin action involving ownership of personal property is not within the purview of this section [Code 1942, § 729]. Shinault v. Shinault, 146 Miss. 900, 112 So. 593, 1927 Miss. LEXIS 256 (Miss. 1927).

Where land subject to mortgage was foreclosed and the former owner induced another to purchase it from the mortgagee who had purchased it at the foreclosure sale under an oral agreement to repurchase, former owner could not, after default, defend action to cancel his claims to the land by setting up either the three- or six-year statutes of limitation, since under the circumstances nothing but adverse possession for ten years could avail him. Gentry v. Gamblin, 79 Miss. 437, 28 So. 809, 1901 Miss. LEXIS 4 (Miss. 1901).

RESEARCH REFERENCES

ALR.

What constitutes a contract in writing within statute of limitations. 3 A.L.R.2d 809.

Limitation of actions as applied to account stated. 51 A.L.R.2d 331.

When is account “mutual” for purposes of rule that limitations run from last item in open, current, and mutual account. 45 A.L.R.3d 446.

What statute of limitations governs damage action against attorney for malpractice. 2 A.L.R.4th 284.

What statute of limitations governs physician’s action for wrongful denial of hospital privileges. 3 A.L.R.4th 1214.

Debtor’s restrictive language accompanying part payment as preventing interruption of statute of limitations. 10 A.L.R.4th 932.

When statute of limitations commences to run on right of partnership accounting. 44 A.L.R.4th 678.

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Contracts, Form 13.1 (answer – defense – statute of limitations).

CJS.

54 C.J.S., Limitations of Actions §§ 86-91.

Law Reviews.

1978 Mississippi Supreme Court Review: Commercial Law. 50 Miss. L. J. 41, March 1979.

Cross References —

Recovery of attorney’s fees in suit on open account, see §11-53-81.

JUDICIAL DECISIONS

1. What are mutual and open current accounts.

2. Persons to whom applicable.

3. Accrual of cause of action.

4. —Effect of custom and usage.

1. What are mutual and open current accounts.

Cash payments upon an open account will not create a “mutual and open current account.” Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938); Abbey v. Owens, 57 Miss. 810, 1880 Miss. LEXIS 64 (Miss. 1880).

Where an account for goods sold, even if originally a mutual and open account, was past due more than three years before suit thereon was filed, cash payments reducing balance due did not make it a “mutual and open current account” within the meaning of this section [Code 1942, § 730]. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938).

An account is not a mutual account, though containing many items where the defendant’s items were merely payments, and he had no independent account against his creditor. George D. Barnard & Co. v. Sykes, 72 Miss. 297, 18 So. 450, 1894 Miss. LEXIS 147 (Miss. 1894).

If a merchant sell supplies to his customer, and receive from him cotton, which he sells for him and credits the net proceeds of the cotton to the account against the customer for supplies, the account thus kept will be a “mutual and open current account.” Abbay v. Hill, 64 Miss. 340, 1 So. 484, 1886 Miss. LEXIS 70 (Miss. 1886).

2. Persons to whom applicable.

Farmer paying account partly with cotton and livestock, credited on account, was not “trader” within statute of limitation. M. G. Travis & Co. v. Mosley, 148 Miss. 368, 114 So. 628, 1927 Miss. LEXIS 66 (Miss. 1927).

3. Accrual of cause of action.

In an action arising out of an oral agreement between cotton merchants to enter into a joint venture with no definite date for its termination, the action was not barred by the statute of limitations where the last transaction of the venture took place on July 24, 1970, and the action was commenced sometime prior to December 12, 1972; nor was the action barred by §15-3-1 where the oral agreement had been of an indefinite duration and susceptible of performance within 15 months and where the agreement had been substantially performed by both parties. Beane v. Bowden, 399 So. 2d 1358, 1981 Miss. LEXIS 2030 (Miss. 1981).

Action for balance upon mutual and open current account barred in 3 years from date of last item. W. W. Walley & Son v. L. N. Dantzler Co., 114 Miss. 601, 75 So. 433, 1917 Miss. LEXIS 65 (Miss. 1917).

Cause of action for price of fertilizer did not accrue until time for settlement under contract. Gulfport Fertilizer Co. v. McMurphy, 114 Miss. 250, 75 So. 113, 1917 Miss. LEXIS 27 (Miss. 1917).

4. —Effect of custom and usage.

A local usage as to time of payment may be so well known that it will be implied into a contract unless a different time were agreed. Hendricks v. Robinson & Stevens, 56 Miss. 694, 1879 Miss. LEXIS 195 (Miss. 1879); Hunter v. Wilkinson, 44 Miss. 721, 1871 Miss. LEXIS 33 (Miss. 1871).

It is competent to show, by custom of merchants, that when cash is not paid for merchandise the sale is on a credit for a certain time. Effinger v. Henderson, 33 Miss. 449, 1857 Miss. LEXIS 57 (Miss. 1857).

RESEARCH REFERENCES

ALR.

Limitation of actions as applied to account stated. 51 A.L.R.2d 331.

When is account “mutual” for purposes of rule that limitations run from last item in open, current, and mutual account. 45 A.L.R.3d 446.

When statute of limitations commences to run on right of partnership accounting. 44 A.L.R.4th 678.

CJS.

54 C.J.S., Limitations of Actions §§ 186-191.

Cross References —

Limitations on prosecutions generally, see §§99-1-5 et seq.

JUDICIAL DECISIONS

1. In general.

2. Actions subject to limitation.

3. Actions not subject to limitation.

4. Pleading.

1. In general.

A statute is penal in character within the purview of this section [Code 1942, § 731] when its controlling purpose is to impose a punishment for violation of its provisions. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

Law of the forum determines whether or not an action or suit is one to recover a “penalty” within the purview of this section [Code 1942, § 731]. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

Whether an action under the Federal Fair Labor Standards Act for recovery of overtime compensation, liquidated damages, and attorney’s fees constitutes an action for “penalty” within the meaning of this section [Code 1942, § 731], is for the determination of the Supreme Court of Mississippi rather than that of the Federal Supreme Court. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

This section [Code 1942, § 731] is not remedial, but imposes a penalty. State use of Rogers v. Newton, 191 Miss. 611, 3 So. 2d 816, 1941 Miss. LEXIS 166 (Miss. 1941).

2. Actions subject to limitation.

Section95-5-10(2) is subject to the statute of limitations provided in §95-5-29 because it involves specific penalties; §95-5-10(1) is not subject to §95-5-29, but is subject to §15-1-33 because it is a penalty controlled by a one year statute of limitation. McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 1998 Miss. LEXIS 272 (Miss. 1998), overruled in part, Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

Tenant, who became trespasser by holding over beyond expiration of term, is liable for double rent thereafter, but only for that period dating from one year prior to suit. Sherrill v. Stewart, 199 Miss. 216, 23 So. 2d 915, 1945 Miss. LEXIS 282 (Miss. 1945).

The one-year limitation for recovery of a penalty under this section [Code 1942, § 731] is applicable to an action to recover double rent under Code 1942, § 947. Sherrill v. Stewart, 197 Miss. 880, 21 So. 2d 11, 1945 Miss. LEXIS 319 (Miss. 1945).

“Liquidated damages” of an additional equal amount for nonpayment of overtime compensation under the Federal Fair Labor Standards Act constitutes a “penalty” within the meaning of this section [Code 1942, § 731] so that recovery therefor is barred if the action is not commenced within one year. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

In an action on the bond of a county superintendent of education and on pay certificates issued by him in an amount in excess of the school receipts or budget estimates for the current fiscal year, it was proper to hold that the liability imposed by the statute upon the superintendent to holders of the certificate was a “penalty,” and that therefore action thereon was barred by limitation when not commenced within one year after the cause of action accrued. State use of Rogers v. Newton, 191 Miss. 611, 3 So. 2d 816, 1941 Miss. LEXIS 166 (Miss. 1941).

In shipper’s action for freight charges exceeding those authorized by Railroad Commission and for 100 per cent penalty, one-year limitation statute barred penalty. Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co., 172 Miss. 630, 172 Miss. 634, 158 So. 778, 159 So. 838, 160 So. 564, 1935 Miss. LEXIS 95 (Miss.), amended, 172 Miss. 654, 159 So. 838 (Miss. 1935).

Motion against sheriff on official bond is barred by this section [Code 1942, § 731]. Bank of Hickory v. May, 119 Miss. 239, 80 So. 704, 1918 Miss. LEXIS 35 (Miss. 1918).

3. Actions not subject to limitation.

Supreme Court of Mississippi overruled McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788 (Miss. 1998), to the extent that the remedies provided in Miss. Code Ann. §95-5-10(1) are subject to the limitations period set out in Miss. Code Ann. §15-1-33. Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

Hospital was a subdivision of state for purposes of its suit against doctor for unpaid rent, and was thus not subject to one-year statute of limitations; county board of supervisors and city board of aldermen passed resolutions authorizing purchase and lease of office by hospital for express purpose of recruiting doctors to county and city, and office was purchased and leased pursuant to local and private legislation. Murphree v. Aberdeen-Monroe County Hosp., 671 So. 2d 1300, 1996 Miss. LEXIS 61 (Miss. 1996).

Mississippi Constitution Article 4 § 104 directs that statute of limitations in civil cases shall not run against state or any subdivision thereof; therefore, one year statute of limitations provided in §15-1-33 is inoperative when suit is brought on behalf of state against School Board and Superintendent for violation of conflict of interest statute. State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1987 Miss. LEXIS 2787 (Miss. 1987).

Code 1942, § 731 applies only to suits for a penalty or forfeiture based on a penal statute and is not applicable to a suit on a fidelity bond. Latham v. United States Fidelity & Guaranty Co., 267 So. 2d 895, 1972 Miss. LEXIS 1431 (Miss. 1972).

In a suit to cancel as cloud on title claim asserted by husband by virtue of inheritance from his deceased spouse, where it was finally adjudicated that the husband had pleaded guilty to manslaughter in the death of his wife, the suit was not one for penalty or forfeiture on a penal statute required to be brought within one year from the date of offense. Henry v. Toney, 217 Miss. 716, 64 So. 2d 904, 1953 Miss. LEXIS 484 (Miss. 1953).

Action under the Federal Fair Labor Standards Act to recover overtime compensation is not an action to recover a “penalty” within the meaning of this section [Code 1942, § 731], and therefore is not barred although not commenced within one year. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

Reasonable attorney’s fees allowed in action to recover overtime compensation under Federal Fair Labor Standards Act does not constitute “penalty” within meaning of this section [Code 1942, § 731], and therefore is not barred although the action was commenced after the one-year limitation period. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

Statute making insurance agent of company unauthorized to do business in State personally liable on policy held remedial, not penal, as regards insured, hence insured’s suit thereunder was not within one-year limitation on actions for penalty. Wilkinson v. Goza, 165 Miss. 38, 145 So. 91, 1932 Miss. LEXIS 300 (Miss. 1932).

State revenue agent’s suit for penalties for violating the anti-trust laws not barred by this section [Code 1942, § 731]. Nugent & Pullen v. Robertson, 126 Miss. 419, 88 So. 895, 1921 Miss. LEXIS 47 (Miss. 1921).

Personal liability of directors for illegal payment of dividends not barred by this section [Code 1942, § 731]. Metzger v. Joseph, 111 Miss. 385, 71 So. 645, 1916 Miss. LEXIS 309 (Miss. 1916).

Delayage charge fixed by railroad commission for detention of cars in transit, not penalty within this section [Code 1942, § 731]. Keystone Lumber Yard v. Yazoo & M. V. R. Co., 97 Miss. 433, 53 So. 8, 1910 Miss. LEXIS 287 (Miss. 1910).

Action for actual damages against clerk for failure to give defaulting taxpayer notice of expiration of exemption period not barred by this section [Code 1942, § 731]. McClendon v. Whitten, 95 Miss. 124, 48 So. 964, 1909 Miss. LEXIS 252 (Miss. 1909).

A suit for interest paid upon a usurious contract is not a suit to recover a penalty within the statute. Commercial Bank v. Auze, 74 Miss. 609, 21 So. 754, 1897 Miss. LEXIS 55 (Miss. 1897).

4. Pleading.

In civil suit to recover penalty, defense of limitation must be specifically plead. Yazoo & M. V. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 1912 Miss. LEXIS 28 (Miss.), modified, 102 Miss. 56, 58 So. 834 (Miss. 1912), limited, Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 1920 Miss. LEXIS 97 (Miss. 1920).

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. 2d, Forfeitures and Penalties §§ 42, 87 et seq.

CJS.

54 C.J.S., Limitations of Actions § 96.

Cross References —

Limitations applicable to malpractice actions generally, see §15-1-36.

Actionable words generally, see §§95-1-1 through95-1-5.

Limitations of prosecutions generally, see §§99-1-5 et seq.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Accrual.

4. Assault and battery.

5. Slander and libel.

6. Menace.

7. Pleading.

8. Failure to employ.

9. Invasion of privacy.

10. Intentional infliction of emotional distress.

11. Malicious prosecution.

12. Discovery rule.

13. Tolling.

1. In general.

Trial court abused its discretion in determining that an estate waived its statute-of-limitations defense because the estate did not participate actively “all the while” during the delay in the litigation process, and the delay was reasonable, given a will contest. Estate of Puckett v. Clement, 238 So.3d 1139, 2018 Miss. LEXIS 124 (Miss. 2018).

Because it was clear that for a violation of Miss. Code Ann. §97-3-107(4) to occur the offending conduct had to be intentional, and Miss. Code Ann. §15-1-35 applied to all intentional torts that were substantially like those enumerated, stalking was subject to the one-year statute of limitations of §15-1-35; because the employee did not file her complaint within one year of last alleged action by her supervisor, it was time-barred. Jones v. B.L. Dev. Corp., 940 So. 2d 961, 2006 Miss. App. LEXIS 792 (Miss. Ct. App. 2006).

Insured’s claims against the insurer and its investigator were intentional torts subject to the one year statute of limitations, Miss. Code Ann. §15-1-35; the investigator’s acts of following the insured night and day, following her to public and private locations, and appearing at her home and place of employment, were deliberate acts and since the insured was unaware of any stalking by the investigator after his arrest on March 11, 2000, the one year statute of limitations accordingly ran from March 11, 2000, and the insured filed her claims more than one year after that date. Lynch v. Liberty Mut. Ins. Co., 909 So. 2d 1289, 2005 Miss. App. LEXIS 137 (Miss. Ct. App. 2005).

Trial court erred in denying a summary judgment motion filed by a casino and its employee against the malicious prosecution claim filed by certain individuals. The individuals’ first claim against the casino was dismissed for want of prosecution, and the savings clause in Miss. Code Ann. §15-1-69 did not prevent the second claim, which was based on the same facts, from being barred by the statute of limitation in Miss. Code Ann. §15-1-35. Jackpot Miss. Riverboat, Inc. v. Smith, 874 So. 2d 959, 2004 Miss. LEXIS 641 (Miss. 2004), overruled in part, Knight v. Knight, 85 So.3d 832, 2012 Miss. LEXIS 24 (Miss. 2012).

The listing of intentional torts in §15-1-35 was intended to be inclusive. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

There can be no escape from bar of statute of limitations applicable to intentional torts by mere refusal to style the cause brought in the recognized statutory category and thereby circumvent the prohibition of the statute. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

Once Wilson v. Garcia (1985) 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938, was decided, public was fairly on notice that in Mississippi one-year limitations period might well be chosen over 6-year limitations period as more appropriate period for actions under 42 USCS § 1983. Hanner v. Mississippi, 833 F.2d 55, 1987 U.S. App. LEXIS 15691 (5th Cir. Miss. 1987).

This section [Code 1942, § 732] provides an inclusive listing of intentional torts recognized in Mississippi. Dennis v. Travelers Ins. Co., 234 So. 2d 624, 1970 Miss. LEXIS 1414 (Miss. 1970).

2. Applicability.

Dismissal of a wrongful death suit against a psychiatrist was appropriate, when the suit alleged that the psychiatrist’s intentional and negligent acts created an irresistible impulse in the decedent, a patient, to commit suicide because the intentional tort claims were barred as both the complaint and amended complaint were filed outside the one-year limitations period, following the decedent’s suicide. Irby v. Madakasira, — So.3d —, 2017 Miss. App. LEXIS 173 (Miss. Ct. App. Mar. 28, 2017).

Circuit court erred in dismissing a husband’s wrongful appropriation of insurance funds, unjust enrichment, and civil conspiracy claims against his former wife where those claims were not intentional torts and were not subject to the one-year limitations period set forth in Miss. Code Ann. §15-1-35. Breeden v. Buchanan, 164 So.3d 1057, 2015 Miss. App. LEXIS 45 (Miss. Ct. App.), cert. denied, 160 So.3d 704, 2015 Miss. LEXIS 210 (Miss. 2015).

After an employee was terminated, and his employers refused to reimburse his expenses, his claims for negligent infliction of emotional distress and tortious interference with business relations were clearly not time-barred; however, the facts had to be more closely examined to determine whether the claims for defamation and intentional infliction of emotional distress were time-barred. Smith v. Antler Insanity, LLC, 58 F. Supp. 3d 716, 2014 U.S. Dist. LEXIS 152484 (S.D. Miss. 2014).

Though appellant contended that she had negligence claims against a casino that were not time-barred, all of her instances of alleged negligence were part of her false arrest claim; thus, the one-year statute of limitations for intentional torts, Miss. Code Ann. §15-1-35 (2003), applied to bar her suit. Brown v. Harrah's Entm't, Inc., 14 So.3d 827, 2009 Miss. App. LEXIS 527 (Miss. Ct. App. 2009).

In a products liability case in which a driver asserted a claim for intentional tort/conduct and she filed her complaint almost two years after her head-on collision, her intentional tort/conduct claim was barred by the one-year limitations period in Miss. Code. Ann. 15-1-35. Williams v. Daimler Chrysler Corp., 2008 U.S. Dist. LEXIS 55123 (N.D. Miss. July 18, 2008), aff'd, 310 Fed. Appx. 747, 2009 U.S. App. LEXIS 5870 (5th Cir. Miss. 2009).

Customer’s claim for defamation was untimely where, as was obvious from the professed date of accrual of the customer’s alleged defamation, and the date he alleged the cause of action within his amended complaint, the time limitation specified in Miss. Code Ann. §15-1-35 had expired. Hudson v. Palmer, 977 So. 2d 369, 2007 Miss. App. LEXIS 580 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 95 (Miss. 2008).

Wrongful death claim against the corporations was time-barred and summary judgment was properly granted in favor of the corporations on the wife’s wrongful death claim where the statute of limitations expired before litigation commenced. May v. Pulmosan Safety Equip. Corp., 948 So. 2d 483, 2007 Miss. App. LEXIS 53 (Miss. Ct. App. 2007).

Dismissal by the district court of the football player who allegedly caused injury to plaintiff’s son’s eye during football practice was proper where the appellate court determined that plaintiff’s claim stated an intentional tort, and the applicable statute of limitations had run because the amended complaint was filed on February 2, 2001, well over a year from the September 14, 1999 incident. Priester v. Lowndes County, 354 F.3d 414, 2004 U.S. App. LEXIS 125 (5th Cir. Miss.), cert. denied, 543 U.S. 829, 125 S. Ct. 153, 160 L. Ed. 2d 44, 2004 U.S. LEXIS 5788 (U.S. 2004).

One-year statute of limitation of Miss. Code Ann. §15-1-35 applied to all actions substantially similar to the eight intentional torts enumerated in that statute, but four of psychologist’s eight claims were improperly dismissed on statute of limitation grounds as the wife and second husband were diligently substituted for fictitious parties four days after the psychologist ascertained their identities upon learning of their alleged involvement in a letter-writing campaign against them upon deposing another party, and the claims against them related back to the timely filing of the original complaint. Gasparrini v. Bredemeier, 802 So. 2d 1062, 2001 Miss. App. LEXIS 548 (Miss. Ct. App. 2001).

Section15-1-35 does not cover all intentional tortious conduct, but applies only to the torts enumerated in the statute; thus, §15-1-35 did not apply to a claim for malicious interference with business relations. Nichols v. Tri-State Brick & Tile Co., 608 So. 2d 324, 1992 Miss. LEXIS 675 (Miss. 1992).

Discriminatory discharge action under federal civil rights law (42 USCS § 1981) is not barred by one year statute of limitations for enumerated intentional torts, but is governed by residual statute of limitations which provides 6-year limitation period. Kozam v. Emerson Electric Co., 711 F. Supp. 313, 1989 U.S. Dist. LEXIS 4249 (N.D. Miss. 1989).

One year statute of limitations in §15-1-35 applies to all 42 USCS § 1981 claims brought in Mississippi. Dillard v. Vicksburg Medical Center, Inc., 695 F. Supp. 880, 1988 U.S. Dist. LEXIS 11261 (S.D. Miss. 1988).

One year statute of limitations is applicable to claims under 42 USCS § 1981 arising after Supreme Court’s decision in Wilson v. Garcia (1985) 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 while longer statute of limitations applies for claims arising before such decision. Dillard v. Vicksburg Medical Center, Inc., 695 F. Supp. 880, 1988 U.S. Dist. LEXIS 11261 (S.D. Miss. 1988).

One year statute of limitations is applicable to claims under 42 USCS § 1981 arising after Supreme Court’s decision in Wilson v. Garcia (1985) 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 while longer statute of limitations applies for claims arising before such decision. Dillard v. Vicksburg Medical Center, Inc., 695 F. Supp. 880, 1988 U.S. Dist. LEXIS 11261 (S.D. Miss. 1988).

One-year statute of limitations would be applied to all § 1981 claims; reasoning applied to § 1983 actions would likely be applied to § 1981 actions, and therefore actions accruing before decision in Wilson v. Garcia (1985) 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938, would have a limitations period of (1) longer pre-Wilson period, commencing at time of action accruing, or (2) post-Wilson one-year period, commencing with date of Wilson decision, whichever expires first. Byrd v. Travenol Lab., 675 F. Supp. 342, 1987 U.S. Dist. LEXIS 11475 (N.D. Miss. 1987).

Decision determining that §15-1-35 applies to all 42 USCS § 1983 actions brought in Mississippi should not apply retroactively. Young v. Biggers, 820 F.2d 727, 1987 U.S. App. LEXIS 9351 (5th Cir. Miss. 1987).

Section 15-1-35 is not applicable to invasion of privacy claim; such claim is not listed specifically in statute and cannot be defined to fall squarely within any category included therein. Blackwell v. Hustler Magazine, Inc., 633 F. Supp. 870, 1986 U.S. Dist. LEXIS 29783 (S.D. Miss. 1986).

All § 1983 actions brought in Mississippi are governed by Mississippi Code §15-1-35, Mississippi’s one-year statute of limitations for intentional torts. Storey v. United States, 629 F. Supp. 1174, 1986 U.S. Dist. LEXIS 28281 (N.D. Miss. 1986).

Defendant’s motion to dismiss was denied and one-year statute of limitations set forth in §15-1-35 was inapplicable in civil rights action by pro se prisoner who submitted complaint and application to proceed in forma pauperis in timely manner but where prisoner had no control over when Magistrate would allow complaint to be filed, thus for purposes of statute of limitation operable date was upon receipt by Court Clerk. Smith v. Ouzts, 629 F. Supp. 1001, 1986 U.S. Dist. LEXIS 28903 (S.D. Miss. 1986).

One-year statute of limitations prescribed by §15-1-35 for intentional torts does not apply to federal civil rights action arising from police officer’s alleged conduct in smashing plaintiff’s glasses, beating him, and cursing at him. Simons v. Columbus, 593 F. Supp. 876, 1984 U.S. Dist. LEXIS 24020 (N.D. Miss. 1984), aff'd, 805 F.2d 1031, 1986 U.S. App. LEXIS 33457 (5th Cir. Miss. 1986).

Wrongful or fraudulent foreclosure of property action is case action governed by 6 year statute of limitations (§15-1-49), not by one year statute of limitations applicable to specified intentional torts (§15-1-35). Southern Land & Resources Co. v. Dobbs, 467 So. 2d 652, 1985 Miss. LEXIS 2019 (Miss. 1985).

In action against bail bondsmen and their surety alleging false imprisonment and malicious prosecution based upon allegedly improper arrest of plaintiff for jumping bail, applicable statute of limitations is 6-year period set forth in §15-1-49 rather than one-year period set forth in §15-1-35, since, although action is grounded in tort, it springs from underlying bond agreement between bail bondsmen and plaintiff. Mathis v. Indemnity Ins. Co., 588 F. Supp. 489, 1983 U.S. Dist. LEXIS 18293 (S.D. Miss. 1983).

The Mississippi six-year catch-all statute (Code §15-1-49) controlled an action pursuant to 42 USCS § 1983 against a city, its police department and various policemen asserting deprivation of constitutional right to freedom from physical abuse and intimidation which action allegedly occurred when in the course of arresting and jailing the plaintiff two policemen hurled him head first into the concrete floor and wall of a cell. Morrell v. Picayune, 690 F.2d 469, 1982 U.S. App. LEXIS 24429 (5th Cir. Miss. 1982).

Assuming arguendo that an insurance adjuster illegally intruded upon the privacy of plaintiffs after their son had been critically injured in an automobile accident, such intrusion would constitute an intentional tort and, as such, would be barred by the one year statute of limitations. Andrews v. GAB Business Services, Inc., 443 F. Supp. 510, 1977 U.S. Dist. LEXIS 15346 (N.D. Miss. 1977).

Action under federal civil rights statute against sheriff and constable to recover damages for unfounded arrest of plaintiff, beating suffered at time of arrest, and failure to summon physician to treat wounds suffered by plaintiff, was subject to the 6 year statute of limitations. Shaw v. McCorkle, 537 F.2d 1289, 1976 U.S. App. LEXIS 7343 (5th Cir. Miss. 1976).

Civil rights action brought by motorist against highway patrolman and surety on their official performance bond arising out of an incident of alleged physical abuse is an action on contract governed by the state’s six year limitation statute rather than an action for intentional tort governed by a one year statute. Shaw v. McCorkle, 537 F.2d 1289, 1976 U.S. App. LEXIS 7343 (5th Cir. Miss. 1976).

A cause of action against four highway patrolmen and their surety, alleging that the plaintiff had been beaten and abused by the highway patrolmen, was essentially an action against a public officer and the surety on his bond, was accordingly an action in contract, and was governed by the six year statutory limitation for written contracts, §15-1-49, and not the one year statutory limitation period for tort actions, §15-1-35. Shaw v. McCorkle, 537 F.2d 1289, 1976 U.S. App. LEXIS 7343 (5th Cir. Miss. 1976).

This section [Code 1942, § 732] is not applicable to an action for trespass on land. Bush v. Laurel, 234 Miss. 93, 105 So. 2d 562, 1958 Miss. LEXIS 468 (Miss. 1958).

The section [Code 1942, § 732] does not apply to actions against a railroad company for personal injuries. Bell v. Kansas C., M. & B. R. Co., 68 Miss. 19, 8 So. 508, 1890 Miss. LEXIS 39 (Miss. 1890).

3. Accrual.

Purported partners alleged to have suffered damages as a result of another purported partner’s refusal to turn over proceeds from the sale of a property, as well as the remaining funds borrowed for improvements to the property. Thus, the purported partners’ intentional tort claims and partnership and breach of fiduciary duty claims were timely asserted within the applicable statutes of limitation. Latham v. Johnson, 262 So.3d 569, 2018 Miss. App. LEXIS 314 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 798, 2019 Miss. LEXIS 48 (Miss. 2019).

Excess insurer’s fraud and other tort claims against parties involved in settling medical malpractice claims against two doctors were barred under the limitations periods in Miss. Code Ann. §§15-1-35,15-1-49, which were not tolled under Miss. Code Ann. §15-1-67 because a letter from counsel for one of the doctors, which letter was written one year before the insurer filed suit, invited the excess insurer to discuss the withdrawal of the doctor’s consent to settle, which the excess insurer alleged led to its payment obligations on behalf of another doctor whose primary coverage was exhausted, and counsel’s letter did not attempt to conceal anything from the excess insurer. Nat'l Union Fire Ins. Co. v. Blasio, 2008 U.S. Dist. LEXIS 42669 (N.D. Miss. May 23, 2008).

Where investors alleged that investment companies were aware of their agent’s conversion of the investors’ funds before the criminal activity was publicly disclosed, neither fraudulent concealment nor equitable estoppel applied to toll the limitations periods; after the agent’s misconduct was discovered, the investors delayed filing their complaints against the companies until well after the limitations periods expired and there was no conduct of the companies that caused the investors’ undue delay. Joe v. Minn. Life Ins. Co., 337 F. Supp. 2d 821, 2004 U.S. Dist. LEXIS 19281 (S.D. Miss. 2004).

While the minor’s savings statute, Miss. Code Ann. §15-1-59 (Rev. 2003), applied to wrongful death suits, once suit was filed in the child’s behalf, the one-year statute of limitations, Miss. Code Ann. §15-1-35 (1995), began running; since plaintiff guardian, instead of filing an amended complaint in federal court, filed a new suit, alleging intentional torts for the first time, those claims were time-barred under §15-1-35. Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

Where the employee was exonerated of embezzlement on June 21, 2000, and filed her complaint on June 20, 2001, the employee’s malicious prosecution claim was filed one day before it would have expired, and therefore, the trial court was in error in granting the employer’s motion for summary judgment. Coleman v. Smith, 841 So. 2d 192, 2003 Miss. App. LEXIS 257 (Miss. Ct. App. 2003).

In an action for malicious prosecution arising out of an earlier theft prosecution, the right of action accrues when the trial court recalls the case from the files and enters a nolle prosequi. Bankston v. Pass Rd. Tire Center, Inc., 611 So. 2d 998, 1992 Miss. LEXIS 833 (Miss. 1992).

Action for wrongful death brought by statutory heirs of decedent, alleging that decedent came into contact with toxic substances during his employment with defendant, resulting in his death, was time-barred where approximately 8 1/2 years elapsed between decedent’s death and filing of present action; negligence actions being governed by §15-1-49 (6 years), actions based on intentional infliction of emotional distress being controlled by §15-1-35 (one year), and breach of warranty actions governed by §75-2-725 (6 years), whether defendants’ acts were characterized as intentional or negligent, longest possible limitations period under Mississippi law would be 6 years. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

For actions in Mississippi brought under 42 USCS § 1983 accruing before Wilson v. Garcia (1985) 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938, appropriate limitations period shall be either (1) longer pre-Wilson period, commencing at time action accrued, or (2) post-Wilson one-year period, commencing with date of Wilson decision, whichever expires first. Hanner v. Mississippi, 833 F.2d 55, 1987 U.S. App. LEXIS 15691 (5th Cir. Miss. 1987).

Section 1981 action accrued on Supreme Court’s denial of certiorari in 1978 and was timely filed where filing took place in 1983. Byrd v. Travenol Lab., 675 F. Supp. 342, 1987 U.S. Dist. LEXIS 11475 (N.D. Miss. 1987).

In action for malicious prosecution arising out of an earlier cattle theft prosecution, the right of action did not accrue when the trial court entered an order retiring the case to the files in November 1971, but accrued when the trial court recalled the case from the files and entered a nolle prosequi in April 1972, and action brought in February 1973 was not barred by Code 1942, § 732. Childers v. Beaver Dam Plantation, Inc., 360 F. Supp. 331, 1973 U.S. Dist. LEXIS 13418 (N.D. Miss. 1973).

Although plaintiff charged defendants with negligence and asserted such negligence as a basis for his demand, his action was in essence, one to recover on the intentional torts of abuse of criminal process, libel and slander, and since such rights accrued more than 1 year prior to the commencement of the action, they were barred by Code 1942, § 32. Childers v. Beaver Dam Plantation, Inc., 360 F. Supp. 331, 1973 U.S. Dist. LEXIS 13418 (N.D. Miss. 1973).

It is well settled law in Mississippi that a cause of action begins to run from the time of injury and not from the time of its discovery unless the running of the statute of limitations is tolled by the operation of Code 1942, § 742 (fraudulent concealment of a cause of action). Wilson v. Retail Credit Co., 325 F. Supp. 460, 1971 U.S. Dist. LEXIS 14248 (S.D. Miss. 1971), aff'd, 457 F.2d 1406, 1972 U.S. App. LEXIS 10066 (5th Cir. Miss. 1972).

4. Assault and battery.

Trial court properly granted summary judgment in favor of defendant based on the one-year statute of limitations for assault and battery claims under because plaintiff waited more than two years before he sued defendant, as plaintiff charged that defendant intentionally struck him in the face and defendant said the same during his deposition and pleaded guilty to simple assault. Evans v. Shucker's Piano & Oyster Bar, Inc., — So.3d —, 2019 Miss. App. LEXIS 144 (Miss. Ct. App. Apr. 9, 2019).

Trial court erred in denying an estate’s motion to dismiss because a purchaser’s suit was barred by the statute of limitations; the purchaser failed to perfect service before the expiration of the statute of limitations; there was nothing in the record to support a finding of good cause because during the period to serve process before the statute of limitations expired, the purchaser knew the decedent was inside his house but did not exercise all of her options to serve him. Estate of Puckett v. Clement, 238 So.3d 1139, 2018 Miss. LEXIS 124 (Miss. 2018).

Conduct alleged, though framed in negligence, was notably like assault and battery and was to be treated as such, and the fact that appellee did not allege an intentional tort was of no moment, and the one-year statute of limitations as to intentional torts applied; even if appellant breached his duty to operate the truck safely, in acting with intent to cause appellee either apprehension or harm, appellant committed civil assault, and subsequently battery, which could not be considered negligence, and the action was time-barred. Sanderson Farms, Inc. v. McCullough, 212 So.3d 69, 2017 Miss. LEXIS 39 (Miss. 2017).

Patient’s assault and battery suit, alleging that she received a blood transfusion in the hospital despite her express rejection of such procedure, was time-barred as it was not filed within one year from the date of the alleged injury, as required by Miss. Code Ann. §15-1-35 (Rev. 2012), in that her injury occurred on the date of her surgery, November 17, 2006, and her complaint was not filed until February 4, 2011. Even assuming that the discovery rule applied, she received the medical records indicating the blood transfusion in May 2007. Henley v. Martin, 105 So.3d 417, 2012 Miss. App. LEXIS 823 (Miss. Ct. App. 2012).

Plaintiff retired Mississippi Air National Guard (MSANG) colonel’s 42 U.S.C.S. § 1985 allegations of threats, violence, and intimidation against defendant MSANG officials could not be combined with a single assault and battery to constitute a “continuing tort, thus, assault and battery claims were barred by Miss. Code Ann. §15-1-35’s one-year limitations period. Bryant v. Military Dep't, 597 F.3d 678, 2010 U.S. App. LEXIS 3221 (5th Cir. Miss.), cert. denied, 562 U.S. 893, 131 S. Ct. 287, 178 L. Ed. 2d 141, 2010 U.S. LEXIS 6263 (U.S. 2010).

Allegations of threats, violence, and intimidation comprising plaintiff’s claims against the Mississippi Air National Guard under 42 U.S.C.S. § 1985 could not be combined with a single incident of assault and battery to constitute a “continuing tort”; thus, plaintiff’s assault and battery claim was time barred under Miss. Code Ann. §15-1-35 because the claim was made more than one year after the incident occurred. Bryant v. Military Dep't, 597 F.3d 678, 2010 U.S. App. LEXIS 3221 (5th Cir. Miss.), cert. denied, 562 U.S. 893, 131 S. Ct. 287, 178 L. Ed. 2d 141, 2010 U.S. LEXIS 6263 (U.S. 2010).

Plaintiff former Mississippi Air National Guard service member’s assault claim against defendant Guard officials was time barred under Miss. Code Ann. §15-1-35 because the assault allegedly occurred in 2003 and suit was filed in 2005, and while the service member argued that the assault and battery was part of a pattern of threats, harassment, and intimidation which was of a continuing nature, the assault and battery was not itself a continuing tort. Bryant v. Miss. Military Dep’t, 519 F. Supp. 2d 622, 2007 U.S. Dist. LEXIS 52005 (S.D. Miss. 2007), affirmed by 597 F.3d 678, 2010 U.S. App. LEXIS 3221, 30 I.E.R. Cas. (BNA) 654 (5th Cir. Miss. 2010)supra, aff’d, 2010 U.S. App. LEXIS 3221 (5th Cir. Miss. 2010).

Employee’s claim of assault against her supervisor was barred by Miss. Code Ann. §15-1-35 because the alleged torts occurred no later than September 7, 2001, and therefore any action should have been filed by September 7, 2002; however, the employee did not file the claim until March 26, 2003. Jones v. B.L. Dev. Corp., 940 So. 2d 961, 2006 Miss. App. LEXIS 792 (Miss. Ct. App. 2006).

Plaintiff, who brought claims for assault and battery and for intentional infliction of emotional distress that should have been filed on or before July 30, 2000 did not comply with the limitation period enunciated in Miss. Code §15-1-35, where plaintiff’s complaint was filed with the court on August 13, 2002; therefore, unless the statute of limitations was tolled in some manner, plaintiff’s claims were time barred. Hampton v. Gannett Co., 296 F. Supp. 2d 716, 2003 U.S. Dist. LEXIS 22788 (S.D. Miss. 2003).

The limitation period on actions for assault and battery and intentional infliction of emotional distress is one year and trial court did not err in dismissing action raising claims under those theories where plaintiff’s complaint was not received in the mail by the trial court clerk until more than one year following the incident giving rise to the alleged causes of action. Slaydon v. Hansford, 830 So. 2d 686, 2002 Miss. App. LEXIS 477 (Miss. Ct. App. 2002), overruled, Blake v. Estate of Clein, 37 So.3d 622, 2010 Miss. LEXIS 322 (Miss. 2010).

An action arising from an appendectomy was one for assault and battery and, therefore, was barred by the one year statute of limitations contained in the statute where the plaintiff alleged that she did not know she was going to undergo surgery prior to its occurrence and that any documents signed by her which consented to the surgery were against her will because she was under the influence of heavy sedation and “excruciating sickness.” Goleman v. Orgler, 771 So. 2d 374, 2000 Miss. App. LEXIS 253 (Miss. Ct. App. 2000).

A cause of action for assault and battery was barred by the statute of limitations where the action was not brought within one year of the accrual of the cause of action. Disney v. Horton, 2000 U.S. Dist. LEXIS 5359 (N.D. Miss. Apr. 13, 2000).

An action for false arrest or malicious prosecution is subject to the one-year period of limitations set forth in §15-1-35 even though these torts are not specifically enumerated in the statute. City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1990 Miss. LEXIS 248 (Miss. 1990).

Combined actions of two former employees of defendant publishing company were time barred by 1-year statute of limitations in §15-1-35 where one employee sought to hold former employer vicariously liable for alleged assault and battery by fellow employee and second employee sought to recover for alleged slanderous statements made to new employer by president of former employer. EEOC v. Southern Pub. Co., 732 F. Supp. 682, 1988 U.S. Dist. LEXIS 17306 (S.D. Miss. 1988).

Cause of action based upon wrongful death statute (§11-7-13), being predicated upon defendant’s intentional torts, is governed by one year statute of limitations, rather than 6 year statute of limitations, as actions filed pursuant to wrongful death statute must be brought within corresponding prescription statute for which cause of action is predicated. Veselits v. Veselits, 653 F. Supp. 1570, 1987 U.S. Dist. LEXIS 1348 (S.D. Miss.), aff'd, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

One year statute of limitations applied to prisoners § 1983 claim alleging he had been assaulted. Smith v. Ouzts, 629 F. Supp. 1001, 1986 U.S. Dist. LEXIS 28903 (S.D. Miss. 1986).

A medical malpractice action based on the theory of lack of informed consent, was in tort and subject to the general six-year statute of limitations as set out in Code 1942, § 722, rather than the one-year statute of limitations on assault and battery claims as set out in Code 1942, § 732. Ross v. Hodges, 234 So. 2d 905, 1970 Miss. LEXIS 1425 (Miss. 1970).

This section [Code 1942, § 732], governing the commencement of actions for assault and battery, applies to corporations. Sears, Roebuck & Co. v. Ingram, 206 So. 2d 204, 1968 Miss. LEXIS 1559 (Miss. 1968).

An action for damages against a foreign corporation arising from personal injuries allegedly sustained by the plaintiff as a consequence of assault and battery committed by an employee of the corporation was barred by the one-year statute of limitations, where the corporation was at all times amenable to the personal service of process of the courts of the state. Sears, Roebuck & Co. v. Ingram, 206 So. 2d 204, 1968 Miss. LEXIS 1559 (Miss. 1968).

Suit for personal injuries growing out of assault by state highway patrolman during the course of his duty as such patrolman, in which surety on patrolman’s official bond was joined as defendant, was a suit upon the bond and not an action for assault and battery subject to the one-year limitation statute. Alexander v. Carsley, 199 Miss. 881, 25 So. 2d 709, 1946 Miss. LEXIS 257 (Miss. 1946).

Limitation of one year held inapplicable in action against sheriff and surety for damages by reason of having been shot and wounded by deputy. State use of Smith v. Smith, 156 Miss. 288, 125 So. 825, 1930 Miss. LEXIS 161 (Miss. 1930).

The one-year statute of limitations set forth in §15-1-35 applied to an action for assault and battery against a police officer and the municipality whom he served, arising out of alleged police brutality during an arrest. The public policy considerations implicit in §15-1-35 apply where the offender is a police officer and the corporation sought to be held liable is a municipal corporation, as well as in the case of private parties. To the extent they hold to the contrary, State Ex Rel Smith v. Smith (Miss. 1930) 125 So. 2d 825 and Alexander v. Carsley (Miss. 1946) 25 So. 2d 709 stand modified. City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1990 Miss. LEXIS 248 (Miss. 1990).

If unsoundness of mind of one suing for damages for assault and battery began before expiration of day of injury, limitation did not begin until removal of disability. Pannell v. Glidewell, 146 Miss. 565, 111 So. 571, 1927 Miss. LEXIS 197 (Miss. 1927).

5. Slander and libel.

Tolling provision of the Mississippi Tort Claims Act (MTCA) statute of limitations does not toll the separate statute of limitations applicable to non-MTCA defamation claims. Therefore, a notice of claim did not toll a statute of limitations for a defamation claim against an alderman because the statute of limitations for a non MTCA case applied. Williams v. City of Belzoni, 229 So.3d 171, 2017 Miss. App. LEXIS 126 (Miss. Ct. App. 2017).

In a case arising from a failure to renew an employment contract, an individual defamation claim against an alderman was barred by the one-year statute of limitations, and an allegation of continued slander “throughout the year” was insufficient to state an actionable claim within the limitations period. Moreover, the city was immune from liability on the defamation claim. Williams v. City of Belzoni, 229 So.3d 171, 2017 Miss. App. LEXIS 126 (Miss. Ct. App. 2017).

Under Miss. Code Ann.15-1-35, the former employee had until March 2, 2007, one year from the date of his termination on March 2, 2006, to file his defamation claim against his former employer, a manager, and a store services company. Because he did not file his claim until March 5, 2007, it was barred by the one-year limitations period in §15-1-35. Davis v. Belk Stores Servs., 2009 U.S. Dist. LEXIS 487 (S.D. Miss. Jan. 6, 2009).

Former state university student’s defamation claims against the university, a state board of trustees, and several professors was time barred under the one-year limitations period in Miss. Code Ann. §15-1-35 where the student did not file his suit until almost 13 months after the alleged defamatory acts occurred. Washington v. Jackson State Univ., 532 F. Supp. 2d 804, 2006 U.S. Dist. LEXIS 97302 (S.D. Miss. 2006).

One-year statute of limitations under Miss. Code Ann. §15-1-35 on the founder’s defamation, invasion of privacy, and intentional infliction of emotional distress claims began to run at the latest on February 15, 2000 for the first article, and on April 20, 2001 for the second article, and thus, the statute of limitations expired on February 15, 2001, for the founder’s claims related to the first article, and expired on April 20, 2002, for the founder’s claims related to the second article; therefore, because the founder did not file his lawsuit until September 3, 2002, dismissal of his claims against the publisher was appropriate; no genuine issue of material fact existed, and the publisher was entitled to judgment as a matter of law. Lane v. Strang Communs. Co., 297 F. Supp. 2d 897, 2003 U.S. Dist. LEXIS 24820 (N.D. Miss. 2003).

Libel claims against a coroner filed more than one year after the last publication of allegedly defamatory statements about the cause of death of a convalescent center patient were dismissed pursuant to Fed. R. Civ. P. 12(b)(6) as time-barred because, although the discovery rule applied to toll the statute for several months until the completion of an investigation of the cause of the patient’s death, the filing of a state court action only tolled the one-year statute of limitations under Miss. Code Ann. §15-1-35 during the 120 days in which the plaintiffs could serve the coroner. River Oaks Convalescent Ctr., Inc. v. Coahoma County, 280 F. Supp. 2d 565, 2003 U.S. Dist. LEXIS 23855 (N.D. Miss. 2003).

Libel claims against a coroner filed more than one year after the last publication of allegedly defamatory statements about the cause of death of convalescent center patients were dismissed pursuant to Fed. R. Civ. P. 12(b)(6) as time-barred because the continuing injury doctrine, based on lawsuits filed by patients’ family members against the center and its owner arising out of the coroner’s statements, did not apply to toll the one-year statute of limitations under Miss. Code Ann. §15-1-35 because the suits constituted a “continual ill effect” rather than a “continual unlawful act.” River Oaks Convalescent Ctr., Inc. v. Coahoma County, 280 F. Supp. 2d 565, 2003 U.S. Dist. LEXIS 23855 (N.D. Miss. 2003).

The discovery rule applies to defamation actions in that limited class of libel cases in which, because of the secretive or inherently undiscoverable nature of the publication the plaintiff did not know, or with reasonable diligence could not have discovered, that he or she had been defamed. Staheli v. Smith, 548 So. 2d 1299, 1989 Miss. LEXIS 410 (Miss. 1989), limited, Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Combined actions of two former employees of defendant publishing company were time barred by 1-year statute of limitations in §15-1-35 where one employee sought to hold former employer vicariously liable for alleged assault and battery by fellow employee and second employee sought to recover for alleged slanderous statements made to new employer by president of former employer. EEOC v. Southern Pub. Co., 732 F. Supp. 682, 1988 U.S. Dist. LEXIS 17306 (S.D. Miss. 1988).

Action by plaintiff against former employer for slander was time-barred where publication took place more than one year prior to institution of action, despite fact that plaintiff did not discover defamatory statements until more than one year after they were made. EEOC v. Southern Pub. Co., 732 F. Supp. 682, 1988 U.S. Dist. LEXIS 17306 (S.D. Miss. 1988).

In an action for libel, the statute of limitations runs from the date the allegedly defamatory material is published which, for a mass distributed publication, occurs when the periodical is substantially distributed to the public. Wildmon v. Hustler Magazine, Inc., 508 F. Supp. 87, 1980 U.S. Dist. LEXIS 16078 (N.D. Miss. 1980).

It was error for the trial court to dismiss a slander suit as barred by the one-year statute of limitations where the slander cause of action had accrued on December 9, 1976, at which time false charges against plaintiff were repeated in open court by defendant, and where, on December 9, 1977, plaintiff filed his declaration against defendant; however, another count of the declaration alleging a cause of action for libel was barred by the statute of limitations where such cause of action had accrued on August 20, 1976. Ladner v. Arrington, 374 So. 2d 831, 1979 Miss. LEXIS 2394 (Miss. 1979).

Although plaintiff charged defendants with negligence and asserted such negligence as a basis for his demand, his action was in essence, one to recover on the intentional torts of abuse of criminal process, libel and slander, and since such rights accrued more than 1 year prior to the commencement of the action, they were barred by Code 1942, § 732. Childers v. Beaver Dam Plantation, Inc., 360 F. Supp. 331, 1973 U.S. Dist. LEXIS 13418 (N.D. Miss. 1973).

In an action for damages for slander of title, the right to sue therefor accrued at the time of the execution and filing for record of the deeds and not at the time when defendant falsely and maliciously made assertions constituting a disparagement of the title. Walley v. Hunt, 212 Miss. 294, 54 So. 2d 393, 1951 Miss. LEXIS 452 (Miss. 1951).

In an action for libel against a newspaper, the statute of limitations begins to run from the date of the first publication. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

The cause of action accrues where the paper is first published. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

Where original petition alleged that defamatory words spoken by railroad’s special agent were, “Don’t you think Wales (meaning plaintiff) was into that brass stealing?” amendment, filed more than one year after alleged cause of action accrued, alleging in addition to original petition that special agent stated “I think they ought to have fired him before,” and that statements were made in the presence of another person, held to introduce a new cause of action which was barred by one-year statute of limitations. Illinois C. R. Co. v. Wales, 177 Miss. 875, 171 So. 536, 1937 Miss. LEXIS 134 (Miss. 1936).

If a suit for libel contained in a letter sent by mail be brought after one year from publication, the statute cannot be voided by showing a concealment of the cause of action predicated of any act of the writer at the place where the letter was mailed. McCarlie v. Atkinson, 77 Miss. 594, 27 So. 641, 1900 Miss. LEXIS 27 (Miss. 1900).

6. Menace.

Tort of intentional infliction of emotional distress is of same type of tort as menace and therefore covered by one-year statute of limitations and not by residual 6 year statute of limitations. Guthrie v. J.C. Penney Co., 803 F.2d 202, 1986 U.S. App. LEXIS 32673 (5th Cir. Miss. 1986).

An action seeking to recover for the use of threats of criminal prosecution, in a letter, to enforce the payment of a purported civil debt, which the plaintiff charged was in violation of Code 1942, § 2365, was barred by the statute of limitations applicable to an action for menace, the complaint having been filed more than a year after the letter was received. Dennis v. Travelers Ins. Co., 234 So. 2d 624, 1970 Miss. LEXIS 1414 (Miss. 1970).

A letter from an insurer to the parents of a minor boy alleged to have participated in the damaging of buses, which letter sought payment of a proportionate share of the damage and stated that in the event of nonpayment the matter would be referred to juvenile officials for court action, fell squarely within the purview of this section [Code 1942, § 732] under the category of “menace.” Dennis v. Travelers Ins. Co., 234 So. 2d 624, 1970 Miss. LEXIS 1414 (Miss. 1970).

7. Pleading.

Failure to affirmatively plead the one-year statute dealing with civil suits based upon an assault results in a waiver of that defense. Sears, Roebuck & Co. v. Devers, 405 So. 2d 898, 1981 Miss. LEXIS 2286 (Miss. 1981).

When main facts are set out in the original pleading, and an amendment is made which merely elaborates upon those facts and sets forth additional incidental facts not changing the original picture presented, although those incidental facts may be necessary to the statement of a good cause of action, amendment introduces no new cause in such sense as to let in plea of statute of limitations. Illinois C. R. Co. v. Wales, 177 Miss. 875, 171 So. 536, 1937 Miss. LEXIS 134 (Miss. 1936).

8. Failure to employ.

This section did not apply where the record showed that the plaintiff was hired by the defendant, although she never actually worked because she was instructed not to report to work on her start date. Levens v. Campbell, 733 So. 2d 753, 1999 Miss. LEXIS 32 (Miss. 1999).

Where plaintiff, recipient of certain scholarship funds as financial assistance for medical school costs and tuition, was required to fulfill 4 year service obligation at approved health care facility, and signed private practice assignment agreement with health care facility, with such agreement stating that it would be “negotiable at the end of one year”, and accepted employment there, but was terminated 10 months later with the termination being memorialized as a non-renewal of employment agreement, §15-1-35 was not applicable to portion of complaint alleging termination of his employment, rather appropriate provision was “catch all” statute of limitations §15-1-49. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

9. Invasion of privacy.

Claim of invasion of privacy had to be brought within one year of its accrual; where, at the very best, the customer alleged invasion of privacy occurred more than one year after the cause of action accrued, the customer’s claim was barred. Hudson v. Palmer, 977 So. 2d 369, 2007 Miss. App. LEXIS 580 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 95 (Miss. 2008).

The statute applies to actions for invasion of privacy. McCorkle v. McCorkle, 811 So. 2d 258, 2001 Miss. App. LEXIS 9 (Miss. Ct. App. 2001).

A cause of action for invasion of privacy was barred by the statute of limitations where the action was not brought within one year of the accrual of the cause of actions. Disney v. Horton, 2000 U.S. Dist. LEXIS 5359 (N.D. Miss. Apr. 13, 2000).

10. Intentional infliction of emotional distress.

There was no error in dismissing a claim for negligent infliction of emotional distress because a complaint actually alleged a claim for intentional infliction of emotional distress, which was governed by a one-year statute of limitations. The complaint stated that a paramour’s acts were reckless and without justification, the acts of the paramour evoked outrage and disgust in civilized society, and the pattern of conduct perpetrated by the paramour caused foreseeable harm. Anderson v. Ladner, 198 So.3d 381, 2016 Miss. App. LEXIS 15 (Miss. Ct. App.), cert. denied, 202 So.3d 617, 2016 Miss. LEXIS 364 (Miss. 2016).

Trial court properly granted summary judgment in favor of a school and its team doctor because alumni’s claims of infliction of emotional distress were time-barred; because the alumni admitted that no injury was sustained at the time of drug screens and physicals, those procedures could not be the basis for a claim of intentional infliction of emotional distress. Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Where an employee’s claim of intentional infliction of emotional distress was based on the same allegations underlying the employee’s complaints of employment discrimination, the claim was time-barred because the complaint was filed more than one year after the employee was terminated. Fife v. Vicksburg Healthcare, LLC, 945 F. Supp. 2d 721, 2013 U.S. Dist. LEXIS 67748 (S.D. Miss. 2013).

Trial court properly treated a husband’s claim as one for intentional infliction of emotional distress as the husband alleged that a doctor acted recklessly and that his acts evoked outrage and disgust in civilized society, resulting in great emotional distress to the husband. Moreover, the trial court properly dismissed the claim as time-barred as it was not filed within the one-year statute of limitations in Miss. Code Ann. §15-1-35. Carter v. Reddix, 115 So.3d 851, 2012 Miss. App. LEXIS 813 (Miss. Ct. App. 2012).

In Mississippi, intentional infliction of emotional distress claims are governed by the one-year statute of limitations found in Miss. Code Ann. §15-1-35. Bristow v. Baskerville, 2010 U.S. Dist. LEXIS 129131 (S.D. Miss. Dec. 6, 2010), vacated, 2011 U.S. Dist. LEXIS 41860 (S.D. Miss. Apr. 12, 2011).

Trial court did not err in granting a former employer’s motion for summary judgment in former employees’ action alleging intentional infliction of emotional distress because the employees’ claim was barred by the one-year statute of limitations found in Miss. Code Ann. §15-1-35; the tort of intentional infliction of emotional distress is of like kind or classification as the torts enumerated in §15-1-35, and it too carries a one-year statute of limitations, and to the extent the Norman v. Bucklew, 684 So. 2d 1246, 1256 (Miss. 1996) holds otherwise, it is expressly overruled. Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 2010 Miss. LEXIS 72 (Miss. 2010).

Because a former employee testified that there were continuing, unlawful acts of intentional infliction of emotional distress, the one-year statute of limitations in Miss. Code Ann. §15-1-35 did not bar his intentional infliction of emotional distress claims against his former employer, a manager, and a store services company. Davis v. Belk Stores Servs., 2009 U.S. Dist. LEXIS 487 (S.D. Miss. Jan. 6, 2009).

Arrestee’s intentional infliction of emotional distress claim against a police officer was time barred under the one-year limitations period in Miss. Code Ann. §15-1-35 where the incident underlying the cause of action occurred well over one year before the arrestee filed suit until June 17, 2005. Ayers v. City of Holly Springs, 2008 U.S. Dist. LEXIS 30852 (N.D. Miss. Feb. 29, 2008).

Because there was repeated wrongful conduct by defendant attorney, the continuing tort doctrine applied, and the trial court did not err in tolling the statute of limitations until the date of the divorce decree. Therefore, a former husband/client’s claim for intentional infliction of emotional distress for the adulteress affair between the attorney and the husband’s former wife was filed within the applicable one-year statute of limitations under Miss. Code Ann. §15-1-35. Pierce v. Cook, 992 So. 2d 612, 2008 Miss. LEXIS 398 (Miss. 2008).

Where borrowers signed a loan agreement in 1995 and brought suit against the lender in 2001, claim for intentional infliction of emotional distress, which was subject to the one-year statute of limitations, was time-barred because the intentional act that formed the basis of the claim involved the alleged misrepresentations or omissions made in 1995, at the time of the execution of the loan agreement. CitiFinancial Mortg. Co. v. Washington, 967 So. 2d 16, 2007 Miss. LEXIS 590 (Miss. 2007).

In a Title VII racial discrimination case in which the complained-of actions took place in 2004 and the employee’s suit was filed in 2006, any intentional infliction of emotional distress claim was barred by the statute of limitations in Miss. Code Ann. §15-1-35. Furthermore, any state tort claim grounded in negligence asserted by the employee would be barred by the exclusive remedy provision of the Mississippi Workers’ Compensation Law. Fortenberry v. Gulf Coast Cmty. Action Agency, Inc., 2007 U.S. Dist. LEXIS 89831 (S.D. Miss. Dec. 5, 2007).

Customer’s claim of intentional infliction of emotional distress related to claims for defamation, invasion of privacy, or fraud; as with his claim for invasion of privacy, the customer alleged his claim of intentional infliction of emotional distress more than a year later, and therefore his claim of intentional infliction of emotional distress was barred. Hudson v. Palmer, 977 So. 2d 369, 2007 Miss. App. LEXIS 580 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 95 (Miss. 2008).

Employee’s claim of intentional infliction of emotional distress against her supervisor was barred by Miss. Code Ann. §15-1-35 because the evidence indicated that the last instance of the supervisor’s conduct occurred on September 10, 2001, and the employee did not file her complaint until January 2003. Jones v. B.L. Dev. Corp., 940 So. 2d 961, 2006 Miss. App. LEXIS 792 (Miss. Ct. App. 2006).

Employee’s claim for the intentional infliction of emotional distress was barred by the one-year limitation of the statute of limitations, Miss. Code Ann. §15-1-35 and the continuing tort doctrine did not apply because the harm alleged reverberated from one wrongful act. Bellum v. PCE Constructors Inc., 407 F.3d 734, 2005 U.S. App. LEXIS 7056 (5th Cir. Miss. 2005), cert. denied, 546 U.S. 1139, 126 S. Ct. 1150, 163 L. Ed. 2d 1002, 2006 U.S. LEXIS 794 (U.S. 2006).

The limitation period on actions for assault and battery and intentional infliction of emotional distress is one year and trial court did not err in dismissing action raising claims under those theories where plaintiff’s complaint was not received in the mail by the trial court clerk until more than one year following the incident giving rise to the alleged causes of action. Slaydon v. Hansford, 830 So. 2d 686, 2002 Miss. App. LEXIS 477 (Miss. Ct. App. 2002), overruled, Blake v. Estate of Clein, 37 So.3d 622, 2010 Miss. LEXIS 322 (Miss. 2010).

Even assuming that the statute applied to the plaintiff’s action for intentional infliction of emotional distress, the action was commenced in a timely manner where the defendant’s wrongful conduct began in August 1994, with the first commitment proceeding, and continued until September 1997, with the culmination of the second commitment proceeding, and the complaint was filed just seven months after the second commitment application was filed; further, though the first commitment hearing and its related subsequent events prior to the second commitment hearing occurred outside the limitation period, the violation was closely related to the violations occurring within the limitation period and recovery was permitted on the theory that all violations were part of one continuing act. McCorkle v. McCorkle, 811 So. 2d 258, 2001 Miss. App. LEXIS 9 (Miss. Ct. App. 2001).

11. Malicious prosecution.

Arrestee’s malicious prosecution claim against a police officer was time barred under the one-year limitations period in Miss. Code Ann. §15-1-35 where the arrestee was found not guilty of charges of making a threat against the officer on December 4, 2003, but did not file suit until June 17, 2005. Ayers v. City of Holly Springs, 2008 U.S. Dist. LEXIS 30852 (N.D. Miss. Feb. 29, 2008).

12. Discovery rule.

Administrator’s actions alleging wrongful death, intentional infliction of emotional distress, and civil conspiracy were all barred by the one-year statute of limitations, and the discovery rule did not apply because all three of these actions had prescribed limitations periods. Sharkey v. Barber, 188 So.3d 1245, 2016 Miss. App. LEXIS 73 (Miss. Ct. App. 2016).

Circuit court properly granted an employer’s motion to dismiss–an employee’s action for assault, battery, intentional and negligent infliction of emotional distress, and breach of an employment contract as untimely because, while the employee was underage when employer allegedly began to sexually abuse her, she failed to show that, when her employer allegedly sexually abused her, she was of unsound mind, legal infancy, suffered a latent injury, or that there was something secretive or inherently undiscoverable about the alleged acts or wrongdoing, the discovery rule was inapplicable where the alleged wrongful acts were physical and the employee was aware of the wrongdoing when it happened. Reeg v. Keel, 174 So.3d 309, 2015 Miss. App. LEXIS 425 (Miss. Ct. App. 2015).

Secretive nature of extra-marital affairs rendered plaintiff wife’s injuries latent such that the discovery rule applied to her alienation of affection and negligent and intentional infliction of emotional distress claims against her husband’s extramarital partner so factual issues remained as to the date she discovered the affair. Bristow v. Baskerville, 2010 U.S. Dist. LEXIS 129131 (S.D. Miss. Dec. 6, 2010), vacated, 2011 U.S. Dist. LEXIS 41860 (S.D. Miss. Apr. 12, 2011).

Though the discovery rule is not explicitly codified in Miss. Code Ann. §15-1-35 which provides the one-year statute of limitations for an intentional infliction of emotional distress claim, courts have nonetheless applied the discovery rule to claims governed by that statute. Bristow v. Baskerville, 2010 U.S. Dist. LEXIS 129131 (S.D. Miss. Dec. 6, 2010), vacated, 2011 U.S. Dist. LEXIS 41860 (S.D. Miss. Apr. 12, 2011).

13. Tolling.

Homeowners intentional tort claims against a contractor were time-barred by the statute of limitations for intentional torts because their improperly filed and later stricken amended complaint that was filed by the homeowners in a prior action against the contractor did not operate to toll the statute of limitations. Johnson v. Rhett, 250 So.3d 486, 2018 Miss. App. LEXIS 11 (Miss. Ct. App. 2018).

RESEARCH REFERENCES

ALR.

Necessity and sufficiency of allegations in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause. 14 A.L.R.2d 264.

When cause of action accrues, for purpose of starting the running of the statute of limitations against an action for malicious prosecution. 87 A.L.R.2d 1047.

Scope of limitation statutes specifically governing assault and battery. 90 A.L.R.2d 1230.

What constitutes “publication” of libel in order to start running of period of limitations. 42 A.L.R.3d 807.

When statute of limitations commences to run against claim for contribution or indemnity based on tort. 57 A.L.R.3d 867.

What statute of limitations applies to action for contribution against joint tortfeasor. 57 A.L.R.3d 927.

When statute of limitations commences to run against malpractice action based on leaving foreign substance inpatients body. 70 A.L.R.3d 7.

Effect of injured employee’s proceeding for workmen’s compensation benefits on running of statute of limitations governing action for personal injury arising from same incident. 71 A.L.R.3d 849.

Tort claim against which period of statute of limitations has run as subject to setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident. 72 A.L.R.3d 1065.

Nature of termination of civil action required to satisfy element of favorable termination to support action for malicious prosecution. 30 A.L.R.4th 572.

Limitation of actions: time of discovery of defamation as determining accrual of action. 35 A.L.R.4th 1002.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action. 42 A.L.R.4th 272.

Tolling of statute of limitations, on account of minority of injured child, as applicable to parent’s or guardian’s right of action arising out of same injury. 49 A.L.R.4th 216.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice. 70 A.L.R.4th 535.

Application of “discovery rule” to postpone running limitations against action for damages from assault. 88 A.L.R.4th 1063.

Libel and slander: Charging one with breach or nonperformance of contract. 45 A.L.R.5th 739.

Actionability of malicious prosecution under 42 USCS § 1983. 79 A.L.R. Fed. 896.

Am. Jur.

32 Am. Jur. 2d, False Imprisonment § 64.

CJS.

54 C.J.S., Limitations of Actions §§ 87-89.

Editor’s Notes —

Laws, 1989, ch. 311,§ 7, effective from and after July 1, 1989, provides as follows:

“SECTION 7. The provisions of this act shall apply only to causes of action accruing on or after July 1, 1989.”

Amendment Notes —

The 2002 amendment, 3rd Ex Sess, inserted “institution for the aged or infirm” in (1) and (2); and added (14) and (15).

JUDICIAL DECISIONS

1. In general.

2. Construction.

3. Applicability.

4. Discovery rule.

5. Accrual.

6. Particular cases.

7. Notice.

1. In general.

Dismissal for failure to provide notice under Miss. Code Ann. §15-1-36(15) (Rev. 2003) ordinarily should be without prejudice. Williams v. Skelton, 6 So.3d 428, 2009 Miss. LEXIS 138 (Miss. 2009).

Second complaint filed by a patient in a medical malpractice action was not untimely because pursuant to Miss. Code Ann. §§15-1-36(15) and15-1-57 the two-year statute of limitations was tolled for the 60 day period during which the patient was required to give notice of his claim to a doctor and medical center. Caldwell v. Warren, 2 So.3d 751, 2009 Miss. App. LEXIS 63 (Miss. Ct. App. 2009).

Notice requirement of Miss. Code Ann. §15-1-36(15) is a pre-suit prerequisite to a claimant’s right to file suit. Thomas v. Warden, 999 So. 2d 842, 2008 Miss. LEXIS 600 (Miss. 2008).

Circuit court erred in dismissing the doctor as a defendant from the beneficiaries’ wrongful death claim where the time allowed by the medical malpractice statute of limitations had not yet expired when the doctor was served with the amended complaint. Long v. Mem'l Hosp. at Gulfport, 969 So. 2d 35, 2007 Miss. LEXIS 570 (Miss. 2007).

Medical malpractice suit was properly dismissed for failure to state a claim because plaintiffs did comply with Miss. Code Ann. §11-1-58 by filing with their complaint either an expert disclosure or a certificate of counsel stating that an expert disclosure had not yet been obtained because of the running of the statute of limitations under Miss. Code Ann. §15-1-36; strict compliance with Miss. Code Ann. §11-1-58 was mandatory, and defendants, a medical center and the estate of a deceased doctor, which had been substituted as a defendant under Miss. R. Civ. P. 25(a)(1) after the doctor’s death and reasserted the defenses raised by the doctor, had both raised as an affirmative defense plaintiffs’ failure to comply with the statute. Caldwell v. N. Miss. Med. Ctr., Inc., 956 So. 2d 888, 2007 Miss. LEXIS 280 (Miss. 2007), overruled in part, Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

In a patient’s negligence action, in granting the motion to amend the complaint four years after the initial suit to add the health care provider as a new party, it appeared obvious that the new “fraudulent concealment” argument was advanced as a “savings” option, because without it the statute of limitation on negligence actions would have barred any action; because the trial court erred in granting the motion to amend the complaint, the issue of whether or not the amended complaint would relate back became moot. Medicomp, Inc. v. Marshall, 878 So. 2d 193, 2004 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 917 (Miss. 2004), cert. denied, 543 U.S. 1028, 125 S. Ct. 671, 160 L. Ed. 2d 508, 2004 U.S. LEXIS 8083 (U.S. 2004).

A failure to understand the degree of permanency of an injury does not cause the statute of limitation to toll. Barry v. Thaggard, 785 So. 2d 1107, 2001 Miss. App. LEXIS 219 (Miss. Ct. App. 2001).

The six-year statute of limitations contained in §15-1-49 does not apply to an action for medical malpractice; instead, the two-year statute of limitations contained in this section applies to such an action. Goleman v. Orgler, 771 So. 2d 374, 2000 Miss. App. LEXIS 253 (Miss. Ct. App. 2000).

Interlocutory appeal from the circuit court would be granted to determine whether the 6 year statute of limitations provided by Mississippi Code §15-1-49, or the medical malpractice statute of limitations found in Mississippi Code §15-1-36, applies to a medical malpractice action in which plaintiff alleged injury resulting from defendants’ negligence in leaving a surgical needle in his heart during surgery performed on June 28, 1974, but of which plaintiff was unaware until June 21, 1982. Kilgore v. Barnes, 490 So. 2d 895, 1986 Miss. LEXIS 2500 (Miss. 1986).

In a medical malpractice action, physician’s motion for summary judgment should be denied where the evidence in support of the motion failed to show that there were no factual issues as to whether the patient discovered within the 2 year limitations period that he had been injured by physician’s failure to resect tumor. Smith v. Sanders, 485 So. 2d 1051, 1986 Miss. LEXIS 3102 (Miss. 1986).

2. Construction.

When drafting Miss. Code Ann. §15-1-36(15), the Mississippi Legislature did not incorporate any given exceptions to the rule that would alleviate the prerequisite condition of prior written notice. Simply stated, “shall” is mandatory, while “may” is discretionary. Thomas v. Warden, 999 So. 2d 842, 2008 Miss. LEXIS 600 (Miss. 2008).

3. Applicability.

Trial court correctly dismissed a widow’s negligence action against a psychiatrist who treated the widow’s husband prior to his death by suicide, as there is no basis for a negligence action for wrongful death by suicide. However, the intentional act allegations in the complaint could be viable, even though those acts arose in a medical context. Irby v. Madakasira, 252 So.3d 614, 2018 Miss. App. LEXIS 277 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 375 (Miss. 2018).

Cardiology practice was entitled to summary judgment in a patient’s medical malpractice action because the action was untimely where, while the patient claimed she was suing for ordinary negligence and couched her complaint in terms of premises liability, the patient was in the middle of a “stress test”-a medical diagnostic test being administered by a cardiologist and several nurses-when the treadmill on which she was walking suddenly sped up, causing her to fall, the nurses assisting her with the test allegedly did not respond to her call for help, and the patient’s action was filed more than two years after the fall. Moore v. Jackson Cardiology Assocs., P.A., 192 So.3d 1050, 2015 Miss. App. LEXIS 629 (Miss. Ct. App. 2015).

One-year statute of limitations for intentional tort claims, rather than the two-year statute of limitations for negligence claims, was applicable when a wrongful death suit against a psychiatrist alleged that the psychiatrist’s intentional acts created an irresistible impulse in the decedent, a patient, to commit suicide. Irby v. Madakasira, — So.3d —, 2017 Miss. App. LEXIS 173 (Miss. Ct. App. Mar. 28, 2017).

Patient’s fraudulent conduct claims did fall under medical malpractice statute of limitations contained in Miss. Code Ann. §15-1-36(2) because the claims arose out of the course of a medical, surgical, or other professional service as it involved a doctor’s assessment, treatment, and advice, it required expert medical testimony, and it occurred in the context of a physician-patient relationship. Chitty v. Terracina, 16 So.3d 774, 2009 Miss. App. LEXIS 560 (Miss. Ct. App. 2009).

In a patient’s medical malpractice suit, which was governed by Mississippi’s limitations periods in Miss. Code Ann. §15-1-36, and Tennessee substantive law, because the suit was filed before the three-year limitations period in Tenn. Code Ann. §29-26-116(a)(3) expired, Mississippi’s treatment of foreign statutes of repose as substantive was not implicated. Huss v. Gayden, 571 F.3d 442, 2009 U.S. App. LEXIS 12665 (5th Cir. Miss. 2009), cert. denied, 559 U.S. 1007, 130 S. Ct. 1892, 176 L. Ed. 2d 365, 2010 U.S. LEXIS 2614 (U.S. 2010).

Patient’s medical malpractice claim was untimely filed, Miss. Code Ann. §§15-1-36(15) and15-1-57 because the sixty-day notice period during which the patient was barred from filing suit extended the two-year statute of limitations by only sixty days, and the patient’s complaint was filed after the sixty days had expired. Blessitt v. King's Daughters Hosp., 18 So.3d 878, 2009 Miss. App. LEXIS 46 (Miss. Ct. App. 2009).

Order dismissing a patient’s action against a hospital on the ground that the suit was a medical malpractice action and the two-year statute of limitations in Miss. Code Ann. §15-1-36(1) applied was upheld because the patient’s fall from an x-ray table occurred while the hospital was performing a medical, professional, or surgical service. Howell v. Garden Park Cmty. Hosp., 1 So.3d 900, 2008 Miss. App. LEXIS 524 (Miss. Ct. App. 2008).

Where an employee killed co-workers after being referred to counseling by the employer and an employee assistance provider (EAP), the EAP was not entitled to summary judgment as to negligence claims because pre-suit notice and an expert certification were not required since the claims were for ordinary negligence, not medical malpractice; for the same reason, the statute of limitations for medical malpractice claims did not apply. Tanks v. NEAS, Inc., 519 F. Supp. 2d 645, 2007 U.S. Dist. LEXIS 70334 (S.D. Miss. 2007).

Notice requirements of Miss. Code Ann. §15-1-36 apply only to licensed facilities. Saul v. Jenkins, 963 So. 2d 552, 2007 Miss. LEXIS 493 (Miss. 2007).

Additional determinations needed to be made as to the licensure status of a nursing home facility in a negligence suit brought by a patient; the notice provision of Miss. Code Ann. §15-1-36(15) did not apply to non-licensed facilities. Saul v. Jenkins, 963 So. 2d 552, 2007 Miss. LEXIS 493 (Miss. 2007).

Pre-suit notice requirement imposed by Miss. Code Ann. §15-1-36(15), which mandates that health care defendants must be notified before a malpractice suit is filed against them, is substantive in nature for Erie purposes, is applicable in federal district court diversity actions, and is not preempted because it does not conflict with Fed. R. Civ. P. 3, 4, 8, which relate to the commencement of an action but do not say anything about pre-suit notice; just as the notice requirement of Miss. Code Ann. §15-1-36(15) is substantive in nature, so is the requirement that malpractice suits must be dismissed if proper notice is not provided as required by § 15-1-36(15). Redmond v. Astrazeneca Pharms. LP, 492 F. Supp. 2d 575, 2007 U.S. Dist. LEXIS 19860 (S.D. Miss. 2007).

Patient’s amended complaint, adding a doctor and clinic as defendants, could not be treated for purposes of the added parties as an original complaint; because only the motion to amend the complaint pursuant to Miss. R. Civ. P. 15(c) was considered filed before the expiration of the two-year statute of limitations under Miss. Code Ann. §15-1-36, when the trial court denied the motion to amend, the practical effect was that no amended complaint had ever been filed. Wilner v. White, 929 So. 2d 315, 2006 Miss. LEXIS 267 (Miss. 2006).

In an appeal of dismissal of a medical malpractice case due to limitations, the judgment was reversed because it was timely filed within the statute of limitations; the most reasonable interpretation of Miss. Code Ann. §15-1-36(15) and §15-1-57 tolled the two-year statute of limitations for 60 days. Pope v. Brock, 912 So. 2d 935, 2005 Miss. LEXIS 540 (Miss. 2005).

Grant of summary judgment in favor of the medical center and others in the individual’s medical malpractice action was appropriate because his claim was time-barred by Miss. Code Ann. §15-1-36. The claim was filed almost 10 years after receiving authorization and approximately 18 years after his treatment. Johnson v. Blackwood, 919 So. 2d 1053, 2005 Miss. App. LEXIS 463 (Miss. Ct. App. 2005).

Statute applied in medical malpractice suit where the tortious act occurred three years before the effective date of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-11, thereby leaving a patient two years in which to file suit. Bailey v. Al-Mefty, 807 So. 2d 1203, 2001 Miss. LEXIS 229 (Miss. 2001).

The 2-year statute of limitations set forth in §15-1-36, rather than the general 6-year limitation period of §15-1-49, applied to a medical malpractice action against a nurse and a company that supplied nursing personnel, where the company’s sole basis for liability was the fact that it was the nurse’s employer; since §15-1-36 specifically names nurses among those covered and the company’s liability was predicated solely upon the doctrine of respondeat superior, the bar of the suit against the nurse likewise barred the action as to the company. Under §15-1-3, §15-1-36 barred both the right of action against the nurse and the company and also barred any remedy against both parties. Lowery v. Statewide Healthcare Service, Inc., 585 So. 2d 778, 1991 Miss. LEXIS 651 (Miss. 1991).

The 2-year medical malpractice statute of limitations, set forth in §15-1-36, applied to a situation where a nurse failed to raise the rails of a bed for a patient under heavy sedation, resulting in the patient falling out of the bed and being injured. A nurse’s decision as to whether bedrails should be utilized entails a degree of knowledge concerning the patient’s condition, medication, and history. The rails themselves are but another instrumentality by which the safety of patients may be insured. This plainly calls for the rendition of a medical or professional service, thus the medical malpractice statute of limitations applies to such a situation. Bell v. West Harrison County Dist., 523 So. 2d 1031, 1988 Miss. LEXIS 210 (Miss. 1988).

Medical malpractice action was not barred by statute of limitations where alleged negligent act occurred on June 28, 1974, foreign object was discovered in lining of patient’s heart on June 21, 1982, and action was filed on June 14, 1984, because enactment of specific statute of limitations, §15-1-36, dealing with malpractice tort claims, controlled over general statute, §15-1-49; specific statute defined date of accrual of action as being date of alleged act, omission, or neglect, or date injury would or with reasonable diligence might have been first known or discovered, and provided that it applied to claims which accrued on or after July 1, 1976; fact that different definition of accrual may have been accepted with respect to general 6-year statute of limitations was beside point, because that definition had been superseded by specific statute of limitations. Kilgore v. Barnes, 508 So. 2d 1042, 1987 Miss. LEXIS 2448 (Miss. 1987).

Section 15-1-36 imposing 2-year limit from date negligence was discovered or might with reasonable diligence have been known or discovered does not apply to cases arising before statute’s enactment in 1976; as to such actions, time-of-injury rule applies. Vidrine v. Enger, 752 F.2d 107, 1984 U.S. App. LEXIS 19892 (5th Cir. Miss. 1984).

4. Discovery rule.

Circuit court properly granted the doctor’s motion for summary judgment and dismissed the patient’s medical-malpractice complaint asserting that the doctor was negligent in performing dental-implant surgery on her as the two-year statute of limitations expired because the patient, by exercising reasonable diligence, should have reasonably discovered the doctor’s alleged negligence following her self-referral to a second doctor in March 2012, and the two-year statute of limitations on the patient’s claim expired by the time she filed her complaint on June 17, 2014; and, in the second doctor’s follow-up note, he reaffirmed his diagnosis that the patient had experienced dental trauma. Pigott v. Taylor, 230 So.3d 754, 2017 Miss. App. LEXIS 134 (Miss. Ct. App. 2017).

Circuit correctly held that the discovery rule did not toll the statute of limitations for the four months a patient’s family was waiting on the autopsy report because the family believed a nurse practitioner’s negligence played a part in the patient’s death before the autopsy report was signed; an autopsy was performed based on the family’s suspicions, and thus, the autopsy report was not when their suspicions first began. Waldrup v. Eads, 180 So.3d 820, 2015 Miss. App. LEXIS 635 (Miss. Ct. App. 2015).

In a medical malpractice suit, whether the discovery rule tolls the statute of limitations requires a determination by the trier of fact regarding the date the alleged act, omission or neglect shall or with reasonable diligence might have been first discovered. Holaday v. Moore, 169 So.3d 847, 2015 Miss. LEXIS 206 (Miss. 2015).

In a medical malpractice suit, whether the discovery rule tolls the statute of limitations requires a determination by the trier of fact regarding the date the alleged act, omission or neglect shall or with reasonable diligence might have been first discovered. Holaday v. Moore, 169 So.3d 847, 2015 Miss. LEXIS 206 (Miss. 2015).

Trial court erred in granting summary judgment to a radiologist on the grounds that the statute of limitations, Miss. Code Ann. §15-1-36(1), had expired prior to the patient’s amending her complaint, because the patient was not aware of the radiologist’s existence or role in her treatment until she requested medical records. Stringer v. Trapp, 30 So.3d 339, 2010 Miss. LEXIS 147 (Miss. 2010).

In an issue certified to the Mississippi Supreme Court pursuant to Miss. R. App. P. 20(a), the court interpreted the application of the limitations period of Miss. Code Ann. §15-1-36, to be tolled until plaintiff patient, through reasonable diligence, learned of the alleged negligence of her treating physician, and not just learned of her injury. Huss v. Gayden, 991 So. 2d 162, 2008 Miss. LEXIS 449 (Miss. 2008).

Under Miss. R. App. P. 20, a divided federal appellate panel of the U.S. Court of Appeals for the Fifth Circuit certified to the Mississippi Supreme Court questions as to when the two-year limitations period in Miss. Code Ann. §15-1-36 began to run, under the discovery rule, in a medical malpractice suit alleging that a woman’s latent heart disease was caused by a doctor’s negligent administration of a drug intended to halt pre-term delivery. Huss v. Gayden, 508 F.3d 240, 2007 U.S. App. LEXIS 26472 (5th Cir. Miss. 2007).

In medical negligence cases, courts must focus their inquiry on when a patient, exercising reasonable diligence, should have first discovered the negligence, rather than the injury; therefore, summary judgment was properly granted to a doctor’s estate in a medical malpractice case based on the discovery rule under Miss. Code Ann. §15-1-36 since the patient was aware of an injury arising out of the prescription of certain drugs after his discharge from a hospital in 2001, and this discovery rule was different than the latent injury focus in Miss. Code Ann. §15-1-49. Sutherland v. Estate of Ritter, 959 So. 2d 1004, 2007 Miss. LEXIS 226 (Miss. 2007).

Circuit court properly denied the doctors’ motion for summary judgment on the wife’s wrongful death claim where, pursuant to the discovery rule, Miss. Code Ann. §15-1-36(2), certain information about the husband’s condition were not given to the wife, and the wife acted diligently by trusting the doctors and waiting over two years before requesting the husband’s medical records. Neglen v. Breazeale, 945 So. 2d 988, 2006 Miss. LEXIS 633 (Miss. 2006).

Medical malpractice case was not barred by the two-year statute of limitations under Miss. Code Ann. §15-1-36 because the discovery rule applied where a patient visited a physician eight different times after surgery to complain about pain and loss of function in her hand; a subsequent surgery by a specialist revealed a nerve wrapped around a screw in the patient’s arm; the patient’s actions showed that she was diligent in discovering the source of her problem. Flores v. Elmer, 938 So. 2d 824, 2006 Miss. LEXIS 471 (Miss. 2006).

Because a patient knew of her injury the date her exploratory surgery occurred, the discovery rule did not apply to toll the running of the statute of limitations in Miss. Code Ann. §15-1-36. Joiner v. Phillips, 953 So. 2d 1123, 2006 Miss. App. LEXIS 649 (Miss. Ct. App. 2006).

In a medical malpractice case, the patient’s late knowledge of the “specifics” of his injuries, based on information provided by a subsequent examining doctor, was insufficient to toll running of the two-year statute of limitation, where the record showed he had been well aware of pain, swelling, and numbness at the site of the surgery, and he had failed to engage in due diligence to discover the causative relationship between injury and the operating physician’s conduct. Thus, summary judgment for the physician was proper. Simpson v. Lovelace, 892 So. 2d 284, 2004 Miss. App. LEXIS 1007 (Miss. Ct. App. 2004).

Although the plaintiff did not file suit until more than two years after her husband’s death, the statute of limitations was tolled until she was able to secure her husband’s medical records, since she exercised reasonable diligence in getting those records and could not reasonably have been expected to know of the defendant’s tortious conduct without the records. Sarris v. Smith, 782 So. 2d 721, 2001 Miss. LEXIS 82 (Miss. 2001).

The discovery rule applies in medical malpractice cases involving latent injuries and diseases. Williams v. Kilgore, 618 So. 2d 51, 1992 Miss. LEXIS 787 (Miss. 1992).

A cause of action for medical malpractice involving negligence which occurred in 1964 but was not discovered until 1985 was not time-barred by either §15-1-36 or §15-1-49 where the complaint was filed within 2 years of the discovery of the injury. Williams v. Kilgore, 618 So. 2d 51, 1992 Miss. LEXIS 787 (Miss. 1992).

The 2-year statute of limitation does not begin to run until the patient discovers or should discover that he has a cause of action. Smith v. Sanders, 485 So. 2d 1051, 1986 Miss. LEXIS 3102 (Miss. 1986).

Where a patient is aware of his injury 2 years immediately prior to filing his claim, but does not discover and could not have discovered with reasonable diligence the act or omission which caused the injury, an action does not accrue until the latter discovery is made. Smith v. Sanders, 485 So. 2d 1051, 1986 Miss. LEXIS 3102 (Miss. 1986).

In a medical malpractice action against a dentist for alleged nerve damage to his patient, the two year statute of limitations period under §15-1-36 began to run on the date on which the patient could reasonably have discovered the permanent nerve damage resulting from the dentist’s treatment. Pittman v. Hodges, 462 So. 2d 330, 1984 Miss. LEXIS 2058 (Miss. 1984).

5. Accrual.

Circuit court did not err in granting a nurse practitioner summary judgment in a medical malpractice action because the two-year limitations period had run by the time a deceased patient’s daughter filed her complaint. Waldrup v. Eads, 180 So.3d 820, 2015 Miss. App. LEXIS 635 (Miss. Ct. App. 2015).

In a malpractice suit, a trial court erred in not granting doctors’, hospital’s, and clinic’s motion for summary judgment because the applicable statute of limitations had run; the matter accrued when a patient first suspected negligence, and the patient consulted with her sister who was a physician. Jackson Clinic for Women, P.A. v. Henley, 965 So. 2d 643, 2007 Miss. LEXIS 441 (Miss. 2007).

Two-year statute of limitations applicable to medical malpractice actions does not commence running until patient discovers or should have discovered that he has cause of action; action accrues when patient could reasonably be held to have knowledge of injury itself, cause of injury, and conduct of medical practitioner. Fortenberry v. Memorial Hosp., 676 So. 2d 252, 1996 Miss. LEXIS 324 (Miss. 1996).

Patient’s medical malpractice action alleging failure to diagnose presence of tumor during emergency room admission accrued on date that another physician determined location and size of tumor, not on date tumor was removed and pathology report was received. Fortenberry v. Memorial Hosp., 676 So. 2d 252, 1996 Miss. LEXIS 324 (Miss. 1996).

A wrongful death action arising in the context of medical negligence is not measured from the date the decedent knew or should have known about the act of negligence, but rather, the cause of action does not accrue until the death of the negligently injured person. Gentry v. Wallace, 606 So. 2d 1117, 1992 Miss. LEXIS 540 (Miss. 1992), overruled, Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923, 2006 Miss. LEXIS 208 (Miss. 2006).

The accrual of a medical malpractice action against a surgeon was not affected by the surgeon’s instructing a nurse that her operative record was incorrect and needed changing, or by the surgeon’s failure to inform the plaintiff’s counsel during discovery of this conversation with the nurse, and thus the action was barred by §15-1-36, where there was no showing that the surgeon’s actions prevented the plaintiff’s counsel from discovering all of the surgeon’s conduct in his treatment of the patient. Shutze v. Pace, 557 So. 2d 776, 1990 Miss. LEXIS 16 (Miss. 1990).

6. Particular cases.

Despite the different notice requirements in the statute and the Mississippi Tort Claims Act, a daughter did not have to file different wrongful death lawsuits at different times because she could have waited until the earliest she could have filed all her claims and still comply with the statute’s pre-suit notice requirement and the two-year statute of limitations; the daughter’s notice served to toll the statute of limitations, and she had an additional ninety days to file suit. Estate of Davis v. Blaylock, 212 So.3d 755, 2017 Miss. LEXIS 2 (Miss. 2017).

Wrongful-death beneficiary’s suit against a nursing home was time-barred because (1) the nursing home was not named until after the statute of limitations had run, and (2) the nursing home’s identity and potential liability were known when the original complaint naming a fictitious defendant was timely filed. Hopkins v. CLC of Biloxi, LLC, 229 So.3d 742, 2017 Miss. App. LEXIS 620 (Miss. Ct. App. 2017).

Trial court properly denied a health care provider’s motion to dismiss a sister’s complaint because the sister was the only party to the action, and thus, the order granting her motion for extension of time to serve process became effective once the order had been signed and had left the trial court’s control; the sister timely obtained an extension to serve process and timely served process within that extension, and, therefore, the statute of limitations remained tolled. Graceland Care Ctr. of New Albany, LLC v. Hamlet ex rel. Kinard, 236 So.3d 1, 2017 Miss. LEXIS 430 (Miss. 2017).

Circuit court properly dismissed an executrix’s wrongful-death lawsuit as untimely because, while the court erred in setting aside its order granting the initial extension to effect service of process, the executrix only needed to show cause when service was effected within the initial 120 days), the executrix failed to show good cause for her second extension where she and her local counsel (the only counsel of record) attempted to shift blame to her out-of-state counsel for local counsel’s failure to timely effect service of process and local counsel failed to inform the circuit court of all the material facts related to the alleged conflict with the executrix’s out-of-state counsel and local counsel’s intent to withdraw from the case. Booth v. Williams, 200 So.3d 1053, 2016 Miss. App. LEXIS 525 (Miss. Ct. App. 2016).

In a medical malpractice suit, the trial court properly denied summary judgment to defendant doctor based on the two-year statute of limitations because defendant’s denial of participation in the patient’s treatment could have constituted fraudulent concealment and ought to have tolled the statute of limitations until plaintiffs learned that an issue of fact existed regarding defendant’s involvement. Holaday v. Moore, 169 So.3d 847, 2015 Miss. LEXIS 206 (Miss. 2015).

In a medical malpractice suit, the trial court properly denied summary judgment to defendant doctor based on the two-year statute of limitations because defendant, unequivocally, both in conversations with another doctor and in an affidavit, strongly denied involvement in plaintiff patient’s treatment, and it was on that basis that the patient and his attorney decided that there was no claim to be made against defendant; however, the depositions of two other doctors about defendant’s involvement in the patient’s treatment created a genuine issue of material fact regarding the point at which plaintiffs had notice of potential claims against defendant. Holaday v. Moore, 169 So.3d 847, 2015 Miss. LEXIS 206 (Miss. 2015).

In a medical malpractice action, the two year limitations period of Miss. Code Ann. §15-1-36(5) (2003) applied to complaints that alleged that the decedents were of unsound mind and did not regain soundness of mind prior to death. As the one year limitations period of §15-1-36(6) conflicted with §15-1-36(5), § 15-1-36(5) was applicable to prevent forfeiture. Estate of Johnson v. Graceland Care Ctr. of Oxford, LLC, 2010 Miss. LEXIS 282 (Miss. June 3, 2010).

Doctor was entitled to summary judgment in a medical malpractice action, because the statute of limitations began to run on the day that the patient was diagnosed with Guillian-Barre Syndrome and lupus and the second action was filed nearly five months after the end of the limitations period, even if the period was tolled by the patient’s pre-suit notice to the doctor. Miller v. Myers, 38 So.3d 648, 2010 Miss. App. LEXIS 320 (Miss. Ct. App. 2010).

In a medical malpractice case in which two doctors, a medical association, and a medical center filed Fed. R. Civ. P. 12(b)(6) motions to dismiss, arguing the personal representative did not have the authority to place them on notice under Miss. Code Ann. §15-1-36 because she had not received judicial authority to place them on notice of her intent to file suit as a conservator at the time notice was given, the personal representative provided them with 60 days notice. While the personal representative had to receive judicial authorization before filing suit, Miss. Code Ann. §93-13-27 did not require a personal representative or a conservator to obtain judicial authorization before sending a notice of intent letter. LaFarge v. Kyker, 2009 U.S. Dist. LEXIS 85656 (N.D. Miss. Sept. 18, 2009).

In a medical malpractice case in which the first action filed by the survivors and heirs of the deceased was clearly filed within the two-year statute of limitations found in Miss. Code Ann. §15-1-36(2), but was dismissed pursuant to Miss. Code Ann. §15-1-36(15) because they had not provided the required notice to the hospital and the healthcare provider prior to filing and the hospital and the healthcare provider filed a motion for summary judgment to dismiss the second medical malpractice suit as untimely, the Saving Statute, Miss. Code Ann. §15-1-69, applied to the second filing, and it was not untimely. The first case had been duly commenced. Herrington v. Promise Specialty Hosp., 665 F. Supp. 2d 708, 2009 U.S. Dist. LEXIS 90509 (S.D. Miss. 2009).

Trial court properly granted a hospital’s motion to dismiss a medical malpractice suit, finding no good cause for the failure of a patient’s family to serve a summons upon the hospital during the 120-day time period, under Miss. R. Civ. P. 4(h), and finding that the two-year statute of limitations, under Miss. Code Ann. §15-1-36(2), had expired. Lucas v. Baptist Mem. Hosp. - N. Miss., Inc., 997 So. 2d 226, 2008 Miss. App. LEXIS 720 (Miss. Ct. App. 2008).

Substitution of a son as the party in a wrongful death case was improper because a patient’s brother lacked standing to bring the action originally; by the time the son filed an amended complaint, the limitations period in Miss. Code Ann. §11-7-13 had expired, and the complaint did not relate back to a nullity, and therefore dismissal was warranted. Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989, 2007 Miss. App. LEXIS 467 (Miss. Ct. App. 2007).

Consumer’s malpractice claims against medical providers, who prescribed prescription medication that the consumer alleged caused serious side effects, were dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because the consumer failed to comply with the pre-suit notice requirement imposed by Miss. Code Ann. §15-1-36(15). Redmond v. Astrazeneca Pharms. LP, 492 F. Supp. 2d 575, 2007 U.S. Dist. LEXIS 19860 (S.D. Miss. 2007).

On August 19, 2001, the patient went into premature labor and gave birth to stillborn twins; she waited until May 18, 2004 to properly file her negligence claim against the doctors. The circuit court granted the doctors’ motion for summary judgment, because the patient failed to comply with the notice requirements of Miss. Code Ann. §15-1-36, and the statute of limitations barred the patient’s claim. Stallworth v. Sanford, 921 So. 2d 340, 2006 Miss. LEXIS 91 (Miss. 2006).

Federal appeals court reversed a $3.5 million jury award to a patient who suffered pulmonary edema and congestive heart failure after taking a drug prescribed to halt premature childbirth; her medical malpractice claim was time-barred under Miss. Code. Ann. §15-1-36, and the magistrate judge who tried the case erred by holding that her doctors waived the defense by failing to raise it in a pretrial dispositive motion. Huss v. Gayden, 465 F.3d 201, 2006 U.S. App. LEXIS 23596 (5th Cir. Miss. 2006), vacated, 571 F.3d 442, 2009 U.S. App. LEXIS 12665 (5th Cir. Miss. 2009).

Because the two-year statute of limitations in Miss. Code Ann. §15-1-36(15) was extended 60 days pursuant to Miss. Code Ann. §15-1-57, the individual’s claim for malpractice against a medical center was timely when it was filed two years and 30 days after the date of injury. Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274, 2006 Miss. LEXIS 313 (Miss. 2006).

Summary judgment was properly awarded to a doctor in a patient’s medical malpractice action where the patient’s amended complaint, in which she added the doctor as a defendant, was not a proper Miss. R. Civ. P. 9(h) substitution, because the amended complaint had not replaced a John Doe defendant with the doctor, and the amended complaint did not relate back to the date of the original pleading under Rules 9(h) and 15(c)(2). Santangelo v. Green, 920 So. 2d 521, 2006 Miss. App. LEXIS 75 (Miss. Ct. App. 2006).

In a medical malpractice action, on remand from a first appeal denying an amended complaint, the trial court granted summary judgment for defendants based on the two-year limitations period. However, upon a petition for rehearing, the appellate court held that based on the unique facts of the case, the amended complaint should have been treated as an original complaint as to the added parties; since the amended complaint was filed prior to the expiration of the statute of limitations (exactly two years after the alleged negligence), and a summons, along with the amended complaint, was served upon the added parties within the time period required by Miss. R. Civ. P. 4(h), the trial judge erred in granting summary judgment for defendants. Wilner v. White, 929 So. 2d 343, 2005 Miss. App. LEXIS 1033 (Miss. Ct. App. 2005), rev'd, 929 So. 2d 315, 2006 Miss. LEXIS 267 (Miss. 2006).

Where defendant waited for twenty-seven years before suing doctors who negligently operated on his leg causing a misalignment of his femur, the suit was dismissed as barred by the statute of limitations. Because defendant noticed the misalignment shortly after the operation, he failed to exercise due diligence in bringing suit. Russell v. Williford, 907 So. 2d 362, 2004 Miss. App. LEXIS 1111 (Miss. Ct. App. 2004), cert. denied, 910 So. 2d 574, 2005 Miss. LEXIS 449 (Miss. 2005).

Court properly dismissed a wife’s medical malpractice action against a medical center as barred by the two-year statute of limitation provided in Miss. Code Ann. §15-1-36(1) because there was no merit to the wife’s claim that the statute did not start running until the day she received an expert opinion from an oncologist. Powe v. Byrd, 892 So. 2d 223, 2004 Miss. LEXIS 1376 (Miss. 2004).

Where patient sued a hospital for negligence, but more than four years later, the patient filed a motion to amend the complaint seeking to add defendant health care provider as a new party to the suit, because negligence was the only cause of action the patient was advancing at the time of trial, the statute of limitation under Miss. Code Ann. §15-1-36 had run prior to the filing of the amended complaint; as to relation back, the appellate court held there was simply no basis in the record upon which the trial court could have made a finding of fraudulent concealment from the patient’s pleadings that would have justified the tolling of the statute of limitations, and the judgment in favor of the patient was reversed. Medicomp, Inc. v. Marshall, 878 So. 2d 193, 2004 Miss. App. LEXIS 129 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 917 (Miss. 2004), cert. denied, 543 U.S. 1028, 125 S. Ct. 671, 160 L. Ed. 2d 508, 2004 U.S. LEXIS 8083 (U.S. 2004).

In a medical negligence case, and an interlocutory appeal by a medical clinic, the personal representative specifically pled reliance on a “former” attorney’s advice as an element of the defense to the medical clinic’s motion for summary judgment and as a means to toll the statute of limitations. As such, the personal representative used the attorney-client privilege as a sword, and effectively waived the privilege as it related to the testimony the personal representative gave. Jackson Med. Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 2003 Miss. LEXIS 54 (Miss. 2003).

Patient’s timely filing of medical malpractice complaint, with specific instructions to clerk to withhold issuing process, tolled statute of limitations for 120-day period after filing of complaint during which service on defendants was required. Fortenberry v. Memorial Hosp., 676 So. 2d 252, 1996 Miss. LEXIS 324 (Miss. 1996).

Good cause was shown why medical malpractice plaintiff did not complete service on emergency room physician within specified time period, and thus dismissal of action was not warranted, notwithstanding fact that plaintiff failed to seek third extension of time for completing service, where plaintiff inquired several hospitals and all defense counsel as to whereabouts of physician, plaintiff asked state medical license board concerning his whereabouts, upon expiration of second extension of time, physician wrote letter advising court that he would approach court on issue of process upon locating physician, and physician was finally located by investigator hired by plaintiff. Fortenberry v. Memorial Hosp., 676 So. 2d 252, 1996 Miss. LEXIS 324 (Miss. 1996).

The filing of a medical malpractice complaint within the 2-year limitation period provided in §15-1-36 commenced the action and tolled the statute of limitations, even though process was not issued or obtained on the defendants until 105 days later. Erby v. Cox, 654 So. 2d 503, 1995 Miss. LEXIS 236 (Miss. 1995).

In a medical malpractice action arising from the defendant’s alleged negligence in performing a tubal ligation, an amendment stating a claim for breach of an oral guarantee that the patient would not become pregnant related back to the date of the original complaint and was therefore not barred by the statute of limitations, since her claim sounded in tort, it arose out of the same occurrence, and the defendant was put on notice. Hudson v. Parvin, 582 So. 2d 403, 1991 Miss. LEXIS 363 (Miss. 1991).

The trial court erred in ruling that the statute of limitations barred a medical malpractice action commenced in March 1980 where the defendant did not diagnose the plaintiff’s cancer until May 1978 and there was nothing in the record to indicate that the plaintiff could have known or discovered her cancer by the exercise of reasonable diligence before that time. Tribou v. Gunn, 410 So. 2d 378, 1982 Miss. LEXIS 1865 (Miss. 1982).

7. Notice.

In a medical negligence case, the trial court erred in denying the employer’s and the employees’ motions to dismiss as the administratix of the decedent’s estate did not comply with the presuit notice requirements in this statute because this statute required each defendant to receive presuit notice, even if there was an employer-employee relationship among defendants; strict compliance with this statute was required, and the failure to satisfy the requirements mandated dismissal without prejudice; and the legislature did not provide an exception that notice to an employer would satisfy the need to notify any employees of the impending suit. Spann v. Wood, 269 So.3d 10, 2018 Miss. LEXIS 383 (Miss. 2018).

Parents’ medical negligence action was dismissed as to the medical care providers where the parents conceded that they had not provided notice as required by Miss. Code Ann. §15-1-36(15), but the claims against two facilities survived a motion for summary judgment as it was unclear whether those facilities were licensed hospitals or were otherwise described in Miss. Code Ann. §15-1-36(1). Hooper v. Jurich, — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 11533 (S.D. Miss. Jan. 30, 2014), dismissed, in part, — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 14834 (S.D. Miss. Feb. 6, 2014).

Even if a daughter’s complaint was timely, it was not preceded by the mandatory sixty days’ pre-suit notice because the daughter filed her pre-suit notice the same day she filed her medical malpractice suit; thus, at a minimum, the daughter’s failure to satisfy the pre-suit notice requirement mandated dismissal without prejudice. Waldrup v. Eads, 180 So.3d 820, 2015 Miss. App. LEXIS 635 (Miss. Ct. App. 2015).

Dismissal of two doctors in a medical-malpractice action brought by the patient and her spouse was inappropriate pursuant to Miss. Code Ann. §15-1-36(15) because the patient’s rejoinder of the doctors as defendants via an amended complaint after statutory notice was provided cured the initial failure to give notice. Hans v. Mem'l Hosp., 40 So.3d 1270, 2010 Miss. App. LEXIS 143 (Miss. Ct. App. 2010).

Plaintiff’s testimony regarding his usual practice and procedure for mailing letters was insufficient to establish that notice was served in compliance with Miss. Code Ann. §15-1-36(15) and Miss. R. Civ. P. 5, in the absence of evidence showing that the required notice letter had actually been stamped and placed in the mail. Brewer v. Wiltcher, 22 So.3d 1188, 2009 Miss. LEXIS 582 (Miss. 2009).

Although a second amended malpractice action could be filed under the savings statute, Miss. Code Ann. §15-1-69 since a letter did not substantially comply with the notice provisions of Miss. Code Ann. §15-1-36(15), the 60 day tolling period was not triggered, the statute of limitations had run, and the action should have been dismissed with prejudice. Arceo v. Tolliver, 19 So.3d 67, 2009 Miss. LEXIS 393 (Miss. 2009).

Trial court properly dismissed plaintiffs’ medical negligence action for failure to comply with the notice requirement of Miss. Code Ann. §15-1-36(15); because defendants did not have 60 days’ prior written notice of the intention to begin the action, the lawsuit was not lawfully filed, and it was of no legal effect. Thomas v. Warden, 999 So. 2d 842, 2008 Miss. LEXIS 600 (Miss. 2008).

Because Miss. Code Ann. §15-1-36(15) clearly and unambiguously stated that no action against a health care provider could be commenced without providing a 60-day pre-suit notice and because the personal representative of a decedent’s estate failed to provide any written notice to a nursing care facility concerning her intent to commence a wrongful death suit, the nursing care facility was entitled to a dismissal. Forest Hill Nursing Ctr. & Long Term Care Mgmt., LLC v. Brister, 992 So. 2d 1179, 2008 Miss. LEXIS 521 (Miss. 2008).

Summary judgment was granted in favor of the doctor where the patient failed to give proper notice, Miss. Code Ann. §15-1-36(15) as the doctor’s name should have been known to the patient prior to the commencement of the lawsuit and no written notice was given to the doctor as required; the patient’s failure to provide notice to the doctor was properly fatal to continuation of the suit, and dismissal with prejudice was proper. Andrews v. Arceo, 988 So. 2d 399, 2008 Miss. App. LEXIS 447 (Miss. Ct. App. 2008).

Lawsuit for medical negligence was properly dismissed because an individual did not comply with the requisite 60-day waiting period provided in Miss. Code Ann. §15-1-36(15) because the suit was filed only 37 days after sending the notice of intent to sue, and the premature filing of the suit was in violation of the mandates of §15-1-36(15), despite the complaint not being served on the doctors until after the 60-day period, because § 15-1-36(15) specifically provided that commencement of the suit, as distinguished from the service of process, could not have begun until after 60 days had passed since the doctors were given notice of the intention to sue. Williams v. Skelton, 6 So.3d 433, 2008 Miss. App. LEXIS 250 (Miss. Ct. App. 2008), aff'd, 6 So.3d 428, 2009 Miss. LEXIS 138 (Miss. 2009).

Plaintiff’s medical malpractice complaint should have been dismissed because she wholly failed to provide any written notice to any medical provider concerning her intention to commence suit, as required under the plain language of Miss. Code Ann. §15-1-36(15); although plaintiff had the constitutional right to seek redress in the state courts for the death of her daughter under the First Amendment, she also had the responsibility to comply with §15-1-36(15). Arceo v. Tolliver, 949 So. 2d 691, 2006 Miss. LEXIS 650 (Miss. 2006).

Trial court erred in not granting a physician’s and a hospital’s motion to dismiss in a medical malpractice case when the executrix of the deceased patient’s estate failed to comply with the notice provisions of Miss. Code Ann. §15-1-36(15). Arceo v. Tolliver, 2006 Miss. LEXIS 385 (Miss. Aug. 3, 2006), op. withdrawn, sub. op., 949 So. 2d 691, 2006 Miss. LEXIS 650 (Miss. 2006).

In a medical malpractice action, where a patient contended that she sent a doctor notice of her claims at the best available address, that she received a response letter from the doctor’s malpractice insurer stating that it would forward a copy of the notice to the doctor, and that she did not file suit until 88 days after the date on the response letter, the patient substantially complied with the medical malpractice notice provision contained in Miss. Code Ann. §15-1-36(15). Carpenter v. Reinhard, 345 F. Supp. 2d 629, 2004 U.S. Dist. LEXIS 26581 (N.D. Miss. 2004).

RESEARCH REFERENCES

ALR.

Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner. 80 A.L.R.2d 320.

When statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner. 80 A.L.R.2d 368.

Applicability, to negligence action against hospital, of statute of limitations applicable to malpractice and related actions against physicians, surgeons, and the like. 89 A.L.R.2d 1180.

Applicability, in action against nurse in her professional capacity, of statute of limitations applicable to malpractice. 8 A.L.R.3d 1336.

When statute of limitations commences to run against malpractice action based on leaving foreign substance in patient’s body. 70 A.L.R.3d 7.

Medical malpractice: amendment purporting to change the nature of the action or theory of recovery, made after statute of limitations has run, as relating back to filing of original complaint. 70 A.L.R.3d 82.

Statute of limitations relating to medical malpractice actions as applicable to actions against unlicensed practitioner. 70 A.L.R.3d 114.

When statute of limitations begins to run against malpractice action in connection with sterilization or birth control procedures. 93 A.L.R.3d 218.

When statute of limitations begins to run in dental malpractice suits. 3 A.L.R.4th 318.

Time of discovery as affecting running of statute of limitations in wrongful death action. 49 A.L.R.4th 972.

Medical malpractice: applicability of “foreign object” exception in medical malpractice statutes of limitation. 50 A.L.R.4th 250.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice. 70 A.L.R.4th 535.

Medical malpractice: when limitations period begins to run on claim for optometrist’s malpractice. 70 A.L.R.4th 600.

Liability of osteopath for medical malpractice. 73 A.L.R.4th 24.

“Dual Capacity Doctrine” as basis for employee’s recovery for medical malpractice from company medical personnel. 73 A.L.R.4th 115.

Medical malpractice in connection with diagnosis, care, or treatment of diabetes. 43 A.L.R.5th 87.

Medical malpractice statutes of limitation minority provisions. 71 A.L.R.5th 307.

Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations. 121 A.L.R.5th 365.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient’s cause of action. 14 A.L.R.6th 301.

Effect of Fraudulent or Negligent Concealment of Patient’s Cause of Action on Timeliness of Action Under Medical Malpractice Statute of Repose. 19 A.L.R.6th 475.

When does cause of action accrue for medical malpractice claim under Civil Rights Act of 1871 (42 USCS § 1983). 52 A.L.R. Fed. 780.

Am. Jur.

25 Am. Jur. 2d, Drugs and Controlled Substances § 247.

51 Am. Jur. 2d, Limitation of Actions §§ 121 et seq.

61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers §§ 140 et seq.

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 278.3 (complaint, petition, or declaration-podiatric malpractice); Forms 351 et seq. (limitations of action).

4 Am. Jur. Trials, Solving Statutes of Limitation Problems §§ 34 et seq.

26 Am. Jur. Proof of Facts 3d 185, Discovery Date in Medical Malpractice Litigation.

Jackson, Legislative reform of statutes of limitations in Mississippi: proposed interpretations, possible problems. 9 Miss College LR 231, Spring 1989.

CJS.

54 C.J.S., Limitations of Actions §§ 205, 206.

70 C.J.S., Physicians, Surgeons, and Other Health Care Providers §§ 94.

Law Reviews.

1979 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 887, December 1979.

1982 Mississippi Supreme Court Review: Torts: Statute of Limitations in Medical Malpractice Cases. 53 Miss. L. J. 175, March 1983.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

Cross References —

Sales under decrees of chancery courts, see §§11-5-91 to11-5-117.

Provision for suspension of inconsistent laws regarding foreclosure of mortgaged property in certain emergency situations, see §89-1-319.

JUDICIAL DECISIONS

1. In general.

2. Defects subject to limitation.

3. Good faith.

4. —Subsequent purchasers.

5. Purchase price, payment of.

6. Persons affected.

7. Rights and interests affected.

1. In general.

Where the chancery court approved the sale of the first parcel of the ward’s land in 1994 and approved the sale of the remaining acres of the ward’s land in 1998, and the petition to set aside these deeds was not filed until 2004, after the ward passed away, without question the petition to set aside the deeds fell outside of the statute of limitations; however, both the conservatorship and the subsequent land sales were correctly deemed invalid by the lower court because procedural requirements were not met, and thus the statute of limitations did not apply. Russell v. Allen (In re Allen), 962 So. 2d 737, 2007 Miss. App. LEXIS 519 (Miss. Ct. App. 2007).

In a suit to set aside a final decree confirming a sale of land by a special commissioner for division of proceeds in a partition suit, the trial court erred in sustaining both a special demurrer raising the affirmative defenses of limitations of actions, laches and bona fide purchaser for value, and a motion to dismiss raising the affirmative defenses of res judicata, laches and estoppel, where none of the facts upon which the special demurrer and motion to dismiss could dependably rest had been averred in the complaint. Complainants’ affirmative allegations that one or more of them had been in possession since the sale and that none of them had accepted the proceeds of the partition sale also raised a question of fact to be determined upon proof. Mosby v. Gandy, 375 So. 2d 1024, 1979 Miss. LEXIS 2470 (Miss. 1979).

In a suit by a devisee to remove and cancel clouds on her title to an undivided 1-2 interest in minerals in land which was sold at an execution sale, the 2-year statute of limitations on actions to recover property sold by order of the chancery court was inapplicable since “order of the chancery court” contemplates an order entered after compliance with Code 1972, §91-7-195, providing that a petition may be filed with the court by creditors of a decedent having registered claims against an estate for sale of land or personal property of the decedent for the payment of debts, and Code 1972, §91-7-197, providing that all interested parties shall be cited by summons or publication specifying the time and place of the hearing on the petition. Simmons v. Abney, 292 So. 2d 168, 1974 Miss. LEXIS 1762 (Miss. 1974).

This section [Code 1942, § 745] barred an attack on the validity of a 1942 sale of interest of minors in certain land which sale was made by a special commissioner of the chancery court pursuant to that court’s decree. Conner v. Conner, 238 Miss. 471, 119 So. 2d 240, 1960 Miss. LEXIS 430 (Miss. 1960).

This section [Code 1942, § 745] as it read in 1909 was inapplicable to partition proceedings. Hollingsworth v. Central Oil Co., 236 Miss. 779, 112 So. 2d 518, 1959 Miss. LEXIS 376 (Miss. 1959).

Where an attempted foreclosure of a vendor’s lien was void as to the owners of recorded mineral deeds, who were not made parties to the proceedings, this section [Code 1942, § 745] did not preclude such owners from attacking the foreclosure sale. Anderson v. Boyd, 229 Miss. 596, 91 So. 2d 537, 1956 Miss. LEXIS 642 (Miss. 1956).

Two-year statute of limitations for recovery of property sold by order of court does not apply, unless purchase money was paid and sale was made in good faith. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

This section [Code 1942, § 745] does not apply to a suit to cancel as a cloud defendant’s title, acquired through a sale under a decree in partition proceedings. The ten years’ statute applies. Foster v. Gulf Coast Canning Co., 71 Miss. 624, 15 So. 931, 1893 Miss. LEXIS 131 (Miss. 1893).

2. Defects subject to limitation.

Possession of land sold at guardian’s sale, which was made in good faith, having been taken more than two years prior to institution of suit attacking validity of the sale, it was too late to complain even if there had been irregularities in the sale. Jones v. Crawford, 201 Miss. 791, 30 So. 2d 513, 1947 Miss. LEXIS 448 (Miss. 1947).

This section [Code 1942, § 745] has no application to land erroneously described in the decree of sale. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716, 1941 Miss. LEXIS 68 (Miss. 1941).

Where chancellor had jurisdiction of minor heirs and subject-matter in administratrix’ petition for leave to sell, any defects in process and insufficiency of time held not to prevent application of two years’ limitations. Neely v. Craig, 162 Miss. 712, 139 So. 835, 1932 Miss. LEXIS 147 (Miss. 1932).

Where court having full constitutional jurisdiction has acted under procedure adjudged sufficient, and parties have been served with notice and have failed to act within period prescribed, court’s judgment cannot be collaterally attacked. Neely v. Craig, 162 Miss. 712, 139 So. 835, 1932 Miss. LEXIS 147 (Miss. 1932).

Commissioner’s sale to grandfather who was next friend of plaintiff, in partition suit, who paid the then reasonable value of the land, not void but voidable at plaintiff’s election within the time allowed. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

This section [Code 1942, § 745] is inapplicable where chancery court without jurisdiction to make order of sale. Moores v. Flurry, 87 Miss. 707, 40 So. 226, 1905 Miss. LEXIS 190 (Miss. 1905).

The section [Code 1942, § 745] applies as well to sales made in disregard of the Constitution as to those in violation of statutes. Bradley v. Villere, 66 Miss. 399, 6 So. 208, 1889 Miss. LEXIS 114 (Miss. 1889).

This section [Code 1942, § 745] is applicable in case the court were without jurisdiction to appoint the guardian who made the sale. Hall v. Wells, 54 Miss. 289, 1877 Miss. LEXIS 1 (Miss. 1877); Jeffries v. Dowdle, 61 Miss. 504, 1884 Miss. LEXIS 121 (Miss. 1884).

This section [Code 1942, § 745] applies even if notice were not given to the parties defendant. Summers v. Brady, 56 Miss. 10, 1878 Miss. LEXIS 33 (Miss. 1878).

The section [Code 1942, § 745] was meant to cure all defects, no matter from what cause, whether before or after decree, unless suit for the land be brought within the prescribed time. Morgan v. Hazlehurst Lodge, 53 Miss. 665, 1876 Miss. LEXIS 132 (Miss. 1876).

This section [Code 1942, § 745] applies to invalidities which have crept into sales made in good faith, where the purchase-money has been paid. Richardson v. Brooks, 52 Miss. 118, 1876 Miss. LEXIS 176 (Miss. 1876).

3. Good faith.

Suit to set aside sales by a guardian in good faith under authority of the court is barred by running of statutory period since the ward’s majority. Floyd v. Floyd, 239 Miss. 69, 121 So. 2d 133, 1960 Miss. LEXIS 268 (Miss. 1960).

In the absence of an allegation and proof that the sale was not in good faith, good faith would be presumed. Hollingsworth v. Central Oil Co., 236 Miss. 779, 112 So. 2d 518, 1959 Miss. LEXIS 376 (Miss. 1959).

Where a purchaser is not one in good faith, this section [Code 1942, § 745] is not applicable. Box v. House, 212 Miss. 154, 54 So. 2d 218, 1951 Miss. LEXIS 437 (Miss. 1951).

Where sale of land to pay debts is shown to have been made under a solemn decree of chancery court, with proper notice and appearance by all parties in interest, and that decree of confirmation was unappealed from, the presumption is that chancery court had acted in good faith in ordering the sale and that administratrix was guilty of no bad faith in conducting the sale and conveying the property to the purchaser, the court necessarily adjudicating that the property had brought a fair price in confirming the sale. Gill v. Johnson, 206 Miss. 707, 40 So. 2d 600, 1949 Miss. LEXIS 295 (Miss. 1949).

This section [Code 1942, § 745] only applies where the purchase is in good faith, and the burden of proof of good faith is on the purchaser. Shannon v. Summers, 86 Miss. 619, 38 So. 345, 1905 Miss. LEXIS 41 (Miss. 1905); Jeffries v. Dowdle, 61 Miss. 504, 1884 Miss. LEXIS 121 (Miss. 1884).

4. —Subsequent purchasers.

Where throughout the proceeding of an administrator’s action to sell real estate for payment of a decedent’s debts, including the decree of sale and commissioner’s deed, one acre of the three acres of land owned by decedent at her death was erroneously described, this section [Code 1942, § 745] would not protect a bona fide purchaser of the land as to such misdescribed acre of land, notwithstanding that the sale was in good faith and the purchase money paid and that the purchaser was in possession for more than two years. Cusimano v. Spencer, 194 Miss. 509, 13 So. 2d 27, 1943 Miss. LEXIS 90 (Miss. 1943).

This section [Code 1942, § 745] cannot be invoked by subsequent vendees as innocent purchasers for value, where the original purchaser did not act in good faith and it was manifest from the record of the proceedings that the sale was made in disregard of the constitution applicable thereto. Shannon v. Summers, 86 Miss. 619, 38 So. 345, 1905 Miss. LEXIS 41 (Miss. 1905).

Where the proceedings are regular on the record, even if the sale were not in good faith, yet if the land has passed to a bona fide purchaser, he acquires title independently of the section. [Code 1942, § 745]. Sanders v. Sorrell, 65 Miss. 288, 3 So. 661, 1887 Miss. LEXIS 56 (Miss. 1887).

The good faith of a purchaser from a purchaser has nothing whatever to do with the application of the statute. Jeffries v. Dowdle, 61 Miss. 504, 1884 Miss. LEXIS 121 (Miss. 1884).

5. Purchase price, payment of.

Where throughout the proceedings of an administrator’s action to sell real estate to pay decedent’s debts, including decree of sale and commissioner’s deed, one acre of the three acres of land sold was erroneously described, this section [Code 1942, § 745] would not protect a bona fide purchaser of the land as to such misdescribed acre, notwithstanding that the sale was in good faith, that the purchase money was paid and that the purchaser was in possession for more than two years. Cusimano v. Spencer, 194 Miss. 509, 13 So. 2d 27, 1943 Miss. LEXIS 90 (Miss. 1943).

Where the holder of a trust deed acquired the property at foreclosure sale upon his compliance with his bid by paying the back taxes and crediting the debt with the balance of his bid, such payment and credits were a payment of consideration, under the statute [Code 1930, § 2315]. Hubbard v. Massey, 192 Miss. 95, 4 So. 2d 230, 4 So. 2d 494, 1941 Miss. LEXIS 3 (Miss. 1941).

Payment of agreed cash price and deeding of agreed quantity of land, as price of other land purchased in good faith, held “payment of purchase price” within statute [Code 1942, § 745]. Neely v. Craig, 162 Miss. 712, 139 So. 835, 1932 Miss. LEXIS 147 (Miss. 1932).

Chancery court’s power of providing for payment in part of debts in commodities or land, where minors’ interests are involved, ought to be exercised with great caution. Neely v. Craig, 162 Miss. 712, 139 So. 835, 1932 Miss. LEXIS 147 (Miss. 1932).

Creditor purchasing at judicial sale may make payment within meaning of limitations statute by applying debt due him in payment of bid. Pennington v. Purcell, 155 Miss. 554, 125 So. 79, 1929 Miss. LEXIS 339 (Miss. 1929).

A purchaser under a decree of the chancery court cannot defend under this section [Code 1942, § 745] unless he has made actual payment of the purchase money, and a subterfuge or sham payment will not aid him. Gibson v. Currier, 83 Miss. 234, 35 So. 315, 1903 Miss. LEXIS 38 (Miss. 1903).

A purchaser at execution sale who has not paid the entire purchase money, but has been credited with a part of it on an individual debt due him from the executor, cannot invoke this section [Code 1942, § 745]. Sharpley v. Plant, 79 Miss. 175, 28 So. 799, 1901 Miss. LEXIS 3 (Miss. 1901).

6. Persons affected.

Ejectment suit by devisees under will was barred by this section [Code 1942, § 745] where, more than two years prior thereto, real estate of testator was sold by decree of chancery court to pay debts in absence of sufficient personalty therefor, at which time sale was duly confirmed, the purchaser went into the actual possession of the property after having paid the purchase money and received a deed therefor. Gill v. Johnson, 206 Miss. 707, 40 So. 2d 600, 1949 Miss. LEXIS 295 (Miss. 1949).

The fact that the widow and adopted daughter of an intestate were not parties to a proceeding against the administratrix to foreclose a deed of trust on realty constituting a part of the estate, did not save them from the bar of the statute, since they were not necessary parties where the estate had been declared insolvent, the realty was in the possession of the administratrix, who was also the widow of the decedent but was made a party only as administratrix, and the daughter advised her regarding the foreclosure matters. Hubbard v. Massey, 192 Miss. 95, 4 So. 2d 230, 4 So. 2d 494, 1941 Miss. LEXIS 3 (Miss. 1941).

Bar set up by statute against action to recover property sold by chancery court’s order applies only against parties to record or their privies. Pennington v. Purcell, 155 Miss. 554, 125 So. 79, 1929 Miss. LEXIS 339 (Miss. 1929).

Statute limiting the time for recovery of land sold under chancery order inapplicable to attack by infant, because of bad faith of next friend, of sale for partition. Smith v. Strickland, 139 Miss. 1, 103 So. 782, 1925 Miss. LEXIS 117 (Miss. 1925).

Limitations do not run against remaindermen while life tenant lives; this section [Code 1942, § 745] inapplicable to suit by remaindermen to cancel deed and recover land sold under erroneous order of court. Clark v. Foster, 110 Miss. 543, 70 So. 583, 1915 Miss. LEXIS 68 (Miss. 1915).

Chancery court was without jurisdiction to order sale of real estate at suit of life tenant against infant remaindermen, and statute of limitations did not commence to run against action of ejectment by remaindermen until termination of the life estate. Hoskins v. Ames, 78 Miss. 986, 29 So. 828, 1901 Miss. LEXIS 144 (Miss. 1901).

This section [Code 1942, § 745] does not debar a minor interested in lands sold in partition proceedings from filing a bill of review at any time within two years after coming of age, since it does not apply to such proceedings. Martin v. Gilleyler, 70 Miss. 324, 12 So. 254 (Miss. 1892).

7. Rights and interests affected.

Two-year statute cannot be invoked by purchaser at commissioner’s sale and at execution sale to bar right to foreclose paramount lien. Pennington v. Purcell, 155 Miss. 554, 125 So. 79, 1929 Miss. LEXIS 339 (Miss. 1929).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Judicial Sales § 134.

CJS.

50A C.J.S., Judicial Sales §§ 80-86.

54 C.J.S., Limitations of Actions §§ 57, 60, 61, 66.

Cross References —

Jurisdiction of chancery court over estates, see §9-5-83.

JUDICIAL DECISIONS

1. In general.

2. Existence of trust.

3. Express trust.

4. Implied and constructive trusts.

5. Other cases of equitable cognizance.

1. In general.

Beneficiaries’ action was not purely and exclusively equitable and they sought no equitable relief and did not seek to impose a constructive trust; the beneficiaries sought purely legal relief, namely compensatory and punitive money damages, such that the cause of action and the remedy of the case were not purely and exclusively equitable and the chancellor did not err in applying the general six-year statute of limitations of Miss. Code Ann. §15-1-49. Winters v. AmSouth Bank, 964 So. 2d 595, 2007 Miss. App. LEXIS 582 (Miss. Ct. App. 2007).

Trial court could limit evidence of alleged wrongdoing on part of fiduciary to acts occurring less than ten years prior to date suit was filed, which was applicable statute of limitations period. Wholey v. Cal-Maine Foods, 700 So. 2d 291, 1997 Miss. LEXIS 300 (Miss. 1997).

The 10-year limitation of §15-1-39 is applicable to both express and implied trusts. However, the application of §15-1-39 is limited in that the cause of action and the remedy of the case must be purely and exclusively equitable or the general 6-year statute of limitations will be applied. Wholey v. Cal-Maine Foods, Inc., 530 So. 2d 136, 1988 Miss. LEXIS 356 (Miss. 1988).

In an action seeking to compel a perfect inventory, void certain conveyances, partition property, and establish a claim against an estate, the chancellor improperly sustained a plea of the statute of limitations §15-1-39 as to a trust, where there was no proof to support the same. Maxwell v. Yuncker, 419 So. 2d 580, 1982 Miss. LEXIS 2165 (Miss. 1982).

Whatever may be the rule elsewhere, it is settled in this state that no statute of limitations runs against a legatee or distributee pending the administration of the estate. Peebles v. Acker, 70 Miss. 356, 12 So. 248, 1892 Miss. LEXIS 110 (Miss. 1892).

2. Existence of trust.

The delivery by a donor to a bank in trust of certain promissory notes secured by mortgage notwithstanding the bank’s incapacity to act as trustee, and the subsequent assumption by the donor of the note and actions in connection therewith for the benefit of the beneficiary constituted a trust in regard to the notes and their intended security not cognizable by the courts of common law within the purview of the ten-year statute of limitations, so that an action brought within ten years against the donor’s executors for loss of such notes by his unauthorized act was not barred. Yandell v. Wilson, 182 Miss. 867, 183 So. 382, 1938 Miss. LEXIS 202 (Miss. 1938).

Bequest providing that devisees should deliver to widow annually 1 bale of cotton, was not a trust within this section [Code 1942, § 746], since the implied promise to deliver such cotton constituted a contract, and suit for breach must be brought within 6 years. Roberts v. Burwell, 117 Miss. 451, 78 So. 357, 1918 Miss. LEXIS 190 (Miss. 1918).

Since a vendor could have brought an action at law for the purchase money, his action to enforce his lien did not rest upon the existence of a trust not cognizable by the courts of the common law, and, accordingly, this section [Code 1942, § 746] was not applicable. Washington v. Soria, 73 Miss. 665, 19 So. 485, 1896 Miss. LEXIS 190 (Miss. 1896).

3. Express trust.

Where a deceased legal guardian of her son who is non compos mentis used the proceeds from sale of property of the ward, to purchase land in her own name, this did not create an express trust in favor of her ward and a suit commenced more than thirty-one years after the purchase, that being the time when the cause of action arose, was barred by the statute of limitations. Sullivan v. Nobles, 211 Miss. 330, 51 So. 2d 736, 1951 Miss. LEXIS 360 (Miss. 1951).

Where it appeared that on the death of one partner, the surviving partner agreed to hold the shares of two of the decedent’s heirs as an active trust for their benefit until demand was made by them for payment of the principal, that all of the parties to the agreement had died and the estate of the surviving partner had been administered, with due notice given to creditors, a bill by the heirs of the heirs of the first deceased partner, seeking a money decree from the administratrix and beneficiaries of the surviving partner more than twenty-one years after the making of the agreement and more than ten years after the death of the beneficiaries, was barred by this statutory limitation. Whitaker v. Davenport, 193 Miss. 523, 10 So. 2d 202, 1942 Miss. LEXIS 135 (Miss. 1942).

Where the purpose of a trust agreement was to meet the needs of the beneficiaries during their lives, the object expired upon their deaths, thereby maturing the obligation, and setting the statute of limitations running without any repudiation on the part of the trustee. Whitaker v. Davenport, 193 Miss. 523, 10 So. 2d 202, 1942 Miss. LEXIS 135 (Miss. 1942).

A ill which expressly charges the estate with the payment of debts, and empowers the executor to sell the whole or any part of the estate for payment of such debts, creates in equity an express trust, covered by the provisions of this section. [Code 1880 § 2696]. Abbay v. Hill, 64 Miss. 340, 1 So. 484, 1886 Miss. LEXIS 70 (Miss. 1886).

The section [Code 1880, § 2696] does not run until there be a cause of action. Hence, it does not run in cases of express trust which are subsisting and acknowledged. Cooper v. Cooper, 61 Miss. 676, 1884 Miss. LEXIS 152 (Miss. 1884).

A legacy which is made by the will an express charge on real estate devised constitutes an express trust, cognizable only in equity as to enforceability against the realty, and is, therefore, subject to this section. Templeton v. Tompkins, 45 Miss. 424, 1871 Miss. LEXIS 91 (Miss. 1871).

4. Implied and constructive trusts.

Siblings’ claim seeking an adjudication of their ownership of property as beneficiaries of a constructive trust was barred because the siblings waited nearly twenty years to file their action; all of the parties to the deed in question were no longer able to express and/or take action to clarify the nature of the instrument which appeared nowhere else in writing and of record in the land deeds. Manning v. Perry, 242 So.3d 972, 2017 Miss. App. LEXIS 626 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 71, 2018 Miss. LEXIS 226 (Miss. 2018).

In an action by a widow to recover 50 percent of various mineral rights purchased by her deceased husband in a joint venture with defendant’s deceased husband in which the theory of recovery was an implied trust or right to a partnership accounting, the chancery court erroneously granted judgment for plaintiff, where the cause of action was barred by the applicable ten year statutes of limitation at least as early as 1962, which was 10 years after the death of defendant’s husband. Stebbins v. Hayes, 379 So. 2d 898, 1980 Miss. LEXIS 1836 (Miss. 1980).

A partition suit filed in 1967, and based upon the alleged existence of a trust arising in 1942 by implication of law, and in which there was no allegation or suggestion of fraud or concealment, the deeds evidencing the transactions having been placed upon the public records, was barred by the statute of limitations, the statute having begun to run upon the date in 1942 on which a right first accrued to have the trust judicially established. Calloway v. Showers, 231 So. 2d 797, 1970 Miss. LEXIS 1610 (Miss. 1970).

Any claim that an adminstratrix’ decedent, the heir to certain estate property, might have had to the acquisition of various properties by defendant coheirs which were acquired during the decedent’s minority and for which no claim was filed more than 10 years after he reached his majority was clearly barred by the section [Code 1942, § 746] inasmuch as there was no fraud shown in the acquisition of such property or any wrongful concealment of the transaction. Barrett v. Turner, 229 So. 2d 563, 1969 Miss. LEXIS 1249 (Miss. 1969).

Where a father remained in possession of land, which he had conveyed by warranty deed to his son in 1937 allegedly as security for an indebtedness, and exercised complete dominion over the land until his death, and thereafter the father’s heirs retained possession of the land and dealt with it as part of the father’s estate until 1951, and the son recognized the equitable ownership of the heirs subject to his right of reimbursement for the loans made to the father until his refusal to divide with them money received from the oil, gas and mineral leases which he executed in 1955, an action by the heirs in 1956 against the son to establish a resulting trust for the benefit of the heirs was not barred by this section. Trigg v. Trigg, 233 Miss. 84, 101 So. 2d 507, 1958 Miss. LEXIS 360 (Miss. 1958).

The repudiation of an implied or constructive trust is not necessary to set the statute of limitations in operation, but the statute begins to run from the time the act or acts were committed by which the actor became chargeable. Thames v. Holcomb, 230 Miss. 387, 92 So. 2d 548, 1957 Miss. LEXIS 381 (Miss. 1957).

Since a grantee, who had promised to reconvey to other heirs their interest in realty if they would convey the property to him in order that he could obtain a loan thereon, was under a duty to reconvey the property upon the date of obtaining the loan, the cause of action of the heirs, who were all adults, on the implied or constructive trust accrued on that date, so that an action brought thereon more than 20 years thereafter was barred. Thames v. Holcomb, 230 Miss. 387, 92 So. 2d 548, 1957 Miss. LEXIS 381 (Miss. 1957).

Where the purchaser of property buys it with the money of another, the trust thereby created in favor of the party whose money is thus used is an implied, resulting or constructive trust, and not an express trust, and is subject to the statute of limitations. Sullivan v. Nobles, 211 Miss. 330, 51 So. 2d 736, 1951 Miss. LEXIS 360 (Miss. 1951).

No repudiation of an implied or constructive trust is necessary to set the statute of limitations in operation, the statute, in the absence of fraud and concealment, running from the time when the act was done by which the party became chargeable as trustee by implication, which is to say, from the time when the cestui que trust could have enforced his right by suit. Rimmer v. Austin, 191 Miss. 664, 4 So. 2d 224, 1941 Miss. LEXIS 179 (Miss. 1941).

Limitation in case of “trust” applicable to express and implied trusts. Hook v. Bank of Leland, 134 Miss. 185, 98 So. 594, 1924 Miss. LEXIS 253 (Miss. 1924).

Limitation in case involving trust applicable to action by ward’s heir to cancel certificate of ward’s stock to third party. Hook v. Bank of Leland, 134 Miss. 185, 98 So. 594, 1924 Miss. LEXIS 253 (Miss. 1924).

Ten-year statute applies to suits to enforce implied trusts. Robinson v. Strauther, 106 Miss. 754, 64 So. 724, 1914 Miss. LEXIS 17 (Miss. 1914).

Suit attacking foreclosure proceedings was barred where purchaser had taken the land under adverse claim of right thereto and had continuously claimed it for more than ten years, whether complaint should be viewed as a bill of review, as a suit in equity for land, or as a bill to enforce an implied trust. Alabama & V. R. Co. v. Thomas, 86 Miss. 27, 38 So. 770, 1905 Miss. LEXIS 81 (Miss. 1905).

A defendant who, having received money from a testator in his lifetime to invest for his benefit, invested it in lands for his own benefit holds it as constructive trustee for legatees to whom the right was bequeathed, and a suit to enforce the trust will not be barred until the limitation prescribed by this section [Code 1942, § 746] shall have expired. Patton v. Pinkston, 86 Miss. 651, 38 So. 500, 1905 Miss. LEXIS 53 (Miss. 1905).

5. Other cases of equitable cognizance.

Chancellor properly held that the statute of limitations, Miss. Code Ann. §15-1-39 (Rev. 2012), barred the children’s action regarding the legality of a modification to a trust agreement where the limitations period began to run when the modification was filed as a public record, and that modification was filed more than 10 years prior to the instant action. Domino v. Braswell, 165 So.3d 530, 2015 Miss. App. LEXIS 266 (Miss. Ct. App. 2015).

This section [Code 1942, § 746] does not apply in a suit by a cotenant to remove as a cloud on title the claims of a cotenant who purchased at a tax sale. Smith v. Smith, 211 Miss. 481, 52 So. 2d 1, 1951 Miss. LEXIS 379 (Miss. 1951).

Action to cancel assignment of insurance policy, being one of exclusive equitable cognizance, must be brought within 10 years after action accrues. Garner v. Townes, 134 Miss. 791, 100 So. 20, 1924 Miss. LEXIS 328 (Miss. 1924).

RESEARCH REFERENCES

ALR.

When statute of limitations starts to run against enforcement of constructive trust. 55 A.L.R.2d 220.

CJS.

54 C.J.S., Limitations of Actions §§ 97, 98, 200 et seq.

Law Reviews.

1979 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 887, December 1979.

1989 Mississippi Supreme Court Review: Torts. 59 Miss. L. J. 939, Winter, 1989.

Editor’s Notes —

Laws of 1972, ch. 350 referred to in this section was former §15-1-41, which provided for a limitation period of (10) ten years rather than the present (6) six years for the actions contemplated in the section. The last sentence of the first paragraph of present §15-1-41 did not appear in the Chapter 350 version, and that chapter’s last paragraph read “The provisions of this section shall apply to causes of action accruing prior to June 1, 1972, but shall not revive any cause of action barred under existing law as of that date.”

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

3. Applicability.

1. In general.

Six-year limitation of Miss. Code Ann. §15-1-41 is not affected by the date of accrual, and by extension not tolled by Miss. Code Ann. §15-1-67; therefore, summary judgment was properly granted to a builder and a manufacturer in a property damage case arising from leaky roofs on chicken houses where a lawsuit was not filed until 2004, despite the fact that the leaks began shortly after completion in 1995 or 1996. Windham v. Latco of Miss., Inc., 972 So. 2d 652, 2007 Miss. App. LEXIS 49 (Miss. Ct. App. 2007), rev'd, 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Concealment statute does not affect the statute of repose as the statute of repose operates independently of causes of action and by its nature bars hidden claims and accruals of causes of action are irrelevant to its operation. Estes v. Bradley, 954 So. 2d 455, 2006 Miss. App. LEXIS 912 (Miss. Ct. App. 2006), overruled in part, Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Installation of a new roof is clearly an “improvement to real property” under Miss. Code Ann. §15-1-41; therefore, summary judgment was properly granted to defendant builders because the plaintiff owner’s argument that a roof was a mere repair was without merit. Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 2005 Miss. LEXIS 517 (Miss. 2005).

Homeowners’ claim for flood damages allegedly caused by contractor’s negligent construction and county’s negligent inspection of their home were barred by Miss. Code Ann. §§15-1-41 and14-1-49(1) because their action accrued when they first occupied the home and when they first asked the county to remedy the drainage problems. Baldwin v. Holliman, 913 So. 2d 400, 2005 Miss. App. LEXIS 297 (Miss. Ct. App. 2005), overruled in part, Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Purpose of statute of repose for actions to recover damages for injuries arising out of any deficiency in construction of improvement to real property is to provide repose protection to parties such as architects, contractors, and engineers who are engaged in construction business. McIntyre v. Farrel Corp., 680 So. 2d 858, 1996 Miss. LEXIS 518 (Miss. 1996).

The term “accruing” in §15-1-41 means the date marking the action which begins the period of prescription. Rector v. Mississippi State Highway Comm'n, 623 So. 2d 975, 1993 Miss. LEXIS 311 (Miss. 1993).

The amended 6-year version of §15-1-41 did not bar all actions based on injuries occurring after January 1, 1986, if acceptance of the work occurred prior to January 1, 1980, which would have eliminated the then existing exposure for work accepted between January 1, 1976 and December 31, 1979. Rector v. Mississippi State Highway Comm'n, 623 So. 2d 975, 1993 Miss. LEXIS 311 (Miss. 1993).

Contention that, even if §15-1-41 supported summary judgment, it supported only partial summary judgment because section does not apply to all of party’s claims, lacked merit, as express language of section states that “no action” may be brought more than 6 years after occupancy of building which houses defective product. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

Section 15-1-41 is much broader than most statutes of repose. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

Occupancy or acceptance of the building or improvement made thereon is required as the beginning point for the tolling of the statute of limitations set forth in §15-1-41. McMichael v. Nu-Way Steel & Supply, Inc., 563 So. 2d 1371, 1990 Miss. LEXIS 268 (Miss. 1990).

Since §15-1-41 does not define words “improvement to real property,” they must be given their ordinary meaning, which is permanent addition that increases value of property and makes it more useful; suit by employee injured while attempting to climb down caged ladder was barred by 10-year statute of limitations, where ladder was integral part of building, providing means of moving from one level to another, was permanently affixed, and added value to refinery, and therefore was improvement to real property. Collins v. Trinity Industries, Inc., 861 F.2d 1364, 1988 U.S. App. LEXIS 17210 (5th Cir. Miss. 1988).

2. Constitutionality.

Section 15-1-41, which limits the time within which an action may be brought to recover damages for injuries arising from the design or construction of an “improvement to real property,” does not violate the constitutional guarantee of equal protection, even though it does not apply to actions for wrongful death but applies to all other actions for damages caused by negligent construction. Phipps v. Irby Constr. Co., 636 So. 2d 353, 1993 Miss. LEXIS 418 (Miss. 1993).

It is not unconstitutional to allow wrongful death plaintiffs a better statute of limitations than that applied to personal injury plaintiffs under §15-1-41. Fluor Corp. v. Cook, 551 So. 2d 897, 1989 Miss. LEXIS 463 (Miss. 1989).

Section 15-1-41 does not violate the equal protection clause of the Fourteenth Amendment on the basis that it limits actions against architects and contractors but excludes similarly situated persons such as owners and suppliers. Reich v. Jesco, Inc., 526 So. 2d 550, 1988 Miss. LEXIS 307 (Miss. 1988).

The ten-year limitation contained in §15-1-41 does not violate either Article 3, § 24 or Article 4, § 87 of the Mississippi Constitution. Anderson v. Fred Wagner & Roy Anderson, Jr., Inc., 402 So. 2d 320, 1981 Miss. LEXIS 2052 (Miss. 1981).

3. Applicability.

In a suit brought by appellants against appellees for damages to appellants’ property based on fraudulent concealment of a gully on the property, which began forming sinkholes as a result of the fill material beginning to decay and causing damage to the property, fraudulent concealment was not properly pled and the statute of repose was not tolled because appellees’ act of filling the gully with the material which had been previously taken out of the land was done at the request of the original property owners; there was no subsequent act made in an effort by appellees to conceal any purported wrongdoing; and there was no evidence showing that appellees attempted to mask their actions or prevent discovery of their actions. Aydin v. Daniels, 179 So.3d 1171, 2015 Miss. App. LEXIS 296 (Miss. Ct. App.), cert. denied, 179 So.3d 1137, 2015 Miss. LEXIS 622 (Miss. 2015).

In a suit brought by appellants against appellees for damages to appellants’ property based on fraudulent concealment of a gully on the property, which began forming sinkholes as a result of the fill material beginning to decay and causing damage to the property, fraudulent concealment was not properly pled and the statute of repose was not tolled because appellees’ act of filling the gully with the material which had been previously taken out of the land was done at the request of the original property owners; there was no subsequent act made in an effort by appellees to conceal any purported wrongdoing; and there was no evidence showing that appellees attempted to mask their actions or prevent discovery of their actions. Aydin v. Daniels, 179 So.3d 1171, 2015 Miss. App. LEXIS 296 (Miss. Ct. App.), cert. denied, 179 So.3d 1137, 2015 Miss. LEXIS 622 (Miss. 2015).

Claim by homeowners against a builder under the New Home Warranty Act (NHWA), Miss. Code Ann. §83-58-1 et seq., was not subject to Miss. Code Ann. §15-1-5 because the NHWA limitations period applied over the more general period in Miss. Code Ann. §15-1-41. Townes v. Rusty Ellis Builder, Inc., 98 So.3d 1046, 2012 Miss. LEXIS 483 (Miss. 2012).

When homeowners and a builder entered into an agreement purportedly tolling limitations periods applicable to the homeowners’ claims against the builder for structural defects in the homeowners’ home, the homeowners’ common-law claims were time-barred because (1) the claims fell under Miss. Code Ann. §15-1-41’s statute of repose, and (2) Miss. Code Ann. §15-1-5 barred contracts to change a limitations period. Townes v. Rusty Ellis Builder, Inc., 98 So.3d 1046, 2012 Miss. LEXIS 483 (Miss. 2012).

Based on a review of the language of the statute, as well as the direction given by the state supreme court, the statute of repose did not commence until the builder was no longer in possession of the house. The builder sold the home to the homeowners on February 17, 1997, within six years of the filing of the complaint on February 12, 2003; therefore, the homeowners’ claims were not barred by the six-year statute of repose found in Miss. Code Ann. §15-1-41. J. Criss Builder, Inc. v. White, 35 So.3d 541, 2009 Miss. App. LEXIS 698 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 266 (Miss. 2010).

In the homeowners’ suit for water damage, the Supreme Court of Mississippi held that a windows manufacturer was not covered by the six-year statute of repose set forth at Miss. Code Ann. §15-1-41 as an entity which designed or planned the construction of an improvement to real property. The evidence did not show that the windows manufacturer either supplied windows designed specifically for the homeowners’ home or furnished specific instructions for the installation of the windows into the homeowners’ home. Winkel v. Windsor Windows & Doors, 983 So. 2d 1055, 2008 Miss. LEXIS 304 (Miss. 2008).

Trial court erred in granting summary judgment to a manufacturer of poultry houses and a general contractor, in a suit brought by farmers, because, under either an equitable-estoppel theory or the fraudulent-concealment exception of Miss. Code Ann. §15-1-67, the application of Miss. Code Ann. §15-1-41 could be barred. Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Miss. Code Ann. §15-1-41 is not barred if fraudulent concealment is known, or with due diligence could have been discovered, within a six-year repose period. This holding balances the denial of repose protection to architects, contractors, and engineers who engage in fraudulent concealment, while requiring plaintiffs to exercise due diligence in pursuing their causes of action. Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Trial court erred in dismissing the homeowners’ claims that the original owners knew of the alleged defects in a home at the time they sold it to the subsequent owners based on the statute of repose as the claim was for misrepresentation as to the home’s condition, not for any defective design, and thus the statute of repose did not apply. Estes v. Bradley, 954 So. 2d 455, 2006 Miss. App. LEXIS 912 (Miss. Ct. App. 2006), overruled in part, Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Summary judgment was properly granted to defendant builders in a case involving a dispute over a roof because the action was untimely under Miss. Code Ann. §15-1-41; §15-1-41 applied to suits by owners against builders. Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 2005 Miss. LEXIS 517 (Miss. 2005).

Engineer was entitled to dismissal of landowners’ claims for damages allegedly sustained as a result of the engineer’s negligence in designing a bridge and a road more than six years earlier because these claims were subject to and barred by the statute of repose set forth in Miss. Code Ann. §15-1-41. Scheinblum v. Lauderdale County Bd. of Supervisors, 350 F. Supp. 2d 743, 2004 U.S. Dist. LEXIS 26321 (S.D. Miss. 2004).

County board of supervisors and engineers were not entitled to dismissal of landowners’ claims for damages allegedly sustained as a result of the board’s and engineers’ negligence more than six years earlier in reviewing and approving the subdivision map for a subdivision that flooded, on the ground that the claims were barred by the statute of repose set forth in Miss. Code Ann. §15-1-41, because a subdivision map did not constitute an improvement to real property and, thus, these functions were not covered by the statute of repose. Scheinblum v. Lauderdale County Bd. of Supervisors, 350 F. Supp. 2d 743, 2004 U.S. Dist. LEXIS 26321 (S.D. Miss. 2004).

The statute governs a situation in which a surety takes over a construction contract, and the owner sues the surety/contractor for damages arising from construction deficiencies. Cooper Indus. v. Tarmac Roofing Sys., 276 F.3d 704, 2002 U.S. App. LEXIS 173 (5th Cir. Miss. 2002).

Miss. Code Ann. §15-1-49, rather than this section, applied to an action by a subcontractor against a sub-subcontractor for the latter’s failure to use American made parts as required by the general contract as the subcontractor sought contract damages for an alleged breach, rather than damages arising out of an injury to person or property. Air Comfort Sys., Inc. v. Honeywell, Inc., 760 So. 2d 43, 2000 Miss. App. LEXIS 235 (Miss. Ct. App. 2000).

Motorist struck by passenger train could not maintain negligence claim based on elevated nature of crossing, as crossing had been in existence for at least 29 years such that statute of repose barred any claim based on negligent design, and even if motorist could not see oncoming vehicular traffic, road had ample room for passing cars to cross tracks simultaneously such that elevated crossing did nothing to prevent motorist from seeing oncoming train. Woods v. Amtrak, 982 F. Supp. 409, 1997 U.S. Dist. LEXIS 16745 (N.D. Miss. 1997).

Large piece of industrial machinery may constitute “improvement to real property” within meaning of statute of repose for actions to recover damages for injuries arising out of any deficiency in construction of improvement to real property. McIntyre v. Farrel Corp., 680 So. 2d 858, 1996 Miss. LEXIS 518 (Miss. 1996).

Original equipment manufacturer is not entity that performs or furnishes design, planning, supervision of construction, or construction of improvement to real property within meaning of statute of repose for actions to recover damages for injuries arising out of any deficiency in construction of improvement to real property. McIntyre v. Farrel Corp., 680 So. 2d 858, 1996 Miss. LEXIS 518 (Miss. 1996).

For purposes of Mississippi statute of repose related to actions involving improvements to real property, original manufacturer of “calendar” used in tire making process was not entity that performed or furnished “design, planning, supervision of construction, or construction” of improvement to real property, and thus was not entitled to benefit of statute. McIntyre v. Farrell Corp., 97 F.3d 779, 1996 U.S. App. LEXIS 26533 (5th Cir. Miss. 1996).

The supplier of a tile floor on which the plaintiff slipped and fell was not necessarily protected from liability under §15-1-41 unless it provided the “design, planning, supervision of construction or construction” of the floor, since the plain language of §15-1-41 does not indicate an intent to protect all those who supplied an “improvement to real property.” Wolfe v. Dal-Tile Corp., 876 F. Supp. 116, 1995 U.S. Dist. LEXIS 7375 (S.D. Miss. 1995).

In an action for injuries to a plaintiff employee allegedly caused by the defendant’s negligent design and construction of a walkway at a paper mill sold by the defendant to the plaintiff’s employer, the 10-year statute of repose of former §15-1-41 applied, rather than the 6-year limitation of the 1985 amendment to §15-1-41, since the cause of action “accrued” when the employer accepted the mill from the defendant in 1984, not in 1992 when the plaintiff’s injury occurred. Stephens v. St. Regis Pulp & Paper Co., 863 F. Supp. 341, 1994 U.S. Dist. LEXIS 19294 (S.D. Miss. 1994).

By express language, §15-1-41 extends repose protection to any person furnishing design, planning, supervision of construction or construction of improvement to real property, including manufacturers who furnish design for improvements to real property; thus it protects company in instant case which designed and manufactured fire-proofing materials which contained asbestos, which materials were included in building owned by plaintiff, where plaintiff brought action to recover cost of asbestos abatement program. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

Fire-proofing materials, designed and manufactured by defendant, which contained asbestos, and which were incorporated and used in building constructed for plaintiff, constitute improvement to real property within customary meaning of such term; common definitions of term generally refer to permanent addition which increases value of property and makes it more useful, and there is little doubt that fire-proofing materials increased value of bank building and made it more useful. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

The 10-year statute of limitations for construction deficiencies set forth in §15-1-41 applied to an action brought by the owner of a chicken house against the designer and contractor arising from the collapse of the chicken house approximately 12 years after it was built even though the owner had no reason to believe that anything was wrong with the chicken house until the time of the collapse. Reich v. Jesco, Inc., 526 So. 2d 550, 1988 Miss. LEXIS 307 (Miss. 1988).

Heat exchanger unit fell within statutory language of “improvement to real property,” as part of petroleum refinery; although factual considerations may be involved in determining whether article of property is improvement to real property, such considerations did not constitute genuine issue of material fact to preclude summary judgment in this case. Smith v. Fluor Corp., 514 So. 2d 1227, 1987 Miss. LEXIS 2867 (Miss. 1987).

The ten-year limitation period of §15-1-41 does not apply to a builder/owner of premises in which a defective or unsafe condition is subsequently found, since the builder who is also the owner necessarily has equal access to control over the defective condition. West End Corp. v. Royals, 450 So. 2d 420, 1984 Miss. LEXIS 1697 (Miss. 1984).

A home builder’s potential exposure to a suit for negligence or breach of implied warranty in the construction of a home continues for 10 years under §15-1-41, since the removal of the requirement of privity between builder and purchaser to maintain a viable cause of action prevents that statute of limitations from being gratuitously shortened in the case of a first purchaser selling the home to a third party. Keyes v. Guy Bailey Homes, Inc., 439 So. 2d 670, 1983 Miss. LEXIS 2744 (Miss. 1983).

The ten year limitation provision of Miss Code §15-1-41 was applicable to a building owner’s action against an architect, a roofing subcontractor, roof deck subcontractors, and a general contractor for alleged negligence in the design and construction of the roof on plaintiff’s building. Deville Furniture Co. v. Jesco, Inc., 697 F.2d 609, 1983 U.S. App. LEXIS 30714 (5th Cir. Miss. 1983).

The ten-year limitation provision of Miss Code §15-1-41 was applicable to a building owner’s action against a general contractor, an architect, a roofing subcontractor and roof deck subcontractors alleging defendants negligently designed and constructed and used and supplied improper materials in the construction of a roof on plaintiff’s commercial premises. De Ville Furniture Co. v. Jesco, Inc., 423 So. 2d 1337, 1982 Miss. LEXIS 2400 (Miss. 1982).

RESEARCH REFERENCES

ALR.

What statute of limitation covers action for indemnity. 57 A.L.R.3d 833.

When statute of limitations commences to run against claim for contribution or indemnity based on tort. 57 A.L.R.3d 867.

What statute of limitations applies to action for contribution against joint tortfeasor. 57 A.L.R.3d 927.

Liability of wharf owner or operator for personal injuries to invitees or licensees resulting from condition of premises or operation of equipment. 34 A.L.R.4th 572.

Time of discovery as affecting running of statute of limitations in wrongful death action. 49 A.L.R.4th 972.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations. 88 A.L.R.4th 851.

Modern status of the application of “discovery rule” to postpone running of limitations against actions relating to breach of building and construction contracts. 33 A.L.R.5th 1.

What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations. 122 A.L.R.5th 1.

Am. Jur.

4 Am. Jur. Trials, Statutes of Limitation § 20.

Law Reviews.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss. L.J. 49, March, 1985.

Amendment Notes —

The 2010 amendment rewrote the section.

The 2011 amendment added the first sentence of the second paragraph; added (a)(vii); and substituted “enrollment of the existing judgment” for “enrollment of the original judgment” in the next-to-last sentence of the paragraph following the Notice.

Cross References —

Enrollment of judgments in civil cases, see §§11-7-189.

Collateral attack on decree in chancery, see §91-1-31.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Issuance of execution.

4. Garnishment.

5. Computation of limitation period.

6. Extension of judgment lien.

7. Laches.

1. In general.

Chancellor did not err in finding that a former wife’s claim to a prior monetary judgment against a former husband was not yet barred by the statute of limitations because at the time the wife filed her motion for citation for contempt and for modification of alimony, the statute of limitations had not yet expired on her ability to collect the prior judgment; the wife filed her motion within the applicable seven-year statute-of-limitations period and based it on the prior underlying judgment. Smith v. Smith, 203 So.3d 1150, 2016 Miss. App. LEXIS 737 (Miss. Ct. App. 2016).

Chancery court was within its discretion to order a full accounting and the statute of limitations did not apply when it appeared that the conservator’s records for the conservatorship were incomplete; a full accounting was necessary where the chancery court could not merely take the conservator at her word that the money was used for the ward’s benefit and ordered the conservator to show proof that the checks and other items were actually used for her ward; the conservator was unable to do so. Russell v. Allen (In re Allen), 962 So. 2d 737, 2007 Miss. App. LEXIS 519 (Miss. Ct. App. 2007).

Trial court’s 1994 order of dismissal without prejudice was not a judgment or decree and not subject to the seven-year statute of limitations under Miss. Code Ann. §15-1-43; instead subcontractor’s claims were subject to the three-year statute of limitations under Miss. Code Ann. §15-1-49, and were thus time-barred because they were not filed within three years after the date of the order of dismissal. Haycraft v. Mid-State Constr. Co., 915 So. 2d 1117, 2005 Miss. App. LEXIS 1000 (Miss. Ct. App. 2005).

The parties’ 1981 settlement agreement required the ex-husband to give to the ex-wife one-half of all future stock dividends and bonuses. The chancery court applied Miss. Code Ann. §15-1-43 (Rev. 1995) to limit the ex-wife’s recovery to only dividends, and other benefits to the seven years prior to the commencement of the contempt action. Nicholas v. Nicholas, 841 So. 2d 1208, 2003 Miss. App. LEXIS 287 (Miss. Ct. App. 2003).

In a child support matter, more than seven years had passed since the eldest child had become 21; therefore, his claim was barred by the statute of limitations, but the claim of his sister was still viable, and the father did not waive the defense by failing to raise it as an affirmative defense in the pleadings when no pleading was required and the defense of laches was inapplicable to the youngest child’s claims. Brown v. Brown, 822 So. 2d 1119, 2002 Miss. App. LEXIS 403 (Miss. Ct. App. 2002).

The seven year statute of limitations contained in the statute does not apply to child support payments. Glass v. Glass, 726 So. 2d 1281, 1998 Miss. App. LEXIS 1109 (Miss. Ct. App. 1998).

Statute of limitations, applicable to contempt action brought by divorced parent to enforce past due child support, is savings clause in favor of persons under disabilities (§15-1-59), not 7 year statute of limitations (§15-1-43), so long as child is minor. Wilson v. Wilson, 464 So. 2d 496, 1985 Miss. LEXIS 1914 (Miss. 1985).

In an action by a debtor against a bank to cancel the principal and interest in a promissory note and a deed of trust securing the note, the trial court properly considered a defunct judgment which had been obtained by the bank against the debtor and her husband in determining the debtor’s liability to the bank where the defunct judgment was a sufficient basis to form the consideration for a component part of a new obligation entered into by the debtor; however, the trial court erred in computing the amount of consideration to include interest on the principal of the judgment debt beyond the seven years after the rendition of the judgment as provided in §15-1-43. Under the provisions of §75-17-7 interest should have been charged at the rate of eight percent per year for seven years to determine the amount of the former legal obligation where the note leading to the earlier judgment had provided for interest of eight percent per year. Keller v. Citizens Bank, Columbia, Miss., 399 So. 2d 1332, 1981 Miss. LEXIS 2008 (Miss. 1981).

This statute [Code 1942, § 733] operates to limit the time to sue for past-due installments of alimony. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

Judgment lien of United States obtained in proceeding in Federal district court is subject, under applicable Federal statutes, to state statutes (§§ 733, 735, 1554, 1555, Code of 1942) governing the enrollment of judgments and limiting the duration of the lien thereof to seven years, notwithstanding provision of § 104, Constitution of 1890, that statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof. United States v. Williams-Richardson Co., 206 Miss. 378, 40 So. 2d 177, 1949 Miss. LEXIS 268 (Miss. 1949).

Where an administrator failed to plead the bar to a scire facias against him, and it is sought to subject lands to the judgment, the heir may defend on the statute. Champion v. Cayce, 54 Miss. 695, 1877 Miss. LEXIS 83 (Miss. 1877).

Where the plaintiff in the judgment, were he living, could not revive the same or have execution on it, the administrator cannot do so. Palmer v. Jones, 50 Miss. 657, 1874 Miss. LEXIS 105 (Miss. 1874).

When the statute is once put in motion, it is not arrested by any subsequent disability; nothing but a positive statute will stop it. Pollard v. Eckford, 50 Miss. 631, 1874 Miss. LEXIS 102 (Miss. 1874).

2. Applicability.

Employee’s claim to enforce a workers’ compensation judgment against a corporate employer’s president was not time-barred because the suit against the president was filed less than seven years after an administrative judge awarded the employee compensation. Jarrett v. Dillard, 167 So.3d 1147, 2015 Miss. LEXIS 348 (Miss. 2015).

Contempt action was timely because the statute of limitations in Miss. Code Ann. §15-1-43 applied as a spouse’s action sought enforcement of a hold-harmless provision of a property-settlement agreement, which by operation of Miss. Code Ann. §93-5-2 became part of the final judgment of divorce, and the spouse filed for contempt within seven years of learning that a bank was pursuing the spouse for the debt on a car which was assigned to the other spouse and discharged in bankruptcy by the other spouse. Moseley v. Smith, 180 So.3d 667, 2014 Miss. App. LEXIS 689 (Miss. Ct. App. 2014), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 605 (Miss. 2015), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 625 (Miss. 2015).

After a guardianship account was drained, the twenty-four-year-old ward sued the bank for breaching its duty by allowing the funds on deposit to be converted without a court order; the claim was barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49, because it was not filed three years after he turned twenty-one. The chancery court’s decree did not give the ward any affirmative relief that would make him a judgment creditor; therefore, Miss. Code Ann. §15-1-43 was not the applicable statute of limitations. Williams v. Duckett (In re Duckett), 991 So. 2d 1165, 2008 Miss. LEXIS 307 (Miss. 2008).

3. Issuance of execution.

Execution could issue within seven years after dissolution of decree obtained by judgment debtor enjoining execution on money decree, though original decree was barred. Russ v. Stockstill, 155 Miss. 368, 124 So. 359, 1929 Miss. LEXIS 290 (Miss. 1929).

The issuance of execution within seven years after the rendition of a judgment, and within the same period prior to the institution of a suit thereon, will not save the bar, since the limitation runs from its rendition. Berkson v. Cox, 73 Miss. 339, 18 So. 934, 1895 Miss. LEXIS 120 (Miss. 1895); Stith v. Parham, 57 Miss. 289, 1879 Miss. LEXIS 72 (Miss. 1879).

4. Garnishment.

Where a party commences a garnishment proceeding when the underlying judgment is still valid, the statute of limitations for actions on judgments is tolled as to that particular party as to funds, due to the judgment debtor, that were in the hands of the garnishee when the garnishment proceeding was initiated and the underlying judgment was valid; a garnisher is not entitled to the funds due to the judgment debtor, which came into the garnishee’s hands only after the underlying judgment lapsed. Quality Diesel Serv. v. Tiger Drilling Co., LLC, 190 So.3d 860, 2016 Miss. LEXIS 2 (Miss. 2016).

Trial court erred in granting a limited liability company’s (LLC) motion to dismiss a garnishment proceeding because a judgment creditor was not required to renew its underlying judgment against the judgment debtor for it to maintain its timely filed garnishment proceeding against the LLC, who was indebted to the debtor; the creditor brought its action within the seven-year period, and the underlying judgment had not lapsed as to its timely issued writs of garnishment and garnishment contest. Quality Diesel Serv. v. Tiger Drilling Co., LLC, 190 So.3d 860, 2016 Miss. LEXIS 2 (Miss. 2016).

Trial court did not err in ruling that a purchaser’s garnishment action against a seller was time-barred because it was filed months after the statute had run, and the purchaser failed to take advantage of the many procedural mechanisms available to him to extend the life of his judgment; thus, the judgment had been extinguished, and the purchaser could not bring a valid garnishment action. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

Seller was not estopped from asserting the statute of limitations defense because it never prevailed on the argument that the judgment entered in favor of the purchaser was uneforceable; therefore, if the seller was taking an inconsistent position, the doctrine of estoppel would not apply. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

Trial court did not err in ruling that a purchaser’s garnishment action against a seller was time-barred because it was filed months after the statute had run; the purchaser’s motion to amend the mandate in the action the seller filed against him did not toll the statute. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

Because a purchaser’s circuit court judgment was not the underlying proceeding, it was not stayed by the order granting interlocutory appeal. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

A garnishee which failed to file an answer to a writ of garnishment as required by §11-35-25 and instead paid $10 per week of the judgment debtor’s salary directly to the attorney for the judgment holder was liable to the debtor for monies wrongfully withheld after expiration of the judgment where, although the judgment and execution thereon had expired after seven years as provided in §§15-1-3,15-1-43 and although the judgment holder had failed to file another suit on the judgment prior to the expiration of the seven years as required by §15-1-47 to extend the judgment lien, the garnishee continued to pay the $10 per week to the judgment holder for two years after the judgment had lapsed. Anderson-Tully Co. v. Brown, 383 So. 2d 1389, 1980 Miss. LEXIS 2023 (Miss. 1980).

Writ of garnishment could not be issued on old judgment after seven years, though suit on judgment was commenced before seven years expired, since execution and other process to enforce the lien must be issued on the new judgment. Buckley v. F. L. Riley Mercantile Co., 155 Miss. 150, 124 So. 267, 1929 Miss. LEXIS 268 (Miss. 1929).

Garnishment will not extend the lien of the judgment upon which it is founded. Grace v. Pierce, 127 Miss. 831, 90 So. 590, 1921 Miss. LEXIS 286 (Miss. 1921).

5. Computation of limitation period.

Chancery court did not err in granting a wife an interest in a husband’s retirement account to secure child support; thus, the statute of limitations on the wife’s action based on a domestic judgment under Miss. Code Ann. §15-1-43 was tolled by the child support exception of Miss. Code Ann. §15-1-59 because the retirement funds, though put in the wife’s name, were child support payments. Carlson v. Matthews, 966 So. 2d 1258, 2007 Miss. App. LEXIS 725 (Miss. Ct. App. 2007).

Limitations period under Miss. Code Ann. §15-1-43 did not bar a contempt action to recover child support payments 12 years after a divorce decree was entered because the youngest child had until 2008 to bring the action under the savings clause of Miss. Code Ann. §15-1-59. Strack v. Sticklin, 959 So. 2d 1, 2006 Miss. App. LEXIS 634 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 371 (Miss. 2007).

Trial court chancellor properly found a petition for contempt was not barred by any statute of limitation because it was not the assertion of a new claim but rather part of an ongoing effort to collect on a six-year-old child support judgment against the father; collecting past due child support and expenses fell within the seven-year period of limitation for enforcement of domestic judgments, Miss. Code Ann. §15-1-43 (Rev. 1995). Morrison v. Miss. Dep't of Human Servs., 852 So. 2d 578, 2002 Miss. App. LEXIS 616 (Miss. Ct. App. 2002), rev'd, in part, aff'd, 863 So. 2d 948, 2004 Miss. LEXIS 16 (Miss. 2004).

Statute of limitations applicable to action founded on judgment or decree (§15-1-43) is tolled when suit to renew decree is filed, but commences to run again when suit to renew is dismissed as stale under §11-53-25; dismissal of stale case is not dismissal for matter of form to which statute of limitations applicable to commencement of new action subsequent to abatement or defeat of original action (§15-1-69) would apply. Deposit Guaranty Nat'l Bank v. Roberts, 483 So. 2d 348, 1986 Miss. LEXIS 2396 (Miss. 1986).

Where the claimant commenced his suit in circuit court within twelve months after the money became due and payable to enforce a mechanic’s and a materialman’s lien and recovered a judgment establishing the lien, and then started a second suit after twelve months had expired for the purpose of having judgment declared prior to lien claimed under a deed of trust, the circuit court judgment on which relief was sought in the chancery court on the second suit, was not barred by the limitation until seven years after its rendition. Vinson v. Cooley, 54 So. 2d 750 (Miss. 1951).

Under § 2543, Code of 1942, which provides that whenever an offender has violated the condition of a suspended sentence the court is authorized to annul such suspended sentence and the offender shall be subject to arrest and court sentence service, as if no suspended sentence has been granted and for the full term of the original sentence that had not been served, the court may enforce the judgment and revoke the suspension of execution at any subsequent time, even after the original period of the sentence has passed. Smith v. State, 212 Miss. 497, 54 So. 2d 739, 1951 Miss. LEXIS 475 (Miss. 1951).

Wife is entitled to recover from her husband’s estate defaulted alimony payments and interest extending for a period seven years prior to husband’s death, but this section [Code 1942, § 733] bars recovery for alimony in default for more than seven years before husband’s death. Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443, 1950 Miss. LEXIS 381 (Miss. 1950).

Where a decree of foreclosure was rendered in 1931 and provided for report of sale in the next term of court in 1932, but the sale was not effected nor was a decree rendered confirming it and providing for deficiency judgment until 1933, the limitation provided for by this section [Code 1942, § 733] did not start to run until the rendition of the second decree as regards an action commenced to collect on the deficiency judgment. Roebke v. Love, 186 Miss. 609, 191 So. 122, 1939 Miss. LEXIS 238 (Miss. 1939).

Time, limited for issuance, is not extended by execution during defendant’s absence from state; issuance not being commencement of action. McGraw v. Mitchell, 142 Miss. 357, 107 So. 423, 1926 Miss. LEXIS 82 (Miss. 1926).

Fractions of days not considered in computing limitation period. Hattiesburg Grocery Co. v. Tompkins, 111 Miss. 592, 71 So. 866, 1916 Miss. LEXIS 343 (Miss. 1916).

Suit begun October 31, 1914, on judgment rendered October 31, 1907, not barred. Hattiesburg Grocery Co. v. Tompkins, 111 Miss. 592, 71 So. 866, 1916 Miss. LEXIS 343 (Miss. 1916).

6. Extension of judgment lien.

Since the judgment creditor did not challenge the trial court’s jurisidiction to enter a default judgment against him in 1992 or contest the allegation, regarding the 1999 renewal, that he was a resident of Hinds County, the assignee was entitled to file his 1999 action for renewal of the judgment in the trial court in Hinds County, even though the original judgment was entered in the Chancery Court of Copiah County in 1985, as venue was permissible pursuant to Miss. Code Ann. §15-1-43 in the court where the judgment was originally rendered or wherever else venue was proper, including the place where the judgment debtor was residing. Lloyd v. Bank of the South, 796 So. 2d 985, 2001 Miss. LEXIS 184 (Miss. 2001).

Since Miss. Code Ann. §15-1-43 does not specify where a renewal of judgment suit may be brought, such judgments may be sought by motion in the court where the judgment was originally rendered, or by a separate action wherever venue is proper, including the place where the defendant is residing. Lloyd v. Bank of the South, 796 So. 2d 985, 2001 Miss. LEXIS 184 (Miss. 2001).

The only effective method to extend the judgment lien is by filing another suit upon the judgment before the expiration of 7 years from the rendition thereof. Kimbrough v. Wright, 231 Miss. 855, 97 So. 2d 362, 1957 Miss. LEXIS 573 (Miss. 1957).

Plaintiff’s action in bringing suits and obtaining process before the lapse of seven years from the date of the rendition of previous successive judgments effectively stopped the running of a statute of limitations. Kimbrough v. Wright, 231 Miss. 855, 97 So. 2d 362, 1957 Miss. LEXIS 573 (Miss. 1957).

The lien of a judgment can be extended only by the filing of another suit thereon within seven years. A suit in the name of the assignee of a judgment within the prescribed time is a full compliance with the section [Code 1942, § 733]. Street v. Smith, 85 Miss. 359, 37 So. 837, 1904 Miss. LEXIS 159 (Miss. 1904).

If a new lien be sought, a suit must be brought on the judgment within seven years. Stith v. Parham, 57 Miss. 289, 1879 Miss. LEXIS 72 (Miss. 1879); Buckner v. Pipes, 56 Miss. 366, 1879 Miss. LEXIS 130 (Miss. 1879); Locke v. Brady, 30 Miss. 21, 1855 Miss. LEXIS 54 (Miss. 1855).

7. Laches.

Trial court did not err in applying the statute of limitations at Miss. Code Ann. §15-1-43 to bar a mother’s claim for child support arrearages as to her three oldest adult children where she failed to support the proposition that her complaint could relate back to a voided prior action and failed to cite any authority supporting the proposition that the statute of limitations did not begin to run until the youngest child was emancipated. Ladner v. Logan, 857 So. 2d 764, 2003 Miss. LEXIS 551 (Miss. 2003).

Chancery court found that the seven-year statute of limitation, Miss. Code Ann. §15-1-43, on enforcing monetary judgments barred recovery of any unpaid alimony amount that accrued seven years prior to the commencement of the contempt action. The ex-husband took no issue with that limitation, but his argument that laches and/or equitable estoppel should have precluded his ex-wife from enforcing any of the 1981 settlement agreement’s financial provisions was rejected, since laches was inapplicable to those claims not barred by limitations, and the ex-husband had unclean hands so that equitable estoppel was not a defense. Nicholas v. Nicholas, 841 So. 2d 1208, 2003 Miss. App. LEXIS 287 (Miss. Ct. App. 2003).

Wife not demanding alimony within seven-year statutory period held guilty of laches, barring recovery of installments due more than seven years. Hollis v. Bryan, 166 Miss. 874, 143 So. 687, 1932 Miss. LEXIS 304 (Miss. 1932).

RESEARCH REFERENCES

ALR.

Inclusion or exclusion of first and last day for purposes of statute of limitations. 20 A.L.R.2d 1249.

Am. Jur.

46 Am. Jur. 2d, Judgments § 644.

CJS.

50 C.J.S., Judgments §§ 919-924 et seq.

Law Reviews.

Hoffheimer, Mississippi Conflict of Laws. 67 Miss. L. J. 175, Fall, 1997.

Cross References —

Uniform enforcement of foreign judgments, see §11-7-301 et seq.

Effect on action barred in another state, see §15-1-65.

JUDICIAL DECISIONS

1. In general.

2. Limitation period as to residents.

1. In general.

Circuit court erred in denying a former wife’s motion to set aside a foreign judgment ordering her to pay a former husband because the statute of limitations had lapsed; the judgment was intended to be a continuation of the divorce proceeding and, therefore, was not enrolled before the statute of limitations lapsed. White v. Taylor, — So.3d —, 2019 Miss. App. LEXIS 261 (Miss. Ct. App. June 11, 2019).

Registration of a child support order was timely because the three-year statute of limitations applicable to the father under Mississippi law was tolled while the child remained a minor. The tolling applied to the mother and the State, though neither was under such a disability, and the child was twelve years old in January, 1999. Shelnut v. Dep't of Human Servs., 9 So.3d 359, 2009 Miss. LEXIS 125 (Miss. 2009).

Garnishment proceeding was no longer valid after the lapse of the judgment upon which the garnishment was issued; because more than three years had passed, the statute of limitation in Miss. Code Ann. §15-1-45 expired before the judgment creditor received its writ of garnishment, such that the garnishment was void ab initio and was unenforceable because it was not timely filed. Nat'l Enters. v. Valsamakis, 879 So. 2d 523, 2004 Miss. App. LEXIS 716 (Miss. Ct. App. 2004).

The statute did not apply to an action by a judgment creditor in which the allegation was that the judgment debtor had fraudulently conveyed real property to his son since the issue was not whether the judgment creditor timely and properly filed its foreign judgment in a Mississippi court, but whether the judgment creditor timely filed its complaint against the judgment debtor and his son for a fraudulent conveyance. O'Neal Steel, Inc. v. Millette, 797 So. 2d 869, 2001 Miss. LEXIS 31 (Miss. 2001).

Statute of limitations on mother’s action to enforce foreign judgment against father for child support arrearage was tolled by minority of children, even though mother was not under disability of minority. Vice v. Department of Human Servs., 702 So. 2d 397, 1997 Miss. LEXIS 606 (Miss. 1997).

Mississippi is required by the United States Constitution, Art. IV, Sec. 1, to give full faith and credit to all final judgments of other states and federal courts unless (1) the foreign judgment was obtained as a result of some false representation without which the judgment would not have been rendered, or (2) the rendering court did not have jurisdiction over the parties or the subject matter; however, in order to challenge a foreign judgment on this ground, it is necessary that the challenge be timely and properly filed in Mississippi pursuant to §15-1-45. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

A judgment is not a contract, and the seven years’ limitation cannot be avoided by showing a new promise or acknowledgment in writing, as contemplated by Code 1880, § 2688. Berkson v. Cox, 73 Miss. 339, 18 So. 934, 1895 Miss. LEXIS 120 (Miss. 1895).

The section [Code 1871, § 2154] is subject to the exception in Code 1871, § 2157, as to the defendant’s absence from the state. Kennard use of McGehee v. Alston, 62 Miss. 763, 1885 Miss. LEXIS 140 (Miss. 1885).

2. Limitation period as to residents.

Because the bank enrolled the foreign judgment nearly ten years after it was entered in Texas, almost three years outside the limitations period, the judgment was unenforceable and its enrollment in Mississippi was void because it was not timely filed. N. Dallas Bank & Trust Co. v. Mabry, 271 So.3d 629, 2018 Miss. App. LEXIS 579 (Miss. Ct. App. 2018).

In a garnishment case in which (1) a lessor obtained a judgment against the lessees in 1990; (2) the lessor did not enroll the judgment in a Mississippi court within the three-year limitations period set forth in Miss. Code Ann. §15-1-45; (3) the original judgment was revived as a new judgment under Ind. Code §34-55-1-6; and (4) the lessor enrolled the judgment within the three-year limitations period set forth in Miss. Code Ann. §15-1-45, the lessees had no viable claim for wrongful garnishment, malicious prosecution, abuse of process, negligence, gross negligence or intentional infliction of emotional distress. Smith v. RJH of Fla., Inc., 520 F. Supp. 2d 838, 2007 U.S. Dist. LEXIS 84863 (S.D. Miss. 2007).

Three-year Mississippi statute of limitation for enforcement of foreign judgments governed enforcement in Mississippi of Louisiana judgment ordering father to pay child support arrearage, since father was Mississippi resident at time Louisiana judgment was rendered; ten-year Louisiana statute of limitations for actions to enforce unpaid child support did not apply, even though mother and children resided in Louisiana during time father failed to pay support. Vice v. Department of Human Servs., 702 So. 2d 397, 1997 Miss. LEXIS 606 (Miss. 1997).

The language “at the time of the institution of the action” in §15-1-45 refers to the action in which the judgment was rendered. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

Although this section did not prohibit a divorced wife from bringing suit for past due child support payments pursuant to a 1969 Louisiana divorce decree, it was applicable only after September 1973, the time at which the husband’s then past due monthly payments were reduced to a final judgment. Hinds v. Primeaux, 367 So. 2d 925, 1979 Miss. LEXIS 2218 (Miss. 1979).

Where a judgment was rendered in Alabama against a nonresident of Mississippi on a cause of action which did not accrue in Mississippi, and the defendant thereafter became a resident of Mississippi, the statute of limitations ran from the date of the judgment rather than from the time the defendant became a resident of Mississippi. United States Fidelity & Guaranty Co. v. Ransom, 192 Miss. 286, 5 So. 2d 238, 1941 Miss. LEXIS 38 (Miss. 1941).

Three-year limitation statute for bringing action on foreign judgment against citizens residing in state at filing suit held not violative of full faith and credit clause; state may prescribe reasonable statute of limitation for suing on foreign judgment. Bosich v. Skermetti, 146 Miss. 491, 112 So. 385, 1927 Miss. LEXIS 248 (Miss. 1927).

Three-year limitation for commencement of action on foreign judgment against judgment debtor, who was resident at time of institution of action, refers to action in which judgment was rendered. Gray v. Valley, 136 Miss. 886, 101 So. 855, 1924 Miss. LEXIS 186 (Miss. 1924).

A plea of the statute of limitation of three years is bad if it fails to aver that the defendant was a resident of this state at the time suit was instituted. Marx v. Logue, 71 Miss. 905, 15 So. 890, 1894 Miss. LEXIS 23 (Miss. 1894).

RESEARCH REFERENCES

ALR.

Inclusion in domestic judgment or record, in action upon a judgment of a sister state of findings respecting the cause of action, on which the judgment in the sister state was rendered. 10 A.L.R.2d 435.

Conflict of laws as to time limitations governing action on foreign judgment. 36 A.L.R.2d 567.

Cross References —

Judgment liens generally, see §11-7-191.

JUDICIAL DECISIONS

1. In general.

2. Garnishment.

3. Stay of execution, supersedeas or injunction.

4. Tolling of limitations period.

1. In general.

Chancellor did not err in finding that a former wife’s claim to a prior monetary judgment against a former husband was not yet barred by the statute of limitations because at the time the wife filed her motion for citation for contempt and for modification of alimony, the statute of limitations had not yet expired on her ability to collect the prior judgment; the wife filed her motion within the applicable seven-year statute-of-limitations period and based it on the prior underlying judgment. Smith v. Smith, 203 So.3d 1150, 2016 Miss. App. LEXIS 737 (Miss. Ct. App. 2016).

A hospital which was jointly owned by a city and a hospital district, and was governed by a board of trustees jointly appointed by the city council and the county board of supervisors, was a “subdivision [of the state] or municipal corporation thereof” within the meaning and contemplation of Art 4, § 104 of the Mississippi Constitution and §15-1-51. Thus, the 7-year period of limitations governing judgment liens set forth in §15-1-47 was inoperative against the hospital. Enroth v. Memorial Hosp. at Gulfport, 566 So. 2d 202, 1990 Miss. LEXIS 432 (Miss. 1990).

Where defendants in ejectment suit had shown that the property involved therein had been sold by order of the chancery court, the purchase money paid and possession taken by the purchaser under such sale, and had testified, without contradiction, as to their good faith, they had thereby sustained their plea of the bar of the statute of limitations unless the plaintiffs could show in rebuttal that the sale was not in good faith. Gill v. Johnson, 206 Miss. 707, 40 So. 2d 600, 1949 Miss. LEXIS 295 (Miss. 1949).

Judgment lien of United States obtained in proceeding in Federal district court is subject, under applicable Federal statutes, to state statutes (§§ 733, 735, 1554, 1555, Code of 1942) governing the enrollment of judgments and limiting the duration of the lien thereof to seven years, notwithstanding provision of § 104, Constitution of 1890, that statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof. United States v. Williams-Richardson Co., 206 Miss. 378, 40 So. 2d 177, 1949 Miss. LEXIS 268 (Miss. 1949).

A decree of a court of chancery establishing the arrears due on a life annuity charged upon lands is not within the operation of this provision (Code of 1857, Ch. 57, Art. XV, p. 401), to the effect that no judgment or decree rendered in any court held within the state shall be a lien upon the property of the defendant therein for a longer period of seven years from the rendition thereof. Canal Bank v. Hudson, 111 U.S. 66, 4 S. Ct. 303, 28 L. Ed. 354, 1884 U.S. LEXIS 1759 (U.S. 1884).

The general lien of a judgment can only be kept alive by a new action based upon the judgment. Stith v. Parham, 57 Miss. 289, 1879 Miss. LEXIS 72 (Miss. 1879); Buckner v. Pipes, 56 Miss. 366, 1879 Miss. LEXIS 130 (Miss. 1879).

2. Garnishment.

Where a party commences a garnishment proceeding when the underlying judgment is still valid, the statute of limitations for actions on judgments is tolled as to that particular party as to funds, due to the judgment debtor, that were in the hands of the garnishee when the garnishment proceeding was initiated and the underlying judgment was valid; a garnisher is not entitled to the funds due to the judgment debtor, which came into the garnishee’s hands only after the underlying judgment lapsed. Quality Diesel Serv. v. Tiger Drilling Co., LLC, 190 So.3d 860, 2016 Miss. LEXIS 2 (Miss. 2016).

Trial court erred in granting a limited liability company’s (LLC) motion to dismiss a garnishment proceeding because a judgment creditor was not required to renew its underlying judgment against the judgment debtor for it to maintain its timely filed garnishment proceeding against the LLC, who was indebted to the debtor; the creditor brought its action within the seven-year period, and the underlying judgment had not lapsed as to its timely issued writs of garnishment and garnishment contest. Quality Diesel Serv. v. Tiger Drilling Co., LLC, 190 So.3d 860, 2016 Miss. LEXIS 2 (Miss. 2016).

Trial court did not err in ruling that a purchaser’s garnishment action against a seller was time-barred because it was filed months after the statute had run, and the purchaser failed to take advantage of the many procedural mechanisms available to him to extend the life of his judgment; thus, the judgment had been extinguished, and the purchaser could not bring a valid garnishment action. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

Purchaser was not legally enjoined from bringing an enforcement action of his own while a bank’s garnishment action was stayed because no proceeding occurred that operated as an automatic stay of his judgment; the mere circumstance that the enforceability of the purchaser’s final judgment was the subject matter of an appeal in a different party’s garnishment action did not operate to enjoin the purchaser from attempting to collect the judgment. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

Seller was not estopped from asserting the statute of limitations defense because it never prevailed on the argument that the judgment entered in favor of the purchaser was uneforceable; therefore, if the seller was taking an inconsistent position, the doctrine of estoppel would not apply. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

Because a purchaser’s circuit court judgment was not the underlying proceeding, it was not stayed by the order granting interlocutory appeal. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

A garnishee which failed to file an answer to a writ of garnishment as required by §11-35-25 and instead paid $10 per week of the judgment debtor’s salary directly to the attorney for the judgment holder was liable to the debtor for monies wrongfully withheld after expiration of the judgment where, although the judgment and execution thereon had expired after seven years as provided in §§15-1-3,15-1-43 and although the judgment holder had failed to file another suit on the judgment prior to the expiration of the seven years as required by §15-1-47 to extend the judgment lien, the garnishee continued to pay the $10 per week to the judgment holder for two years after the judgment had lapsed. Anderson-Tully Co. v. Brown, 383 So. 2d 1389, 1980 Miss. LEXIS 2023 (Miss. 1980).

Writ of garnishment could not be issued on old judgment after seven years, though suit on judgment was commenced before seven years expired. Buckley v. F. L. Riley Mercantile Co., 155 Miss. 150, 124 So. 267, 1929 Miss. LEXIS 268 (Miss. 1929).

Garnishment will not extend lien of the judgment upon which it is founded. Grace v. Pierce, 127 Miss. 831, 90 So. 590, 1921 Miss. LEXIS 286 (Miss. 1921).

3. Stay of execution, supersedeas or injunction.

Where a party appealed and obtained a bond styled “appeal bond with supersedeas” in an amount sufficient to effect supersedeas, and had the benefit of supersedeas in that execution of judgment was stayed, but there was no indication that the bonds were liable for the amount of judgment as required of supersedeas bonds by Code § 1973, such party was estopped, in a suit on the judgment which had been affirmed, from changing his position and contending that the bond did not toll the statute of limitations since it failed to include the conditions imposed by Code § 1163 requiring that the bond be conditioned that the appellant will satisfy the judgment or decree. Breland v. International Paper Co., 233 So. 2d 827, 1970 Miss. LEXIS 1686 (Miss. 1970).

4. Tolling of limitations period.

Trial court did not err in ruling that a purchaser’s garnishment action against a seller was time-barred because it was filed months after the statute had run; the purchaser’s motion to amend the mandate in the action the seller filed against him did not toll the statute. Johnson v. Parker Tractor & Implement Co., 132 So.3d 1032, 2014 Miss. LEXIS 31 (Miss. 2014).

The statutory limitations period is tolled where the execution on the judgment has been stayed by a filing for bankruptcy. Trustmark Nat'l Bank v. Pike County Nat'l Bank, 716 So. 2d 618, 1998 Miss. LEXIS 304 (Miss. 1998).

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 391 et seq.

CJS.

50 C.J.S., Judgments §§ 760, 761 et seq.

Editor’s Notes —

Laws, 1989, ch. 311, § 7 effective from and after July 1, 1989, provides as follows:

“SECTION 7. The provisions of this act shall apply only to causes of action accruing on or after July 1, 1989.”

Laws, 1990, ch. 348, § 2 provides as follows:

“SECTION 2. If any section, paragraph, sentence, clause, phrase or any part of this act is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts of this act shall be in no manner affected thereby but shall remain in full force and effect.”

Cross References —

Exceptions for issues of moneyed corporations or banks, see §15-1-79.

Statute of limitation in contracts for sale, see §75-2-725.

Effect of bank’s customer failure to discover and report forgery or alteration of item, see §75-4-406.

JUDICIAL DECISIONS

1. [Reserved for future use.]

2. In general.

3. —Matters provable by writing.

4. —Applicability.

5. —Particular cases.

6. Deeds of trust.

7. Covenants and conditions.

8. Demands for rent.

9. Bills and notes, generally.

10. —Payable in installments.

11. —Payable on demand.

12. —Particular cases.

13. County and municipal obligations.

14. Judgments.

15. Torts, generally.

16. —Contracts.

17. — Personal injuries.

18. —Wrongful death.

19. —Infliction of emotional distress.

20. —Products liability.

21. —Alienation of affections.

22. —Actions for deceit.

23. —Damage to realty.

24. —Malpractice.

25. Causes or rights accruing in foreign state.

26. Persons affected.

27. Running of limitation period, generally.

28. — Accrual of cause of action; miscellaneous.

29. — —Real property, deeds, etc.

30. — — Insurance.

31. — —Notes and bonds.

32. — —Banking.

33. — —Contracts.

34. — —Negligence cases.

35. — —Heirship.

36. —Joint causes of action.

37. —Computation of limitation period.

38. — Tolling of statute.

39. Service of process

40. Particular cases; miscellaneous.

41. — Insurance.

42. —Real property, deeds, etc.

43. —Family relationships, heirships, estates.

44. —Employment.

45. —Civil rights.

46. Corporations.

1. [Reserved for future use.]

[Reserved for future use.]

2. In general.

Where plaintiff did not file his action to recover funds after defendant’s check to him bounced until almost four years after the check was first dishonored, plaintiff’s action was barred by the statute of limitations in Miss. Code Ann. §75-3-118(c), but the trial court’s application of the statute of limitations in Miss. Code Ann. §15-1-49 achieved the same result. Bryan v. Aron, 941 So. 2d 831, 2006 Miss. App. LEXIS 185 (Miss. Ct. App.), cert. denied, 942 So. 2d 164, 2006 Miss. LEXIS 648 (Miss. 2006).

Since there was no specific statute of limitations for claims on written contracts, Miss. Code Ann. §15-1-49 therefore applied; as the determination had been made that the neighbor’s cause of action accrued under contract, not as an action to recover land, §15-1-49 and the three year statute of limitations prescribed therein applied; as was correctly found by the chancery court, the neighbor’s claim was time barred by the statute of limitations. Lloyd v. Gibbes, 910 So. 2d 587, 2005 Miss. App. LEXIS 146 (Miss. Ct. App. 2005).

A conversion action was timely commenced 3 1/2-years after it accrued on May 23, 1989 pursuant to the limitations period in effect when the claim arose (§15-1-49); the mere failure of the legislature to retain the savings language when amending the statute to shorten the limitations period to 3 years did not express a “clear intent” that a shorter limitations period apply to already-accrued actions. First Bank v. Eastern Livestock Co., 886 F. Supp. 1328, 1995 U.S. Dist. LEXIS 7662 (S.D. Miss. 1995).

If no action on an anticipatory breach is brought before the time fixed by the contract for the beginning of the performance by the party who has committed such a breach, the period of statute of limitations begins to run only from the time so fixed by the contract. Old Ladies Home Ass'n v. Hall, 212 Miss. 67, 52 So. 2d 650, 1951 Miss. LEXIS 428 (Miss. 1951).

Writing sufficient to take case out of statute providing that actions on open account or stated account not acknowledged by writing shall be commenced within three years must contain an acknowledgment of indebtedness, or promise to pay, in such terms as to render supplementary evidence unnecessary. Blount v. Miller, 172 Miss. 492, 160 So. 598, 1935 Miss. LEXIS 157 (Miss. 1935).

The six-year statute governs, among other things, written contracts express or implied. Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227, 1923 Miss. LEXIS 233 (Miss. 1923).

Action for county taxes erroneously paid governed by 6-year statute of limitation; “provable by writing.” Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227, 1923 Miss. LEXIS 233 (Miss. 1923).

Action on paid or cancelled check or draft to recover specified amount from payee, is not one on a written instrument, and the six-year statute does not apply. Wally v. L. N. Dantzler Lumber Co., 119 Miss. 700, 81 So. 489, 1919 Miss. LEXIS 47 (Miss. 1919).

Action for loss of cotton seed is one on written contract although bill of lading did not specify amount to be transported. Illinois C. R. Co. v. Jackson Oil & Refining Co., 111 Miss. 320, 71 So. 568, 1916 Miss. LEXIS 296 (Miss. 1916).

A recital in a deed of a consideration proved not to have been paid is a promise in writing only, barred under this section [Code 1942, § 722], as in the case of written promises. Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036, 1904 Miss. LEXIS 83 (Miss. 1904).

3. —Matters provable by writing.

In order for a cause of action to come within the purview of this section [Code 1942, § 722], it is not required that it shall be evidenced by writing and signed by the party sought to be charged; it is only necessary that the cause of action shall be provable by writing, and an obligation to pay the same shall arise either expressly or by law. Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227, 1923 Miss. LEXIS 233 (Miss. 1923).

4. —Applicability.

Contempt action was timely because the statute of limitations in Miss. Code Ann. §15-1-43 applied as a spouse’s action sought enforcement of a hold-harmless provision of a property-settlement agreement, which by operation of Miss. Code Ann. §93-5-2 became part of the final judgment of divorce. Moseley v. Smith, 180 So.3d 667, 2014 Miss. App. LEXIS 689 (Miss. Ct. App. 2014), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 605 (Miss. 2015), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 625 (Miss. 2015).

With respect to his claim of wrongful termination, the former employee did not allege that he had a written contract of employment, and there was no proof that the employment relationship between the employee and his former employer, a manager, and a store services company was other than an unwritten contract. Therefore, Miss. Code Ann. §15-1-49, the three-year statute of limitations applicable to an action for breach of a written contract of employment, did not apply to the employee’s claim. Davis v. Belk Stores Servs., 2009 U.S. Dist. LEXIS 487 (S.D. Miss. Jan. 6, 2009).

This section, rather than §15-1-29, applies to contracts for professional services. Law Firm of Logan & Bise v. Stewart (In re Estate of Stewart), 732 So. 2d 255, 1999 Miss. LEXIS 81 (Miss. 1999).

In an action on a guaranty contract, the general six-year statute of limitations Code §15-1-49 would be applied rather than the one-year statute of limitations regarding actions following the foreclosure of an installment note. First Nat'l Bank v. Drummond, 419 So. 2d 154, 1982 Miss. LEXIS 2123 (Miss. 1982).

Where the action was one either in tort or for a wrongful breach of duty in a suit on a letter agreement, the three-year limitations statute applicable to open accounts did not apply, and the action was governed by the six-year statute of limitations. Bentz v. Vardaman Mfg. Co., 210 So. 2d 35, 1968 Miss. LEXIS 1491 (Miss. 1968).

Six-year statute of limitations is applicable to the liability of an insured for the payment of premiums, where such liability and the amount thereof were proved in writing. Neely v. Johnson-Barksdale Co., 194 Miss. 529, 12 So. 2d 924, 1943 Miss. LEXIS 86 (Miss. 1943).

A trainman’s action against railroad for damages for wrongful discharge contrary to contract between railroad and trainmen’s union was based on written contract with union rather than on verbal contract of employment, and hence was subject to six-year rather than to three-year statute of limitations. Moore v. Illinois C. R. Co., 180 Miss. 276, 176 So. 593, 1937 Miss. LEXIS 92 (Miss. 1937).

Six-year period of limitations applicable to all actions for which no other period is prescribed held applicable to action against stockholders of insolvent bank for their double liability, and not three-year period applicable to actions on unwritten contracts, since double liability of a stockholder is provable by writing, and therefore is not an implied contract, but written contract with an implied promise to pay. Rather v. Moore, 179 Miss. 78, 173 So. 664, 1937 Miss. LEXIS 8 (Miss. 1937).

Three-year statute of limitations would not be applicable to action against stockholders of insolvent State Bank for their double liability, even if such liability is statutory, since liability is not a “penalty,” and hence six-year statute would apply. Rather v. Moore, 179 Miss. 78, 173 So. 664, 1937 Miss. LEXIS 8 (Miss. 1937).

In shipper’s action for freight charges exceeding those authorized by Railroad Commission, three-year rather than six-year statute applied. Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co., 172 Miss. 630, 172 Miss. 634, 158 So. 778, 159 So. 838, 160 So. 564, 1935 Miss. LEXIS 95 (Miss.), amended, 172 Miss. 654, 159 So. 838 (Miss. 1935).

Three-year statute is inapplicable to action on written contract. Vicksburg Waterworks Co. v. Yazoo & M. V. R. Co., 102 Miss. 504, 59 So. 825, 1912 Miss. LEXIS 81 (Miss. 1912).

A written acknowledgment of an open account converts it into “a stated account acknowledged in writing signed by the debtor” and the six years’ limitation thereafter applies. Tennessee Brewing Co. v. Hendricks, 77 Miss. 491, 27 So. 526, 1899 Miss. LEXIS 75 (Miss. 1899).

5. —Particular cases.

Trial court properly found that the fraud, unjust enrichment, and claims related to decedent’s photographs were time-barred under Miss. Code Ann. §15-1-49 (2012) where the claims accrued when the legatees learned that the recording studio intended to use the photographs in 1990, but the legatees had not filed suit until over 20 years later. Anderson v. LaVere, 136 So.3d 404, 2014 Miss. LEXIS 119 (Miss. 2014).

Chancellor erred in awarding a brother damages for actual and punitive because his claim fell under the three-year statute of limitations for which no other period of limitation was prescribed. Lott v. Saulters, 133 So.3d 794, 2014 Miss. LEXIS 53 (Miss. 2014).

Documents signed by plaintiff employees in a Worker Adjustment and Retraining Notification Act (WARN), 29 U.S.C.S. § 2101 et seq., during orientation, setting forth their rate of pay and other information, did not constitute a written employment contract within the meaning of Miss. Code. Ann. §15-1-49; Miss. Code. Ann. §15-1-29 set forth the appropriate statute of limitations in the case. Brewer v. Am. Power Source, Inc., 517 F. Supp. 2d 881, 2007 U.S. Dist. LEXIS 74154 (N.D. Miss. 2007), aff'd, 291 Fed. Appx. 656, 2008 U.S. App. LEXIS 19338 (5th Cir. Miss. 2008).

Homeowners’ predatory lending practices claims were time barred under Miss. Code Ann. §15-1-49(1) because their respective transactions occurred well over the three years before the suit was brought and the homeowners failed to show any affirmative act of fraudulent concealment under Miss. Code Ann. §15-1-67 to toll the statute of limitations. Carson v. McNeal, 375 F. Supp. 2d 509, 2005 U.S. Dist. LEXIS 13166 (S.D. Miss. 2005).

Home inspector overreached in his attempt to contractually create a private statute of limitations with two home buyers as the three-year statute of limitations under Miss. Code Ann. §15-1-49 could not be changed by contract; the attempt to change the statute of limitations was void under Miss. Code Ann. §15-1-5 and was substantively unconscionable. Pitts v. Watkins, 905 So. 2d 553, 2005 Miss. LEXIS 260 (Miss. 2005).

This section, rather than Miss. Code. Ann. §15-1-41, applied to an action by a subcontractor against a sub-subcontractor for the latter’s failure to use American made parts as required by the general contract as the subcontractor sought contract damages for an alleged breach, rather than damages arising out of an injury to person or property. Air Comfort Sys., Inc. v. Honeywell, Inc., 760 So. 2d 43, 2000 Miss. App. LEXIS 235 (Miss. Ct. App. 2000).

A store’s setoff counterclaim against the shopping mall in which it was located was not barred by the 3-year statute of limitations set forth in §15-1-29 where the store’s setoff defense was based on allegedly fraudulent overcharges made by the mall which implied an action arising under the lease between the store and the mall, and therefore the store’s fraud claim was subject to §15-1-49’s 6-year limitation period for an action on a written contract. Singing River Mall Co. v. Mark Fields, Inc., 599 So. 2d 938, 1992 Miss. LEXIS 135 (Miss. 1992).

In action against bail bondsmen and their surety alleging false imprisonment and malicious prosecution based upon allegedly improper arrest of plaintiff for jumping bail, applicable statute of limitations is 6-year period set forth in §15-1-49 rather than one-year period set forth in §15-1-35, since, although action is grounded in tort, it springs from underlying bond agreement between bail bondsmen and plaintiff. Mathis v. Indemnity Ins. Co., 588 F. Supp. 489, 1983 U.S. Dist. LEXIS 18293 (S.D. Miss. 1983).

In an action against a life insurer seeking recovery of double indemnity benefits that was filed more than four years subsequent to accrual of the claim, the trial court erred in concluding that the suit was barred by the three year statute of limitations governing accident and health insurance; although the policy, which was issued in connection with decedent’s employment, was delivered to the insured rather than a master policy to the employer with a certificate to the employee, this fact did not remove the policy from the group insurance class or convert it to an individual plan; as a group policy, it was specifically exempted from the three-year statute of limitations and was controlled instead by the six-year statute of limitations. Williams v. Life Ins. Co., 367 So. 2d 922, 1979 Miss. LEXIS 2219 (Miss. 1979).

Where under a sales representative agreement with a manufacturer, the manufacturer was to pay commissions on specified sliding scale for orders up to $250,000 and special commission allowances were to be established by the manufacturer for jobs greater than that amount, the 6-year statute of limitations governing obligations on written contracts, was applicable rather than the 3-year statute governing actions on open account, notwithstanding that parole testimony was necessary to establish the amount due. Beacham v. Beacham, 243 So. 2d 62, 1971 Miss. LEXIS 1505 (Miss. 1971).

Where complainant adequately averred in his bill of complaint an executory written contract to form a partnership, the performance of the necessary conditions precedent to its performance, actual formation of the partnership, actions of both parties under it, and its existence at the time of his deceased co-partner’s death, the bill sufficiently charged facts reflecting continuance of the partnership to the co-partner’s death, and the six-year statute of limitations was not applicable. Kelly v. Windham, 204 So. 2d 477, 1967 Miss. LEXIS 1206 (Miss. 1967).

Action by seller against buyer on written order signed by buyer’s president and seller’s salesman, which gives accurate description of goods purchased, price and terms of sale, stipulates that all special terms must be incorporated in order and duplicate to be recognized and order is not subject to countermand, and under which goods were shipped and accepted by buyer, is controlled by six-year statute of limitations, and not by three-year statute of limitations (Code 1942, § 729). Dixie Pine Products Co. v. Universal Refining Products Co., 208 Miss. 45, 43 So. 2d 752, 1949 Miss. LEXIS 406 (Miss. 1949).

Where agent of insurer under life policy containing double indemnity provision tendered check for benefit payable for natural death of insured and stated to beneficiary who was ignorant of circumstances of insured’s death that such amount was all insurer owed beneficiary, the beneficiary’s acceptance of such amount and delivery of policy to insurer and failure for six years to make inquiry as to circumstances of insured’s death, did not constitute “reasonable diligence” to determine cause of insured’s death so as to toll limitations until discovery of true facts. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

Orders for funeral supplies setting forth description of goods purchased, price, and terms of sale, held “contracts provable by writing” upon acceptance by seller, so that action thereon, which was commenced within six years from maturity of items, was not barred by statute of limitations governing contracts not provable by writing. Champion Chemical Co. v. Hank, 174 Miss. 732, 165 So. 807, 1936 Miss. LEXIS 224 (Miss. 1936).

Advances of money and supplies made by lessor to lessee constitute an “open account” so as to require action thereon within three years after cause of action accrued, notwithstanding deed of trust given by lessee provided that advancements should be secured by deed, since writing was insufficient to make debt one acknowledged in writing under six-year statute of limitations. Blount v. Miller, 172 Miss. 492, 160 So. 598, 1935 Miss. LEXIS 157 (Miss. 1935).

Vendee’s suit to recover money paid under oral contract of sale held governed by six-year limitation, in view of receipts setting out amounts received on account of the purchase price, which constituted sufficient acknowledgment in writing of a state of facts out of which the law implies an obligation to repay, and therefore obligation to repay did not rest in parole. Milam v. Paxton, 160 Miss. 562, 134 So. 171, 1931 Miss. LEXIS 194 (Miss. 1931).

Where devisees are each required to deliver to widow one bale of cotton annually, bequest to widow is not a trust, and action for failure to deliver cotton is governed by 6-year statute of limitations, since the implied promise of each of the devisees to deliver one bale of cotton is to perform a contract, the terms of which are contained in the will, a written instrument. Roberts v. Burwell, 117 Miss. 451, 78 So. 357, 1918 Miss. LEXIS 190 (Miss. 1918).

6. Deeds of trust.

Where in 1931 a deed of trust on certain land was issued to a bank as security for a loan, and later that land was sold at a tax sale and not redeemed, in 1939 the bank’s remedy at law to recover the debt was barred by statute of limitations and direct remedy in equity was likewise barred. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

This section [Code 1942, § 722] providing for six-year limitation period when no other period is prescribed, Code 1942, § 719, barring action on mortgage when debt it secures is barred and Code 1942, § 743, providing that completion of period of limitation bars action and defeats and extinguishes right, operate to extinguish on September 1, 1935, deed of trust given to secure note falling due on September 1, 1929, and, in absence of renewal, or institution of foreclosure proceedings, power of sale and all other rights conferred by deed of trust are utterly destroyed on that date. Perkins v. White, 208 Miss. 157, 43 So. 2d 897, 1950 Miss. LEXIS 237 (Miss. 1950).

Where trust deed to farm was executed by all of heirs except children of deceased daughter, and part of money advanced was used to discharge ancestor’s trust deeds, right of assignee of trust deed to subrogation to trust deed as to grandchildren’s undivided interest was barred by six-year limitation, notwithstanding mortgagors’ alleged fraudulent representation that grandchildren were not heirs, where grandchildren did not participate in fraud, and not being joint tenants, but tenants in common with mortgagors, were not their “privies;” term “privies” meaning those who stand in mutual or successive relationship to same rights of property. Burton v. John Hancock Mut. Life Ins. Co., 171 Miss. 596, 157 So. 525, 158 So. 474, 1934 Miss. LEXIS 243 (Miss. 1934).

7. Covenants and conditions.

Where second deed is made to correct first deed, six-year statute against action on warranty begins to run from date of second deed. Wade v. Barlow, 99 Miss. 33, 54 So. 662, 1910 Miss. LEXIS 10 (Miss. 1910).

Where a vendor sells for part cash and part to be paid in installments, reserving a lien as security, the six-year limitation applies whether he proceeds on the promise contained in the deed or that implied by law from the vendee’s acceptance of the deed. Washington v. Soria, 73 Miss. 665, 19 So. 485, 1896 Miss. LEXIS 190 (Miss. 1896).

8. Demands for rent.

The six years’ statute applies to the demand for rents asserted by a plaintiff in ejectment. Lindenmayer v. Gunst, 70 Miss. 693, 13 So. 252, 1893 Miss. LEXIS 61 (Miss. 1893).

9. Bills and notes, generally.

Code §15-1-49, rather than §15-1-23, applied in an action by a bank for a deficiency judgment on an instrument guaranteeing payment of a secured note. First Nat'l Bank v. Drummond, 686 F.2d 1117, 1982 U.S. App. LEXIS 25292 (5th Cir. Miss. 1982).

The statute of limitations began to run as to each instalment due under the note from the time it falls due. Davis v. Agents Finance Corp., 249 Miss. 839, 164 So. 2d 449, 1964 Miss. LEXIS 439 (Miss. 1964).

Note which fell due on September 1, 1929, became barred by limitation under this section [Code 1942, § 722] upon expiration of six years thereafter, or on September 1, 1935. Perkins v. White, 208 Miss. 157, 43 So. 2d 897, 1950 Miss. LEXIS 237 (Miss. 1950).

This section [Code 1942, § 722] prescribes the period of limitation within which actions on promissory notes shall be commenced, as being six years next after the cause of action shall have accrued thereon. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

Mississippi statute of limitations controls in action in this state on note executed in Canada. Philp v. Hicks, 112 Miss. 581, 73 So. 610, 1916 Miss. LEXIS 150 (Miss. 1916).

Where bank paid check to person other than drawer, under belief indorsement was genuine, six-year statute was applicable and began to run from date bank rendered drawer a statement showing check charged against it. Masonic Ben. Ass'n v. First State Bank, 99 Miss. 610, 55 So. 408, 1911 Miss. LEXIS 232 (Miss. 1911).

The statute bars a note made in another state where the limit is ten years, although both maker and payee resided there at the time and the maker did not become a resident of this state until nearly six years after maturity. Wright v. Mordaunt, 77 Miss. 537, 27 So. 640, 1899 Miss. LEXIS 97 (Miss. 1899).

10. —Payable in installments.

Judgment for real estate seller was affirmed under Miss. Code Ann. §15-1-29 and Miss. Code Ann. §15-1-49 because, applying the three-year statute of limitations, the seller was entitled to collect installment payments beginning three years ago; the purchasers would have been unjustly enriched if allowed to retain possession of the property without being responsible for the remaining debt. Kersey v. Fernald, 911 So. 2d 994, 2005 Miss. App. LEXIS 699 (Miss. Ct. App. 2005).

Notwithstanding some evidence that the note sued on was a demand note, due three days after date, the chancellor was not manifestly wrong in holding that the note was in fact payable in installments, and was not barred by the statute of limitations, in view of the admission in the trust deed that the indebtedness was evidenced by promissory note payable in installments, and all the evidence and circumstances in the record showed that the note was in fact paid in installments. Davis v. Agents Finance Corp., 249 Miss. 839, 164 So. 2d 449, 1964 Miss. LEXIS 439 (Miss. 1964).

Generally where a note is payable in installments the statute of limitations begins to run as to each installment from the time when it falls due. Freeman v. Truitt, 238 Miss. 623, 119 So. 2d 765, 1960 Miss. LEXIS 447 (Miss. 1960).

11. —Payable on demand.

The statute of limitations set forth in this section [Code 1942, § 722] began running on a demand promissory note on the date of its execution, unaffected by any clause therein providing for the payment of interest at a certain percentage per annum until paid. United States Fidelity & Guaranty Co. v. Krebs, 190 So. 2d 857, 1966 Miss. LEXIS 1405 (Miss. 1966).

A promissory note, payable on demand after date with interest at rate of six per cent from date until paid, when considered together with deed of trust and with written agreement contemporaneously executed and delivered to payee, showed an intent that demand for payment be condition precedent to maturity of note and commencement of running of statute of limitations. Belhaven College v. Downing, 216 Miss. 299, 62 So. 2d 372, 1953 Miss. LEXIS 637 (Miss. 1953).

12. —Particular cases.

In a discriminatory lending suit filed by African American loan recipients against an auto financing corporation, the loan recipients’ state law deceptive trade practices and common law claims were barred by the three-year statute of limitations in Miss. Code Ann. §15-1-49(1), which was not tolled by the fraudulent concealment rule codified in Miss. Code Ann. §15-1-67 because the loan recipients admitted that they knew the interest rates were high at the time they signed the loan documents, which clearly displayed the rates being charged. Archer v. Nissan Motor Acceptance Corp., 633 F. Supp. 2d 259, 2007 U.S. Dist. LEXIS 65570 (S.D. Miss. 2007), aff'd, 550 F.3d 506, 2008 U.S. App. LEXIS 25292 (5th Cir. Miss. 2008).

Holder was properly granted summary judgment because its 2005 action to recover funds due under the maker’s promissory note, which was dated on September 7, 1999, was timely filed under the six-year statute of limitations in Miss. Code Ann. §75-3-118(a), and the general three-year limitations period in Miss. Code Ann. §15-1-49 did not apply. Jordan v. BancorpSouth Bank, 964 So. 2d 1205, 2007 Miss. App. LEXIS 603 (Miss. Ct. App. 2007).

In rejecting the argument that two loan officers were fraudulently joined to defeat diversity jurisdiction based on the statute of limitations, the court found that at least one of the loans at issue was not barred by the three year limitations period under Miss. Code Ann. §15-1-49. Clark v. Ben. Miss., Inc., 280 F. Supp. 2d 570, 2003 U.S. Dist. LEXIS 16163 (S.D. Miss. 2003).

An agreement extending the maturity date of a promissory note was not void on the ground that the plaintiff, seeking a cancelation of a deed of trust securing such note, had signed it only after a casual reading thereof and that it did not reflect his intention, so as to make applicable the six-year statute of limitations. Alliance Trust Co. v. Armstrong, 185 Miss. 148, 186 So. 633, 1939 Miss. LEXIS 116 (Miss. 1939).

This section [Code 1942, § 722] was not applicable to a suit in chancery brought by a bank to confirm its title to real estate and to cancel the former owner’s claim to the land after it had previously foreclosed the deed of trust on such land for default in payment of a note secured thereby and had become the purchaser of the land at foreclosure sale, notwithstanding that the suit was brought more than six years after the due date of the note, where the Chancellor held the foreclosure sale to be valid and did not grant the bank’s alternative prayer for a further foreclosure if such foreclosure sale was valid, since if such sale was valid the purchaser was entitled to the relief granted at any date subsequent to the sale unless such relief should have become barred by some limitation of adverse possession. Anthony v. Bank of Wiggins, 183 Miss. 885, 184 So. 626, 1938 Miss. LEXIS 302 (Miss. 1938).

This section [Code 1942, § 722] of the statute is not applicable to a situation where a donor delivered certain promissory notes secured by mortgage to a bank in trust for certain beneficiaries and, the bank being incapable of performing the trust, the donor assumed control of such notes for the benefit of the beneficiaries and through his unauthorized act the notes became valueless giving rise to an action against his executor, since there existed a trust in regard to the notes and their intended security not cognizable by the courts of the common law within the purview of the ten-year statute of limitations. Yandell v. Wilson, 182 Miss. 867, 183 So. 382, 1938 Miss. LEXIS 202 (Miss. 1938).

Where note secured by deed of trust was extended from time to time, but fact of extensions was not noted on margin of record of deed of trust before remedy to enforce it appeared on face of record to be barred, or within six months thereafter, such extensions did not affect rights of subsequent purchasers for valuable consideration without notice of extensions. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

13. County and municipal obligations.

A cause of action against four highway patrolmen and their surety, alleging that the plaintiff had been beaten and abused by the highway patrolmen, was essentially an action against a public officer and the surety on his bond, was accordingly an action in contract, and was governed by the six year statutory limitation for written contracts, §15-1-49, and not the one year statutory limitation period for tort actions, §15-1-35. Shaw v. McCorkle, 537 F.2d 1289, 1976 U.S. App. LEXIS 7343 (5th Cir. Miss. 1976).

The dismissal by a former sheriff and tax collector of his action against the county for compensation for alleged services did not destroy the right of his assignee, who was to obtain a portion of any recovery, and since the assignee’s right was dependent upon the right of his assignor, assignee’s action should have been brought within six years from the date of the expiration of the term of office of the former sheriff and tax collector, and, where it was not, the claim was barred. Smith v. Copiah County, 232 Miss. 838, 100 So. 2d 614, 1958 Miss. LEXIS 337 (Miss. 1958).

Ex-sheriff’s claim for additional fees for summoning jurors in circuit court and for other services rendered and not otherwise provided for in connection with said court during year 1940 is barred by six-year statute of limitations when his declaration is filed on August 18, 1947. Forrest County v. Thompson, 204 Miss. 628, 37 So. 2d 787, 1948 Miss. LEXIS 395 (Miss. 1948).

The six-year statute of limitations was applicable to the right of a teacher in an agricultural high school to demand payment of salary from the proceeds of bonds to be issued by the county and to compel issuance of such bonds by mandamus upon failure of the board of supervisors (which was not shown to have ever been advised of the existence of the obligation until suit was filed), otherwise to do so. Fuqua v. Board of Supervisors, 192 Miss. 6, 4 So. 2d 350, 1941 Miss. LEXIS 7 (Miss. 1941).

Action by heirs of tax collector for commissions, brought within six years after filing and rejection of claim by supervisors, but more than six years after right to file claim accrued, held barred by limitations, in absence of showing that heirs had been legally restrained. Grenada County v. Nason, 174 Miss. 725, 165 So. 811, 1936 Miss. LEXIS 226 (Miss. 1936).

Six-year statute of limitation held applicable to claim of county clerk for balance of salary alleged to be due him. De Soto County v. Wood, 150 Miss. 432, 116 So. 738, 1928 Miss. LEXIS 141 (Miss. 1928).

Claim of member of board of supervisors for compensation is barred by six-year and not three-year statute. Madison County v. Collier, 79 Miss. 220, 87 Miss. 204, 30 So. 610 (Miss. 1905).

A claim against a county will be barred where an action is not brought thereon within six years after it is rejected by the commissioners. Honea v. Board of Sup'Rs., 15 So. 789 (Miss. 1894).

14. Judgments.

The statute applies to a divorced wife’s suit for property awarded to her by the divorce decree. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

This statute [Code 1942, § 722] applies to an action to recover damages for failure to turn over property as directed by a decree of divorce. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534, 1961 Miss. LEXIS 548 (Miss. 1961).

A suit upon a judgment within the statutory period is the only means by which the lien of the judgment can be extended. Street v. Smith, 85 Miss. 359, 37 So. 837, 1904 Miss. LEXIS 159 (Miss. 1904).

In case of a recovery in an action by an assignee of a judgment to renew the same the judgment roll need not show the assignment or that the new judgment was based on the assigned one. Street v. Smith, 85 Miss. 359, 37 So. 837, 1904 Miss. LEXIS 159 (Miss. 1904).

A judgment by default was taken, shown by the record to be void, the defendant not being summoned, and the case went off the docket. Eleven years thereafter plaintiff, treating the suit as pending, had the defendant summoned. Held, that as the original cause of action was barred, and the judgment, if valid, was also barred, defendant was protected by the statute. Berkson v. Coen, 71 Miss. 650, 16 So. 204, 1893 Miss. LEXIS 110 (Miss. 1893).

15. Torts, generally.

Trial court properly granted summary judgment in favor of a school and its team doctor as to alumni’s claims of invasion of privacy because there was no evidence that the dean of schools watched the alumni while they showered in his home, and thus, there also was no evidence of a latent injury; without a latent injury, the statute of limitations wa not tolled, and the alumni’s claims were time-barred. Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Discovery rule did not toll the statute of limitations for alumni’s claims for invasion of privacy because there was nothing secretive about the monitoring process of drug screens or physicals; all students were aware that they were being monitored by the dean of schools or other male teachers/coaches while specimens were being collected and that physicals were being performed by the dean or the team doctor while the students were undressed. Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Because alumni were unable to prove a latent injury, all battery claims were barred by the one-year statute of limitations; the discovery rule did not apply because the alumni admittedly were aware of the touching when it occurred ,and the only new information was the public knowledge of the dean’s actions as to the three students who caught him viewing them while showering and his designation as a pedophile. Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Trial court properly granted summary judgment in favor of a school and its team doctor because all alleged intentional torts occurred more than one year prior to alumni filing suit; the discovery rule did not apply because the alumni could not allege a claim of latent injury. Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Trial court properly denied an employer’s motion for summary judgment because, while there were components of a contractual relationship, an employee’s wrongful discharge claim remained a tort and tort principles, including the three-year statute of limitations, applied where the employee’s public policy-based retaliatory discharge claim was based in tort and the employer’s duty not to retaliate against the employee for reporting suspected patient abuse. Cmty. Care Ctr. of Aberdeen v. Barrentine, 160 So.3d 216, 2015 Miss. LEXIS 148 (Miss. 2015).

Death row inmates were not entitled to have the three-year statute of limitations for personal injury actions in Miss. Code Ann. §15-1-49 tolled based upon fraudulent concealment under Miss. Code Ann. §15-1-67 because there was no evidence that the State affirmatively concealed its protocol governing the manner in which it carried out executions or that the inmates did not know that a 42 U.S.C.S. § 1983 action was the proper method for challenging the State’s lethal injection protocol. Walker v. Epps, 587 F. Supp. 2d 763, 2008 U.S. Dist. LEXIS 53793 (N.D. Miss.), aff'd, 550 F.3d 407, 2008 U.S. App. LEXIS 25327 (5th Cir. Miss. 2008).

Trial court properly granted summary judgment in favor of county hospital where an individual did not file suit against the hospital until more than two years after tripping on its sidewalk; the hospital’s contract with a private management company to run the hospital did not exempt it from the Mississippi Tort Claims Act. Thus, the one year statute of limitations in Miss. Code Ann. §11-46-11, and the not the three year statute of limitations in Miss. Code Ann. §15-1-49, applied. Allstadt v. Baptist Mem. Hosp., 2004 Miss. App. LEXIS 847 (Miss. Ct. App. Aug. 24, 2004), op. withdrawn, sub. op., 893 So. 2d 1083, 2005 Miss. App. LEXIS 133 (Miss. Ct. App. 2005).

Mississippi follows general rule that tortious act gives rise to but single cause of action. Kemp v. G.D. Searle & Co., 103 F.3d 405, 1997 U.S. App. LEXIS 190 (5th Cir. Miss. 1997).

Tort actions arising from contractual obligations should be controlled by and subject to the tort prescriptions of §15-1-49. Trammell v. State, 622 So. 2d 1257, 1993 Miss. LEXIS 328 (Miss. 1993).

Wrongful or fraudulent foreclosure of property action is case action governed by 6 year statute of limitations (§15-1-49), not by one year statute of limitations applicable to specified intentional torts (§15-1-35). Southern Land & Resources Co. v. Dobbs, 467 So. 2d 652, 1985 Miss. LEXIS 2019 (Miss. 1985).

Where the action was one either in tort or for a wrongful breach of duty in a suit on a letter agreement, the three-year limitations statute applicable to open accounts did not apply, and the action was governed by the six-year statute of limitations. Bentz v. Vardaman Mfg. Co., 210 So. 2d 35, 1968 Miss. LEXIS 1491 (Miss. 1968).

16. —Contracts.

All of the growers were aware of the matters that were allegedly misrepresented to them by the farm well in excess of three years before the suits were filed; therefore, Miss. Code Ann. §15-1-49 operated to bar the growers’ claims. Sanderson Farms, Inc. (Prod. Div.) v. Ballard, 917 So. 2d 783, 2005 Miss. LEXIS 660 (Miss. 2005).

Trial court’s 1994 order of dismissal without prejudice was not a judgment or decree and not subject to the seven-year statute of limitations under Miss. Code Ann. §15-1-43; instead subcontractor’s claims were subject to the three-year statute of limitations under Miss. Code Ann. §15-1-49, and were thus time-barred because they were not filed within three years after the date of the order of dismissal. Haycraft v. Mid-State Constr. Co., 915 So. 2d 1117, 2005 Miss. App. LEXIS 1000 (Miss. Ct. App. 2005).

A bad faith breach of contract cause of action arising from an attorney’s alleged failure to properly pursue an appeal alleged the tort of bad faith, not a breach of contract per se, and was therefore governed by the 6-year general limitation in §15-1-49 rather than the 3-year statute of limitations in §15-1-29 for actions based on unwritten contracts. Hurst v. Southwest Miss. Legal Servs. Corp., 610 So. 2d 374, 1992 Miss. LEXIS 751 (Miss. 1992), overruled, Rains v. Gardner, 731 So. 2d 1192, 1999 Miss. LEXIS 47 (Miss. 1999).

17. — Personal injuries.

Motorist was in the truck, in front of the driver, in plain view and within earshot of his pleas to exit the vehicle to talk, and he testified multiple times that the motorist meant to hit him with his truck; this amounted to definitive, uncontested evidence that served to defeat the driver’s requested recovery and barred his claims under the statute. Sanderson Farms, Inc. v. McCullough, 212 So.3d 69, 2017 Miss. LEXIS 39 (Miss. 2017).

Circuit court properly denied summary judgment with respect to the homeowners’ personal injury claims against the property manager and homeowners’ association where the determination of the time at which one homeowner knew or by reasonable diligence should have known of his bronchiectasis was a fact question that had to be resolved by a jury, and thus, a genuine issue of fact existed as to whether the homeowners were within the three-year statute of limitations when they filed their complaint. Ridgway Lane & Assocs. v. Watson, 189 So.3d 626, 2016 Miss. LEXIS 98 (Miss. 2016).

Summary judgment was properly granted to the owner of man buggy that was involved in an accident, because the applicable statute of limitations had run, and the owner was not properly substituted for a fictitious party into the accident victim’s complaint, as the victim possessed enough information to determine the legal entity that owned the buggy, given that the owner’s label was on the buggy. The amendment by the victim to add the owner as a party did not relate back to the filing of the complaint because the victim failed to establish that the victim utilized reasonable diligence to timely identify the owner as a fictitious party. Davenport v. Hertz Equip. Rental Corp., 187 So.3d 194, 2016 Miss. App. LEXIS 112 (Miss. Ct. App. 2016).

Trial court properly granted summary judgment in favor of a school and its team doctor because alumni’s negligence and breach-of-contract claims were time-barred; because all of the alumni testified that they were not injured while they were students at the school, they could not claim a latent injury invoked the discovery rule, and if the alumni could not prove a latent injury, there was no tolling of the statutes of limitation. Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Mother’s motion to amend her complaint under Fed. R. Civ. P. 60 to add a medical retail store as a defendant in her action seeking damages for her son’s injury in a wheelchair was denied because the mother voluntarily dismissed the store under Fed. R. Civ. P. 41(a)(2), the statute of limitations of Miss. Code Ann. §15-1-49 had expired, and the court failed to perceive any legitimate basis for the mother’s insistence that she was duped into believing that she had purchased the wheelchair by the “innocent seller” arguments of the store and the wheelchair’s manufacturer under Miss. Code Ann. §11-1-63. Braswell v. Invacare Corp., 760 F. Supp. 2d 679, 2010 U.S. Dist. LEXIS 140025 (S.D. Miss. 2010).

In a son’s negligence action seeking damages for personal injuries from his father, the father was deemed to have waived his right to assert insufficiency of process due to the son’s failure to serve process on the father until nine months after the expiration of the 120-day period in Miss. R. Civ. P. 4(h) where the father asserted insufficient service as a defense in his answer but then proceeded to participate in discovery, engage in settlement talks, and notice the son’s deposition over the next two years and did not raise the service of process issue again until the three-year statute of limitations in Miss. Code Ann. §15-1-49 expired. Whitten v. Whitten, 956 So. 2d 1093, 2007 Miss. App. LEXIS 356 (Miss. Ct. App. 2007).

In a personal injury case removed from state court, a company’s motion to dismiss was granted because the company was not served within the 120-day period provided for by Miss. R. Civ. P. 4(h), and the worker failed to re-file his complaint within the three-year period provided for in Miss. Code. Ann. §15-1-49(1). Riley v. Ga. Pac. Corp., 2006 U.S. Dist. LEXIS 1626 (N.D. Miss. Jan. 5, 2006).

Discovery rule did not apply where the acts of abuse alleged by the victim were physical acts of which a person was generally aware when the event occurred; the victim was aware of the abuse at the time of its occurrence, and whether or not the victim was mentally capable of understanding the physical acts she endured when they occurred was not the critical inquiry with the discovery rule. Doe v. Roman Catholic Diocese, 947 So. 2d 983, 2006 Miss. App. LEXIS 435 (Miss. Ct. App. 2006), cert. denied, 2007 Miss. LEXIS 90 (Miss. Jan. 25, 2007).

This section applied to an action for injuries sustained by a darkroom technician caused by exposure to toxic chemicals. Cannon v. Mid-South X-Ray Co., 738 So. 2d 274, 1999 Miss. App. LEXIS 72 (Miss. Ct. App. 1999).

Under Mississippi law, recipient of intrauterine device had single cause of action which accrued when she discovered her pelvic inflammatory disease and its source, notwithstanding her attempt to characterize her subsequently diagnosed infertility as separate injury for accrual purposes. Kemp v. G.D. Searle & Co., 103 F.3d 405, 1997 U.S. App. LEXIS 190 (5th Cir. Miss. 1997).

In a personal injury action against a city and city officials, the 6-year statute of limitations set forth in §15-1-49, rather than the 2-year statute of limitations set forth in §11-46-11(3) of the Tort Claims Act, applied since the Tort Claims Act had not yet taken effect. Starnes v. Vardaman, 580 So. 2d 733, 1991 Miss. LEXIS 312 (Miss. 1991).

A claim seeking damages for personal injuries was not barred by §15-1-49, where the six-year statute of limitations expired on Sunday and the claim was filed on the following Monday. Nelson v. James, 435 So. 2d 1189, 1983 Miss. LEXIS 2787 (Miss. 1983).

Plaintiff injured on drilling platform located on the outer continental shelf offshore of the coast of Louisiana cannot take advantage of Mississippi’s 6-year limitations period by filing his personal injury action under the Outer Continental Shelf Land Act (43 USCS § 1331 et seq.) in Mississippi; the Act itself provides that the civil and criminal laws of the adjacent state apply. Bonner v. Chevron U.S.A., Inc., 512 F. Supp. 1313, 1981 U.S. Dist. LEXIS 11962 (S.D. Miss. 1981), aff'd, 668 F.2d 817, 1982 U.S. App. LEXIS 21588 (5th Cir. Miss. 1982).

This section is applicable to strict products liability in tort actions and, in personal injury actions, the statute begins to run from the time that injuries are sustained. Ford Motor Co. v. Broadway, 374 So. 2d 207, 1979 Miss. LEXIS 2224 (Miss. 1979).

Where a Tennessee resident, employed in that state and covered under its workmen’s compensation laws, was injured in an automobile collision occurring in Mississippi and filed a third-party diversity action in Mississippi to recover his damages, the Mississippi six-year statute of limitations was controlling rather than the 18-month limitation imposed on third party actions by the Tennessee workmen’s compensation law. Graham v. Red Ball Motor Freight, Inc., 262 F. Supp. 49, 1966 U.S. Dist. LEXIS 7485 (N.D. Miss. 1966).

18. —Wrongful death.

Plaintiff’s father fell and sustained a head injury on December 19, 2007, and any survival claims accrued at that time; the remaining wrongful-death claims accrued when the father died on January 5, 2008, and the three-year catch-all statute of limitations applied. Patel v. Hill-Rom Co., 194 So.3d 898, 2016 Miss. App. LEXIS 432 (Miss. Ct. App. 2016).

Administrator’s actions alleging wrongful death, intentional infliction of emotional distress, and civil conspiracy were all barred by the one-year statute of limitations, and the discovery rule did not apply because all three of these actions had prescribed limitations periods. Sharkey v. Barber, 188 So.3d 1245, 2016 Miss. App. LEXIS 73 (Miss. Ct. App. 2016).

Wrongful death case was not time barred under Miss. Code Ann. §15-1-49 because the savings provision in Miss. Code Ann. §15-1-69 applied since a voluntary dismissal without prejudice in federal court was considered a matter of form where it was based on subject matter jurisdiction. Several beneficiaries continually and in good faith sought to have the merits of their case heard in Mississippi state court, they sought a Fed. R. Civ. P. 54(b) certified judgment to challenge a federal district court’s subject matter jurisdiction, and they timely refiled their second cause of action within one year of the dismissal of the first case. Marshall v. Kan. City S. Rys., 7 So.3d 210, 2009 Miss. LEXIS 106 (Miss. 2009).

Miss. Code Ann. §11-7-13 wrongful-death claims of the wrongful-death beneficiaries matured–and Miss. Code. Ann. §15-1-49, the statute of limitations on those claims, began to run–on April 17, 2000, not because that was the day the decedent died, but rather because that was the first day (“if death had not ensued”) the decedent could have brought a claim. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

When a tortfeasor negligently injures someone and a claim arises, the injured party generally has three years to bring a claim, pursuant to Miss. Code. Ann. §15-1-49. If the injured party subsequently dies, the wrongful-death beneficiaries simply step into the shoes of the deceased person and may–assuming the deceased person brought no claim prior to death–bring claims the deceased person could have brought if death had not ensued. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Wrongful death claim against the corporations was time-barred and summary judgment was properly granted in favor of the corporations on the wife’s wrongful death claim where the statute of limitations expired before litigation commenced. May v. Pulmosan Safety Equip. Corp., 948 So. 2d 483, 2007 Miss. App. LEXIS 53 (Miss. Ct. App. 2007).

Under Miss. Code Ann. §11-7-13, wrongful death claims premised on negligence, strict liability, and breach of implied warranties were time-barred under the applicable three-year limitations period of Miss. Code Ann. §15-1-49, because the claims accrued at the time of diagnosis of the decedent’s latent disease and there were no allegations of a confidential or fiduciary relationship to establish a breach of duty of disclosure of toxic substances for a fraudulent concealment claim. Wells v. Radiator Specialty Co., 413 F. Supp. 2d 778, 2006 U.S. Dist. LEXIS 18082 (S.D. Miss. 2006).

In a wrongful death case, an amendment of a complaint under Miss. R. Civ. P. 15(c) was properly denied because the causes of action did not arise out of the same nucleus of common facts; one dealt with the design and manufacturing of a vehicle, while the other dealt with the failure to inspect and repair the vehicle before resale, and therefore, the statute of limitations had run on the proposed claim since relation back did not apply. Russell v. Ford Motor Co., 960 So. 2d 495, 2006 Miss. App. LEXIS 758 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 387 (Miss. 2007).

Personal representatives’ amended complaint against a convenience store in a wrongful death action was dismissed because the minor’s savings statute, Miss. Code Ann. §15-1-59, did not toll the general statute of limitations, Miss. Code Ann. §15-1-49, which otherwise barred the wrongful death claim against the convenience store. Anderson v. R & D Foods, Inc., 913 So. 2d 394, 2005 Miss. App. LEXIS 294 (Miss. Ct. App. 2005).

In November 1997, plaintiff brought suit for wrongful death, but the record reflected that she failed to properly serve process upon defendant within 120 days. Because process was not served within the 120-day period as provided by Miss. R. Civ. P. 4(h), the running of the statute of limitations resumed; further, the statute of limitations ran in March, 2000, some 14 months prior to defendant’s motion to dismiss and some 19 months prior to plaintiff’s filing of a second identical wrongful death action, and therefore, when plaintiff filed her second action, the three year statute of limitation set forth in Miss. Code Ann. §15-1-49 had run. Owens v. Mai, 891 So. 2d 220, 2005 Miss. LEXIS 18 (Miss. 2005).

Action for wrongful death brought by statutory heirs of decedent, alleging that decedent came into contact with toxic substances during his employment with defendant, resulting in his death, was time-barred where approximately 8 1/2 years elapsed between decedent’s death and filing of present action; negligence actions being governed by §15-1-49 (6 years), actions based on intentional infliction of emotional distress being controlled by §15-1-35 (one year), and breach of warranty actions governed by §75-2-725 (6 years), whether defendants’ acts were characterized as intentional or negligent, longest possible limitations period under Mississippi law would be 6 years. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

Addition to wrongful death complaint of allegation that bed sores contributed to decedent’s death did not constitute new cause of action and would not be barred by 6-year statute of limitations where 7 years had elapsed from time of decedent’s death to plaintiff’s seeking addition of allegation. Hurst v. Beverly Enterprises, 724 F. Supp. 437, 1989 U.S. Dist. LEXIS 13679 (S.D. Miss. 1989).

Factual allegation that bedsores contributed to nursing home patient’s death, which was added to complaint against nursing home more than 7 years after patient’s death, was not barred by 6-year statute of limitations where wrongful death action had been commenced within 6-year period. Hurst v. Beverly Enterprises, 724 F. Supp. 437, 1989 U.S. Dist. LEXIS 13679 (S.D. Miss. 1989).

Cause of action based upon wrongful death statute (§11-7-13), being predicated upon defendant’s intentional torts, is governed by one year statute of limitations, rather than 6 year statute of limitations, as actions filed pursuant to wrongful death statute must be brought within corresponding prescription statute for which cause of action is predicated. Veselits v. Veselits, 653 F. Supp. 1570, 1987 U.S. Dist. LEXIS 1348 (S.D. Miss.), aff'd, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

Prior to the enactment of §15-1-36 in 1976, a cause of action for the wrongful death of a child in a medical malpractice context accrued to its parents as of the date of the child’s death. Jackson-Hinds Bank v. Mid-South Pools, Ltd., 196 So. 2d 91, 1967 Miss. LEXIS 1478 (Miss. 1967).

19. —Infliction of emotional distress.

After an employee was terminated, and his employers refused to reimburse his expenses, his claims for negligent infliction of emotional distress and tortious interference with business relations were clearly not time-barred; however, the facts had to be more closely examined to determine whether the claims for defamation and intentional infliction of emotional distress were time-barred. Smith v. Antler Insanity, LLC, 58 F. Supp. 3d 716, 2014 U.S. Dist. LEXIS 152484 (S.D. Miss. 2014).

There was no error in dismissing a claim for negligent infliction of emotional distress because a complaint actually alleged a claim for intentional infliction of emotional distress, which was governed by a one-year statute of limitations. The complaint stated that a paramour’s acts were reckless and without justification, the acts of the paramour evoked outrage and disgust in civilized society, and the pattern of conduct perpetrated by the paramour caused foreseeable harm. Anderson v. Ladner, 198 So.3d 381, 2016 Miss. App. LEXIS 15 (Miss. Ct. App.), cert. denied, 202 So.3d 617, 2016 Miss. LEXIS 364 (Miss. 2016).

Dismissing a husband’s negligent infliction of emotional distress claim against his former wife as untimely was error as Miss. Code Ann. §15-1-49 (Rev. 2012) applied, and the claims were filed within the three-year period. Breeden v. Buchanan, 164 So.3d 1057, 2015 Miss. App. LEXIS 45 (Miss. Ct. App.), cert. denied, 160 So.3d 704, 2015 Miss. LEXIS 210 (Miss. 2015).

In Mississippi, the three year catch all statute of limitations found at Miss. Code Ann. §15-1-49 applies to claims for alienation of affection and negligent infliction of emotional distress. Bristow v. Baskerville, 2010 U.S. Dist. LEXIS 129131 (S.D. Miss. Dec. 6, 2010), vacated, 2011 U.S. Dist. LEXIS 41860 (S.D. Miss. Apr. 12, 2011).

In a Title VII racial discrimination case in which an employee’s claim for negligent infliction of emotional distress was not barred by the three-year limitation period in Miss. Code Ann. §15-1-49, the claim nonetheless failed since a claim for negligent infliction of emotional distress did not arise from acts of intentional discrimination. Furthermore, any state tort claim grounded in negligence asserted by the employee would be barred by the exclusive remedy provision of the Mississippi Workers’ Compensation Law. Fortenberry v. Gulf Coast Cmty. Action Agency, Inc., 2007 U.S. Dist. LEXIS 89831 (S.D. Miss. Dec. 5, 2007).

Where plaintiff’s claims for negligence, including her claim for negligent infliction of emotional distress, must have been filed with the court on or before July 30, 2002, in order to comply with the limitation period set forth in Miss. Code Ann. §15-1-49, plaintiff did not comply with the limitation period where plaintiff’s complaint was filed with the court on August 13, 2002. Therefore, unless the statute of limitations was tolled in some manner, plaintiff’s claims were time barred. Hampton v. Gannett Co., 296 F. Supp. 2d 716, 2003 U.S. Dist. LEXIS 22788 (S.D. Miss. 2003).

The statute of limitations applicable to intentional infliction of emotional distress is three years. Hubbard v. Miss. Conf. of the United Methodist Church, 138 F. Supp. 2d 780, 2001 U.S. Dist. LEXIS 5358 (S.D. Miss. 2001).

Causes of action for negligent infliction of emotional distress and negligently causing arrest of another are subject to 6-year statute of limitations rather than one-year statute of limitations, where causes of action do not charge intentional torts, and are more analagous to common law “case” actions than to trespass actions. King v. Otasco, Inc., 861 F.2d 438, 1988 U.S. App. LEXIS 16469 (5th Cir. Miss. 1988).

Tort of intentional infliction of emotional distress is of same type of tort as menace and therefore covered by one-year statute of limitations and not by residual 6 year statute of limitations. Guthrie v. J.C. Penney Co., 803 F.2d 202, 1986 U.S. App. LEXIS 32673 (5th Cir. Miss. 1986).

20. —Products liability.

Claimant’s lawsuit against a manufacturer, alleging an injury of lung disease and silica related conditions caused by exposure to respirable crystalline silica while using defective respirators made by the manufacturer, was time-barred because the claimant was aware of and sought treatment for lung disease more than three years before filing the lawsuit. The claimant’s experts opined that the claimant’s myriad of medical conditions, for which the claimant sought treatment years earlier, were related in part or exacerbated by silica exposure. Am. Optical Corp. v. Estate of Rankin, 227 So.3d 1062, 2017 Miss. LEXIS 190 (Miss. 2017).

Because all of plaintiff’s claims were premised upon unadorned conclusory allegation that defendant failed to follow Food and Drug Administration’s pre-approved manufacturing process for Class III medical device, plaintiff failed to articulate parallel state law claim, and thus, her claims were expressly and impliedly preempted pursuant to Medical Device Amendments of 1976 to Federal Food, Drug and Cosmetic Act; even if plaintiff’s claims were not preempted, her state law claims were barred by Mississippi’s three- and six-year statute of limitations, and plaintiff was not entitled to the benefit of discovery rule as plaintiff did not suffer latent injury. Williams v. CIBA Vision Corp., 100 F. Supp. 3d 585, 2015 U.S. Dist. LEXIS 56532 (S.D. Miss. 2015).

In a product liability suit, pursuant to Miss. R. Civ. P. 9(h) and 15(c)(2), a patient’s second amended complaint, which substituted a medical device manufacturer for an unknown defendant, related back to the date of the original complaint naming a fictitious defendant, and was thus timely under Miss. Code Ann. §15-1-49, because the patient made a reasonably diligent inquiry into the identity of the manufacturer where the suit was filed one day before the three-year limitations period in Miss. Code Ann. §15-1-49 expired; less than three months elapsed between when the hospital that used the device on the patient supplied an erroneous manufacturer’s name and when the patient sought to substitute that manufacturer’s name for the fictitious party designation; and the patient sought to substitute the correct manufacturer for the first manufacturer within three weeks after learning that the manufacturer had actually made the device. Scoggins v. Boston Sci. Corp., 2008 U.S. Dist. LEXIS 35507 (N.D. Miss. Apr. 22, 2008).

In a case involving a dispute over an allegedly defective roof, summary judgment was properly granted in favor of several builders because the action was untimely; Miss. Code Ann. §11-1-63 and Miss. Code Ann. §15-1-49 did not apply because an improvement to real property was not a product. Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 2005 Miss. LEXIS 517 (Miss. 2005).

Trial court erred in denying the company summary judgment as the employee and the clinic knew or reasonably should have known of her exposure to paint fumes on the very night the exposure occurred; the statute of limitations, Miss. Code Ann. §15-1-49(2) barred the employee’s action against the company and summary judgment for the company was appropriate. PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47, 2005 Miss. LEXIS 513 (Miss. 2005).

Consumers’ motion to remand was granted because there was a possibility that the consumers could prevail in state court against defendant local retailers, who sold them the lead-based paint that allegedly caused them injury, since a cause of action might not have accrued until a physician diagnosed the problem and its cause under the applicable statute of limitations, Miss. Code Ann. §15-1-49, and therefore, the local retailers were not fraudulently joined and diversity was not complete. Jackson v. Phillips Bldg. Supply, 246 F. Supp. 2d 538, 2003 U.S. Dist. LEXIS 2544 (S.D. Miss. 2003).

Under Mississippi law, recipient of intrauterine device had single cause of action which accrued when she discovered her pelvic inflammatory disease and its source, notwithstanding her attempt to characterize her subsequently diagnosed infertility as separate injury for accrual purposes. Kemp v. G.D. Searle & Co., 103 F.3d 405, 1997 U.S. App. LEXIS 190 (5th Cir. Miss. 1997).

Under Mississippi law, cause of action for products liability accrues, and limitations period begins to run, when plaintiff can reasonably be held to have knowledge of injury or disease. Kemp v. G.D. Searle & Co., 103 F.3d 405, 1997 U.S. App. LEXIS 190 (5th Cir. Miss. 1997).

Under Mississippi law, general rule under accrual statute governing products liability claims is that time of discovery of injury is also time when statute of limitations begins to run. Kemp v. G.D. Searle & Co., 103 F.3d 405, 1997 U.S. App. LEXIS 190 (5th Cir. Miss. 1997).

Products liability action against manufacturer of drug stelazine was barred by 6-year statute of limitations in §15-1-49, where last incidence of prescription of drug and onset of symptoms of side-effect condition occurred more than 6 years prior to commencement of suit; statute of limitations was not tolled because there was no evidence of fraudulent concealment of the plaintiff’s condition. Lindley v. Hamilton, 883 F.2d 360, 1989 U.S. App. LEXIS 13873 (5th Cir. Miss. 1989).

This section governed the tort aspect of an action alleging that a television set malfunctioned, causing a fire that destroyed most of plaintiffs’ home, but was inapplicable to their breach of implied warranties claim; plaintiffs’ negligence and strict liability in tort claims were not time-barred under this section, even though the television set had been manufactured and sold more than six years before the action was commenced, where there was no showing that plaintiffs knew or should have known of the alleged defect prior to the fire and the statute of limitations thus did not begin to run until the date of the fire. Maly v. Magnavox Co., 460 F. Supp. 47, 1978 U.S. Dist. LEXIS 15359 (N.D. Miss. 1978).

Although it is the general rule that an action in tort accrues at the time of the wrongdoing or at the “time of delivery”; in a products liability action the 6-year-statute provided by § 722 accrues when the wrong is discovered or causes harm. Alabama G. S. R. Co. v. Allied Chemical Corp., 467 F.2d 679, 1972 U.S. App. LEXIS 7797 (5th Cir. Miss. 1972).

21. —Alienation of affections.

There was a genuine dispute of material fact about whether an alienation of affections case was time barred because it was unclear when a former wife’s affections were alienated; although the couple filed for divorce on May 27, 2010, they moved back in together in July 2010 as the wife recovered from surgery, during which time they allegedly cohabitated and engaged in sexual relations. The trial court failed to consider the sixty-day waiting period before an irreconcilable differences divorce became final, as well as the public policy underlying the waiting period, which sought to foster reconciliation. Anderson v. Ladner, 198 So.3d 381, 2016 Miss. App. LEXIS 15 (Miss. Ct. App.), cert. denied, 202 So.3d 617, 2016 Miss. LEXIS 364 (Miss. 2016).

While a husband’s claim for alienation of affection met the liberal notice-pleading requirements of Miss. R. Civ. P. 8(a), in that he set forth factual allegations respecting each material element of the claim, the claim was time-barred as it was not filed within the three-year period in Miss. Code Ann. §15-1-49 (Rev. 2003). Almost six years had passed between the date alleged in the complaint and the date that the husband filed his complaint. Carter v. Reddix, 115 So.3d 851, 2012 Miss. App. LEXIS 813 (Miss. Ct. App. 2012).

Summary judgment was properly granted to a paramour in a husband’s claim for alienation of affection, arising from the paramour’s affair with the husband’s wife, as the suit was not filed within three years of the latest accrual date, which was when the affair ended, pursuant to Miss. Code Ann. §15-1-49; further, the discovery rule under §15-1-49(2) or continuing tort doctrine were not applicable, as a phone call between the paramour and the wife did not constitute a latent injury or continuing conduct that tolled the limitations period. Fulkerson v. Odom, 53 So.3d 849, 2011 Miss. App. LEXIS 69 (Miss. Ct. App. 2011).

Remand was necessary in an alienation of affection case because the limited facts in the record made it impossible to determine if Mississippi or Tennessee law should have applied; the appellate court was also unable to determine when the cause of action accrued under the three-year statute of limitations in Miss. Code Ann. §15-1-49 since the affair had been over for several years when the husband had discovered it, the wife continued to reside in the marital home during the affair, and she continued a relationship with her husband, including having two other children, after the affair ended. Hancock v. Watson, 962 So. 2d 627, 2007 Miss. App. LEXIS 7 (Miss. Ct. App.), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 469 (Miss. 2007).

An action for alienation of affections was time-barred where (1) the claim accrued on November 4, 1994 when the husband, in open pursuit of a relationship with the defendant, moved out of the marital home and abandoned the marital relationship, and (2) the plaintiff filed her claim on December 2, 1997, approximately one month after the statute of limitations had run on the claim. Carr v. Carr, 784 So. 2d 227, 2000 Miss. App. LEXIS 496 (Miss. Ct. App. 2000).

Action for alienation of affections governed by 6-year statute. Brister v. Dunaway, 149 Miss. 5, 115 So. 36, 1927 Miss. LEXIS 105 (Miss. 1927).

22. —Actions for deceit.

Statute of limitations precluded a former client’s claims against an attorney for fraud, breach of contract, and legal malpractice because the statute of limitations began to run when the client sent a letter to the attorney terminating the attorney’s employment and on that same date received a copy of the employment contract which the client believed was altered. The complaint which the client filed with the Mississippi Bar did not toll the statute of limitations or require the client to exhaust administrative remedies before filing suit. Archer v. Creel, 217 So.3d 690, 2016 Miss. App. LEXIS 600 (Miss. Ct. App. 2016), cert. denied, 216 So.3d 1150, 2017 Miss. LEXIS 186 (Miss. 2017).

Where plaintiff borrowers alleged fraudulent and negligent inducement into purchasing credit insurance in connection with loans, but alleged no post-sale act concealing that arrangement subsequent to the loans, they were not entitled to tolling under Mississippi’s fraudulent concealment statute, Miss. Code Ann. §15-1-67, on the claims against defendant insurers, and all of the claims were time-barred under Miss. Code Ann. §15-1-49(1) because the last loan was dated September 15, 1999, and the action was not filed until December 28, 2002. Jones v. Life of the S. Ins. Corp., 2006 U.S. Dist. LEXIS 1414 (S.D. Miss. Jan. 4, 2006).

As all of plaintiffs’ claims regarding credit life insurance appeared to be based on alleged misconduct that occurred during the formation of the insurance contracts, the statute of limitation began to run on the dates on which the various agreements were signed, all of which occurred more than three years prior to the filing of the suit, and were thus time-barred by Miss. Code Ann. §15-1-49(1). Agnew v. Wash. Mut. Fin. Group, LLC, 244 F. Supp. 2d 672, 2003 U.S. Dist. LEXIS 7380 (N.D. Miss. 2003).

Trial court did not err in dismissing with prejudice a fraud and misrepresentation case against an insurer because the claim was barred by the six-year statute of limitations in Miss. Code Ann. § 722 (1972); the cause of action was not tolled by Miss. Code Ann. §15-1-67 because the insurer did nothing to prevent two insureds from discovering their cause of action. Stephens v. Equitable Life Assur. Soc'y of the United States, 850 So. 2d 78, 2003 Miss. LEXIS 117 (Miss. 2003).

The six-year statute of limitation applies to an action for deceit for a false representation as to the acreage or the number of feet in a tract of land sold. Dunn v. Dent, 169 Miss. 574, 153 So. 798, 1934 Miss. LEXIS 73 (Miss. 1934).

In suit by purchaser for false representations as to acreage of tract sold, evidence failed to establish that vendor fraudulently concealed false representations after sale, and hence suit begun more than seven years after sale was barred. Dunn v. Dent, 169 Miss. 574, 153 So. 798, 1934 Miss. LEXIS 73 (Miss. 1934).

23. —Damage to realty.

As the chancellor found that a homeowner’s widow first learned of a sinkhole that damaged their property less than three years before suit was filed, the chancellor did not manifestly err in finding that the complaint was timely filed under the discovery rule. Borne v. Estate of T. L. Carraway, 118 So.3d 571, 2013 Miss. LEXIS 373 (Miss. 2013).

Where the homeowners knew as of July 1999 that there was an injury to their property and that the association was responsible for at least part of the injury, but did not sue the association until September 2002, their claim was barred by the three-year statute of limitation in Miss. Code Ann. §15-1-49. Sims v. Bear Creek Water Ass'n, 923 So. 2d 230, 2005 Miss. App. LEXIS 580 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 149 (Miss. 2006).

Person who purchased property subsequent to the construction of a pipeline under a right-of-way agreement would not be entitled, under Mississippi law, to recover any damage for injury to the land by reason of the construction, with the exception that if the pipeline was constructed negligently, and as a proximate result of such negligent construction, such person suffered injuries after the purchase of the property, recovery could be had to the extent that the injury flowing from such negligent construction was not permanent but continuing, damages for which would not be barred by the statute of limitations. Michigan Wisconsin Pipeline Co. v. Moore, 319 F. Supp. 753, 1970 U.S. Dist. LEXIS 9306 (N.D. Miss. 1970).

Where some of the heirs had entered upon the land in 1942, tore down the house thereon and removed it from the tract of land owned by them, cut some of the timber and pulp wood from the land, which was hauled away and sold, the claim for the removal of the house and for cutting of the timber and pulp wood was barred by the statute of limitations. London v. Braxton, 233 Miss. 514, 102 So. 2d 683, 1953 Miss. LEXIS 713 (Miss. 1953).

Action for wrongful use and occupation of a river bank by a railroad company in transferring its trains across the river is governed by the six-year statute of limitations and not the three-year statute. Louisiana & M. R. T. Co. v. Long, 159 Miss. 654, 131 So. 84, 1930 Miss. LEXIS 358 (Miss. 1930).

Six-year statute applies to action for damages to real property caused by construction of railroad side track. Romano v. Yazoo & M. V. R. Co., 87 Miss. 721, 40 So. 150, 1905 Miss. LEXIS 182 (Miss. 1905).

24. —Malpractice.

Statute of limitations precluded a former client’s claims against an attorney for fraud, breach of contract, and legal malpractice because the statute of limitations began to run when the client sent a letter to the attorney terminating the attorney’s employment and on that same date received a copy of the employment contract which the client believed was altered. The complaint which the client filed with the Mississippi Bar did not toll the statute of limitations or require the client to exhaust administrative remedies before filing suit. Archer v. Creel, 217 So.3d 690, 2016 Miss. App. LEXIS 600 (Miss. Ct. App. 2016), cert. denied, 216 So.3d 1150, 2017 Miss. LEXIS 186 (Miss. 2017).

Legal malpractice claim based on representation before the Mississippi State Tax Commission was not time barred because, pursuant to the discovery rule, a one-sentence notification of a partial loss/partial win at an intermediate stage of an ongoing administrative appeal did not provide sufficient notice of possible malpractice. Donovan v. Burwell, 199 So.3d 725, 2016 Miss. App. LEXIS 10 (Miss. Ct. App.), cert. denied, 203 So.3d 596, 2016 Miss. LEXIS 389 (Miss. 2016).

Although plaintiff argued the statute of limitations did not commence until November 26, 2009, and, therefore, her medical malpractice lawsuit, which was filed on November 14, 2011, was timely, plaintiff knew or, by the exercise of reasonable diligence, should have known when she went to a hospital in August 2009, following her surgery the previous month, that there was a problem with the surgery, if indeed there was one, and plaintiff did not present any argument as to when the statute of limitations began to run. Therefore, the circuit court did not err in granting summary judgment in favor of defendants. Vick v. Brandon HMA, LLC, 167 So.3d 259, 2015 Miss. App. LEXIS 318 (Miss. Ct. App. 2015).

Circuit court properly dismissed a former client’s legal malpractice complaint as time-barred because any ill effects he experienced during the three years of litigation against his former attorney stemmed from his own failure to have him removed from the case where the former client could not waive his right to have the attorney disqualified and at the same time rely on the attorney’s continued adverse representation to toll the statute of limitations under the continuing tort doctrine, the attorney’s adverse representation was one overall breach, not a string of breaches each creating a separate cause of action, and the client waived his right to have the attorney disqualified by continuing with the litigation. Thomas v. Cook, 170 So.3d 1254, 2015 Miss. App. LEXIS 394 (Miss. Ct. App. 2015).

Circuit court properly granted the attorneys summary judgment on a client’s claim that he was not paid an agreed-to settlement amount where the client filed the claim more than three years after receiving the settlement check, he admitted that he was immediately aware of the shortfall, and thus, he failed to prove fraudulent concealment for purposes of tolling the limitations period. Pickett v. Gallagher, 159 So.3d 587, 2014 Miss. App. LEXIS 444 (Miss. Ct. App. 2014), cert. denied, 158 So.3d 1153, 2015 Miss. LEXIS 138 (Miss. 2015), cert. denied, — U.S. —, 136 S. Ct. 501, 193 L. Ed. 2d 399, 2015 U.S. LEXIS 7249 (U.S. 2015).

Although an oil company’s property became infested with alligators well outside the three-year limitations period for a private nuisance claim filed by the adjoining owners, a fact issue as to whether the infestation should have been discovered prior to the owners’ purchase of their property precluded summary judgment where: (1) the owners’ property was overgrown; (2) undergrowth could have concealed the alligators; and (3) alligator infestation was an unusual injury that did not put the owners’ on notice by an occasional sighting. Christmas v. Exxon Mobil Corp., 138 So.3d 168, 2013 Miss. App. LEXIS 301 (Miss. Ct. App. 2013), rev'd, 138 So.3d 123, 2014 Miss. LEXIS 244 (Miss. 2014).

Trial court determined that the stockholder knew or should have known of the attorney’s alleged legal malpractice on March 10, 2005, when he signed the 2005 buyout agreement. Thus, the three-year limitations period under Miss. Code Ann. §15-1-49 for filing a legal malpractice claim had expired before the stockholder’s complaint was filed on May 13, 2009; therefore, the trial court correctly found that the action was time-barred and correctly granted the attorney’s motion for summary judgment. Evans v. Howell, 121 So.3d 919, 2013 Miss. App. LEXIS 125 (Miss. Ct. App.), cert. denied, 121 So.3d 918, 2013 Miss. LEXIS 478 (Miss. 2013).

Where a client hired a law firm to pursue a medical malpractice claim on her behalf, where the law firm failed to effect service of process upon the health care provider and the suit was dismissed for lack of prosecution, where the client filed a legal malpractice claim against the law firm, and where the trial court granted summary judgment in favor of the law firm after finding that the client’s lawsuit was not timely filed pursuant to the three-year statute of limitations under Miss. Code Ann. §15-1-49, the reviewing court held that the evidence submitted on summary judgment raised a genuine issue of material fact regarding when the client knew or, with reasonable diligence, could have discovered the alleged legal malpractice. The law firm failed to communicate the lack of service, and the client presented evidence that she lacked actual knowledge of the alleged malpractice prior to her new counsel’s review of the case file; as such, summary judgment was improper. Bennett v. Hill-Boren P.C., 52 So.3d 364, 2011 Miss. LEXIS 63 (Miss. 2011).

Mississippi does not follow the continuous representation rule. Rather, the discovery rule is the proper test for deciding when the statute of limitations for a legal malpractice action begins to run. Bennett v. Hill-Boren P.C., 52 So.3d 364, 2011 Miss. LEXIS 63 (Miss. 2011).

Summary judgment was properly granted to the attorney on the client’s legal malpractice claim as it was time barred, Miss. Code Ann. §15-1-49; the seventy-one-day delay in raising the statute of limitations defense was not a substantial and unreasonable delay, and the client had a known injury as of May 23, 2002, and could pursue her claim without being directly told the attorney was negligent. Spann v. Diaz, 987 So. 2d 443, 2008 Miss. LEXIS 357 (Miss. 2008).

Where an employee killed co-workers after being referred to counseling by the employer and an employee assistance provider (EAP), the EAP was not entitled to summary judgment as to negligence claims because the statute of limitations for medical malpractice claims did not apply since the claims were for ordinary negligence, not medical malpractice; the residual three-year statute of limitations applied, and the suit was timely. Tanks v. NEAS, Inc., 519 F. Supp. 2d 645, 2007 U.S. Dist. LEXIS 70334 (S.D. Miss. 2007).

Although the statute of limitations was three years for a legal malpractice action, a client’s first complaint tolled the statute of limitations even though that complaint was not properly served, and a second complaint was subsequently filed. Parmley v. Pringle, 976 So. 2d 422, 2007 Miss. App. LEXIS 488 (Miss. Ct. App. 2008).

Two of clients’ malpractice claims against attorneys were barred by the statute of limitations, Miss. Code Ann. §15-1-49; however, the trial court had to determine on remand whether the other clients knew or should have known of alleged wrongdoing prior to January 1, 2001, and if so, their claims would also be time barred. Channel v. Loyacono, 954 So. 2d 415, 2007 Miss. LEXIS 223 (Miss. 2007).

In medical negligence cases, courts must focus their inquiry on when a patient, exercising reasonable diligence, should have first discovered the negligence, rather than the injury; therefore, summary judgment was properly granted to a doctor’s estate in a medical malpractice case based on the discovery rule under Miss. Code Ann. §15-1-36 since the patient was aware of an injury arising out of the prescription of certain drugs after his discharge from a hospital in 2001, and this discovery rule was different than the latent injury focus in Miss. Code Ann. §15-1-49. Sutherland v. Estate of Ritter, 959 So. 2d 1004, 2007 Miss. LEXIS 226 (Miss. 2007).

In a legal malpractice case brought by a client against his attorney, the trial court properly applied the three-year statute of limitations under Miss. Code Ann. §15-1-49; the statute of limitations began to run when the client became aware of the attorney’s alleged misrepresentation, not when the client’s conviction was invalidated. Stringer v. Lowe, 955 So. 2d 381, 2006 Miss. App. LEXIS 819 (Miss. Ct. App. 2006), cert. denied, 956 So. 2d 228, 2007 Miss. LEXIS 266 (Miss. 2007), cert. denied, 552 U.S. 860, 128 S. Ct. 143, 169 L. Ed. 2d 98, 2007 U.S. LEXIS 9354 (U.S. 2007).

Court properly dismissed a client’s legal malpractice action as barred by the three-year statute of limitation because the client, who was incarcerated due to the attorney’s failure to file an accounting, should have known of his deficient performance when she terminated him. Champluvier v. Beck, 909 So. 2d 1061, 2004 Miss. LEXIS 1457 (Miss. 2004).

Grant of summary judgment in favor of the attorneys in the client’s legal malpractice action was proper where the three-year statute of limitations began to run in 1995; thus, the 2001 action was time-barred. Hymes v. McIlwain, 856 So. 2d 416, 2003 Miss. App. LEXIS 250 (Miss. Ct. App. 2003), overruled, Trigg v. Farese, 266 So.3d 611, 2018 Miss. LEXIS 469 (Miss. 2018).

The six-year statute of limitations contained in this section does not apply to an action for medical malpractice; instead, the two-year statute of limitations contained in §15-1-36 applies to such an action. Goleman v. Orgler, 771 So. 2d 374, 2000 Miss. App. LEXIS 253 (Miss. Ct. App. 2000).

In a legal malpractice action arising from an attorney’s failure to record a trust, the attorney’s continued representation of the client on matters other than the failed trust did not toll the running of the limitations period. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

The discovery rule applies in medical malpractice cases involving latent injuries and diseases. Williams v. Kilgore, 618 So. 2d 51, 1992 Miss. LEXIS 787 (Miss. 1992).

A cause of action for medical malpractice involving negligence which occurred in 1964 but was not discovered until 1985 was not time-barred by either §15-1-36 or §15-1-49 where the complaint was filed within 2 years of the discovery of the injury. Williams v. Kilgore, 618 So. 2d 51, 1992 Miss. LEXIS 787 (Miss. 1992).

The 2-year statute of limitations set forth in §15-1-36, rather than the general 6-year limitation period of §15-1-49, applied to a medical malpractice action against a nurse and a company that supplied nursing personnel, where the company’s sole basis for liability was the fact that it was the nurse’s employer; since §15-1-36 specifically names nurses among those covered and the company’s liability was predicated solely upon the doctrine of respondeat superior, the bar of the suit against the nurse likewise barred the action as to the company. Under §15-1-3, §15-1-36 barred both the right of action against the nurse and the company and also barred any remedy against both parties. Lowery v. Statewide Healthcare Service, Inc., 585 So. 2d 778, 1991 Miss. LEXIS 651 (Miss. 1991).

Medical malpractice action was not barred by statute of limitations where alleged negligent act occurred on June 28, 1974, foreign object was discovered in lining of patient’s heart on June 21, 1982, and action was filed on June 14, 1984, because enactment of specific statute of limitations, §15-1-36, dealing with malpractice tort claims, controlled over general statute, §15-1-49; specific statute defined date of accrual of action as being date of alleged act, omission, or neglect, or date injury would or with reasonable diligence might have been first known or discovered, and provided that it applied to claims which accrued on or after July 1, 1976; fact that different definition of accrual may have been accepted with respect to general 6-year statute of limitations was beside point, because that definition had been superseded by specific statute of limitations. Kilgore v. Barnes, 508 So. 2d 1042, 1987 Miss. LEXIS 2448 (Miss. 1987).

In legal malpractice action against attorney who delayed in asserting federal tort claim until relevant limitations period had expired, fact that claim arose by virtue of oral contract securing attorney’s services did not preclude application of 6 year statute of limitations governing torts, rather than 3 year statute of limitations governing contracts. Hickox ex rel. Hickox v. Holleman, 502 So. 2d 626, 1987 Miss. LEXIS 2282 (Miss. 1987).

Interlocutory appeal from the circuit court would be granted to determine whether the 6 year statute of limitations provided by Mississippi Code §15-1-49, or the medical malpractice statute of limitations found in Mississippi Code §15-1-36, applies to a medical malpractice action in which plaintiff alleged injury resulting from defendants’ negligence in leaving a surgical needle in his heart during surgery performed on June 28, 1974, but of which plaintiff was unaware until June 21, 1982. Kilgore v. Barnes, 490 So. 2d 895, 1986 Miss. LEXIS 2500 (Miss. 1986).

In a malpractice action against an attorney resulting from his issuance of defective title certificates, the six-year general statute of limitations under §15-1-49 was applicable, rather than the three-year statute of limitations governing actions on unwritten contracts under §15-1-29. United Cos. Mortg., Inc. v. Jones, 465 So. 2d 1083, 1985 Miss. LEXIS 1988 (Miss. 1985).

Action against attorney for negligence in preparing title certificate is governed by 6 year statute of limitations (§15-1-49), not by 3 year statute (§15-1-29). United Cos. Mortg., Inc. v. Jones, 465 So. 2d 1083, 1985 Miss. LEXIS 1988 (Miss. 1985).

In a legal malpractice action the six-year statute of limitations provided in §15-1-49 governed the action rather than §15-1-29, where plaintiffs clients’ declaration charging that the attorney negligently conducted the legal representation of the plaintiffs by failing to list certain priority claims that could have been satisfied from the assets of the bankruptcy estate sounded in tort, regardless of the oral contract under which the attorney undertook legal representation of the plaintiffs. Hutchinson v. Smith, 417 So. 2d 926, 1982 Miss. LEXIS 2098 (Miss. 1982).

A medical malpractice action based on the theory of lack of informed consent, was in tort and subject to the general six-year statute of limitations as set out in Code 1942, § 722, rather than the one-year statute of limitations on assault and battery claims as set out in Code 1942, § 732. Ross v. Hodges, 234 So. 2d 905, 1970 Miss. LEXIS 1425 (Miss. 1970).

25. Causes or rights accruing in foreign state.

Suit was not timely filed under Miss. Code Ann. §15-1-49(1) because (1) that limitations period only applied if no other limitation period applied, and (2) Miss. Code Ann. §15-1-65 prescribed a limitation period by applying the limitations period from the jurisdiction where the cause of action accrued. N. Am. Midway Entm't, LLC v. Murray, 200 So.3d 437, 2016 Miss. LEXIS 386 (Miss. 2016).

Mississippi’s 6-year statute of limitations for tort actions, §15-1-49, applied to a Mississippi lawsuit even though the tort occurred in Louisiana since Mississippi applies its own procedural law to actions filed in Mississippi courts. Ford v. State Farm Ins. Co., 625 So. 2d 792, 1993 Miss. LEXIS 449 (Miss. 1993).

Mississippi’s general statute of limitations is considered procedural and therefore applies to actions in Mississippi arising under laws of another jurisdiction. Bastoe v. Sterling Drug, Inc., 683 F. Supp. 586, 1988 U.S. Dist. LEXIS 3064 (S.D. Miss. 1988).

The Mississippi statute of limitations, §15-1-49, applied to an action arising from a motor vehicle accident in Louisiana brought by Louisiana residents against a corporation organized under the laws of Mississippi but with its principal place of business in Louisiana. Lee v. Swain Bldg. Materials Co., 529 So. 2d 188, 1988 Miss. LEXIS 363 (Miss. 1988).

The Mississippi general statute of limitations was applicable in a diversity action for wrongful death arising out of an automobile accident in Tennessee. Cummings v. Cowan, 390 F. Supp. 1251, 1975 U.S. Dist. LEXIS 13512 (N.D. Miss. 1975).

In a wrongful death action arising out of a plane crash in Belgium, the statute of limitations of Belgium, which had run prior to the bringing of the action, was held to be substantive law and thus applicable to the action brought in Mississippi. Ramsay v. Boeing Co., 432 F.2d 592, 1970 U.S. App. LEXIS 7563 (5th Cir. Miss. 1970).

Since the lex fori governs as to the remedy for the enforcement of a right in Mississippi under a contract executed in another state, recovery against the indorser of a note executed and delivered in Alabama more than six years prior to the action on the note was barred by the six-year statute of limitations of Mississippi, notwithstanding partial payment had been made during the six-year period, the Alabama six-year statute not being thereby rendered applicable. Montgomery v. Yarbrough, 192 Miss. 667, 6 So. 2d 925 (Miss. 1942).

Where on former appeals, terminating in a decision by the Federal Supreme Court, the point raised by demurrer to insurer’s plea involved the question whether a provision in a fidelity bond requiring any claim thereunder to be made within 15 months after the termination of the suretyship, was subject to the law of Tennessee where the contract was made at a time when the insured was then located in Tennessee, or subject to the laws of Mississippi, to which insured had removed and where the defalcation occurred, and resulted in a determination that the laws of Tennessee governed, such determination did not preclude subsequent litigation as to the effect of such provision under Tennessee decisions as being a condition precedent to liability of the insurer or merely a postponement of the right to sue. Hartford Acci. & Indem. Co. v. Delta & Pine Land Co., 189 Miss. 496, 195 So. 667, 1940 Miss. LEXIS 100 (Miss.), cert. denied, 311 U.S. 610, 61 S. Ct. 25, 85 L. Ed. 387 (U.S. 1940).

Mississippi six-year statute, not three-year statute, applied to action for use and occupation of river bank controlled by Louisiana law. Louisiana & M. R. T. Co. v. Long, 159 Miss. 654, 131 So. 84, 1930 Miss. LEXIS 358 (Miss. 1930).

Statute [Code 1942, § 722] applies to right of action accruing in foreign state. Fisher v. Burk, 123 Miss. 781, 86 So. 300, 1920 Miss. LEXIS 80 (Miss. 1920).

Mississippi statute of limitations controls in action in this state on note executed in Canada. Philp v. Hicks, 112 Miss. 581, 73 So. 610, 1916 Miss. LEXIS 150 (Miss. 1916).

The statute bars a note made in another state where the limit is ten years, although both maker and payee resided there at the time and the maker did not become a resident of this state until nearly six years after maturity. Wright v. Mordaunt, 77 Miss. 537, 27 So. 640, 1899 Miss. LEXIS 97 (Miss. 1899).

26. Persons affected.

Where bonds were purchased by a testator in 1916 and were to become due in 1936 and they were later bequeathed by the testator who died in 1939, without specific designation to his wife, and the wife died in 1948, leaving all her property to legatee, and neither the wife nor the legatee were aware of the existence of the bonds, an action by the legatee in 1949 was barred by the six-year statute of limitations. Mitchell v. Magee, 51 So. 2d 198 (Miss. 1951).

The statute of limitations bars a wife’s causes of action against her husband as if they were unmarried. Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317, 1902 Miss. LEXIS 111 (Miss. 1902).

27. Running of limitation period, generally.

Chancery court did not abuse its discretion in denying appellant’s motion to amend because the motion was barred by the statute of limitation; appellant’s damages accrued in 2009, and the statute of limitations on the claim ran in 2012. RSL Funding, LLC v. Saucier (In re Transfer of Structured Settlement Payment Rights by Benny Ray Saucier), 207 So.3d 689, 2016 Miss. App. LEXIS 801 (Miss. Ct. App. 2016).

In a dispute regarding misrepresentation of insurance coverage, the three-year statute of limitations in Miss. Code Ann. §15-1-49 began to run when the insured received notice that his personal automobile claim, which arose from a serious collision that his son had while driving the insured’s vehicle for personal reasons, was denied; thus, summary judgment should have been granted to the insurers as the insured did not sue until about six years later. Oaks v. Sellers, 953 So. 2d 1077, 2007 Miss. LEXIS 209 (Miss. 2007).

Bank’s claims against an insurer, including fraudulent inducement in the purchase of a policy, were dismissed as time-barred under Miss. Code §15-1-49, because even if the bank had not examined the policy when it was purchased, or if its terms were not clear, the bank was put on notice that the single premium payment may not have been sufficient to keep the policy in force; neither the oral representations from the insurer’s agent that a single payment would maintain the policy, the express assurances that payments were not due, nor the zero balance statements over six years constituted concealment to save the case pursuant to Miss. Code §15-1-67. Peoples Bank Asset & Trust Mgmt. Dep't v. Great W. Life & Annuity Ins. Co., 2005 U.S. Dist. LEXIS 16752 (S.D. Miss. Feb. 7, 2005).

Even if the insured had negligence claims, which were subject to the three-year statute of limitations found in Miss. Code Ann. §15-1-49, her claims would still be barred; the insured’s claim began to run at a time when she should reasonably have been aware that a tort had been committed; that day was March 11, 2000, when the investigator was arrested at the insured’s place of employment, and her court action was not filed until April 10, 2003, more than three years after she should have been aware of the existence of a claim. Lynch v. Liberty Mut. Ins. Co., 909 So. 2d 1289, 2005 Miss. App. LEXIS 137 (Miss. Ct. App. 2005).

There are two factors that must be proven before the provisions of Miss. Code Ann. §15-1-67 can operate to toll the statute of limitations for a cause of action: the plaintiff must prove that (1) some affirmative act or conduct was done and prevented discovery of a claim; and (2) due diligence was performed on their part to discover it; and therefore an insured’s action against his agent accrued upon the sale of the policies where he performed no additional act thereafter. Williams v. Union Nat'l Life Ins. Co., 2003 U.S. Dist. LEXIS 25159 (N.D. Miss. July 24, 2003).

Appellant tax sale purchaser raised the statute of limitations in his appeal of the lower court’s decision that the tax sale of the landowners’ property was void due to the lack of notice therefor; however, this issue was not raised as an affirmative defense, and was therefor not properly before the appellate court. Alexander v. Womack, 857 So. 2d 59, 2003 Miss. LEXIS 528 (Miss. 2003).

Borrower’s misrepresentation and negligence claims against a credit insurer’s employee were time-barred and the statute was not tolled under Miss. Code Ann. §15-1-67 because the borrower received, but did not read, copies of all pertinent documents, which clearly stated that credit insurance was optional. Bell v. Am. Gen. Fin., Inc., 267 F. Supp. 2d 582, 2003 U.S. Dist. LEXIS 10718 (S.D. Miss. 2003).

Running of statute of limitations against tortfeasor does not bar claim against insurer. Bailey v. State Farm Fire & Casualty Ins. Co., 621 F. Supp. 1016, 1985 U.S. Dist. LEXIS 14082 (S.D. Miss. 1985).

This section is applicable to strict products liability in tort actions and, in personal injury actions, the statute begins to run from the time that injuries are sustained. Ford Motor Co. v. Broadway, 374 So. 2d 207, 1979 Miss. LEXIS 2224 (Miss. 1979).

It is well settled law in Mississippi that a cause of action begins to run from the time of injury and not from the time of its discovery unless the running of the statute of limitations is tolled by the operation of Code 1942, § 742 (fraudulent concealment of a cause of action). Wilson v. Retail Credit Co., 325 F. Supp. 460, 1971 U.S. Dist. LEXIS 14248 (S.D. Miss. 1971), aff'd, 457 F.2d 1406, 1972 U.S. App. LEXIS 10066 (5th Cir. Miss. 1972).

If no action on an anticipatory breach is brought before the time fixed by the contract for the beginning of the performance by the party who has committed such a breach, the period of statute of limitations begins to run only from the time so fixed by the contract. Old Ladies Home Ass'n v. Hall, 212 Miss. 67, 52 So. 2d 650, 1951 Miss. LEXIS 428 (Miss. 1951).

An immediate action based upon an anticipatory breach is a different cause of action from that based on the nonperformance at the contract time, and limitation period does not begin to run upon nonperformance of contractual duty until the cause of action accrues and they duty of performance continues in spite of repudiation. Old Ladies Home Ass'n v. Hall, 212 Miss. 67, 52 So. 2d 650, 1951 Miss. LEXIS 428 (Miss. 1951).

The general rule allows the injured promisee, if he elects after breach of the contract to keep it alive, to compute the statute of limitations, not from the time of the breach by anticipatory repudiation, but from the time when ultimate payment of performance was promised, the death of the promisor. Old Ladies Home Ass'n v. Hall, 212 Miss. 67, 52 So. 2d 650, 1951 Miss. LEXIS 428 (Miss. 1951).

Mere mistake, accident or ignorance of one not under disability is not sufficient to suspend the statute of limitations. Mitchell v. Magee, 51 So. 2d 198 (Miss. 1951).

28. — Accrual of cause of action; miscellaneous.

Worker’s claim for injury caused by exposure to respirable crystalline silica while working as a sandblaster was time-barred, under the discovery rule, because the worker had knowledge of a potential injury years earlier when doctors diagnosed the worker’s bronchitis and other lung disease, the worker submitted medical records, noting findings consistent with “pneumoconiosis (such as silicosis . . .)”, to the Social Security Administration for disability, and the worker’s parent and friend both worked in sandblasting and filed silicosis suits. F & S Sand, Inc. v. Stringfellow, 265 So.3d 170, 2019 Miss. LEXIS 85 (Miss. 2019).

University graduate’s contract and tort related claims against the university from which the graduate obtained a master’s degree were barred by the three-year statute of limitations because any alleged cause of action which the graduate may have had against the university accrued, at the very latest, upon graduation, but the graduate waited until eleven years later to file the complaint against the university and failed to show that the statute of limitations was tolled. McGee v. Jackson State Univ., — So.3d —, 2019 Miss. App. LEXIS 362 (Miss. Ct. App. July 30, 2019).

Landowners’ inverse condemnation claim against the State of Mississippi was not time-barred because the claim did not accrue until the landowners’ land was actually taken. State v. Murphy, 202 So.3d 1243, 2016 Miss. LEXIS 446 (Miss. 2016).

Claims by the co-conservators of their parent’s person were barred by the applicable statutes of limitation because they should have discovered, by reasonable diligence, that a previously appointed conservator of the estate was misappropriating funds from the estate when the co-conservators - using due diligence - would have received an accounting and bank statements regarding their parent’s estate, and would have by reasonable diligence discovered the injury. Benvenutti v. McAdams, 162 So.3d 808, 2015 Miss. LEXIS 217 (Miss. 2015).

While a chancellor properly found that the relatives were entitled to a new trial, the chancellor erred in finding that a constructive trust existed because their agreement to provide money in exchange for the owner’s promise of an interest in a landfill was nothing more than a contract and the relatives’ breach of contract action was untimely. Barriffe v. Estate of Nelson, 153 So.3d 613, 2014 Miss. LEXIS 492 (Miss. 2014).

Welder’s products liability and failure to warn action, filed on November 14, 2005, against two manufacturers was time-barred pursuant to Miss. Code Ann. §15-1-49 because the statute of limitations began to run in September 2002 when the welder knew of his Parkinsonism, rather than October 2005 when the welder was diagnosed with manganism; the welder’s cause of action accrued upon the discovery of the injury, not the cause of the injury. Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 2010 Miss. LEXIS 639 (Miss. 2010).

Discovery rule is codified with respect to the three year statute of limitations at issue in the alienation of affection and negligent infliction of emotional distress claims at Miss. Code Ann. §15-1-49(2), which provides that in all actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury. Bristow v. Baskerville, 2010 U.S. Dist. LEXIS 129131 (S.D. Miss. Dec. 6, 2010), vacated, 2011 U.S. Dist. LEXIS 41860 (S.D. Miss. Apr. 12, 2011).

Both parties agreed that the general, catch-all three year statute of limitations set forth in Miss. Code Ann. §15-1-49 (Rev. 2003) should have applied in the case, and the appellate court found that the owner implicitly consented to the association renting out his unit because he never responded to the letters sent to him, and he never voiced his disapproval of the rentals at the board meetings, or at any other time prior to filing his complaint in the present action. Because the owner never objected to the rentals until he filed his complaint in January 2000, even though he knew that the association was entering his unit without his consent as early as 1993, the appellate court found no error in the chancellor’s finding that the owner’s continued-trespass claim was untimely. Robertson v. Chateau Legrand Prop. Owner's Ass'n, 39 So.3d 931, 2009 Miss. App. LEXIS 724 (Miss. Ct. App. 2009).

Order granting summary judgment based on insured’s claims against an insurer being time-barred under Miss. Code Ann. §15-1-49 was reversed because the triggering event could not be pinpointed as matter of law, but rather posed a question of fact as to when a reasonable policy holder should have realized from the available information that the policy would not or was not performing as allegedly promised and that the so-called vanishing premiums were a fiction. Weathers v. Metro. Life Ins. Co., 14 So.3d 688, 2009 Miss. LEXIS 305 (Miss. 2009).

Plaintiff employer’s business tort and trade secret claims against defendant competitor, based on the employer’s former employee, in violation of a non compete agreement, selling to his former customers, were time-barred under Miss. Code Ann. §§15-1-49, 75-26-13, because §15-1-49(2)’s discovery rule did not toll the limitations period since the employer’s representative testified that learning competing sellers’ identities was not difficult. State Indus. Prods. Corp. v. Beta Tech. Inc., 575 F.3d 450, 2009 U.S. App. LEXIS 15135 (5th Cir. Miss. 2009).

For exhaustion of remedies purposes, a final order was not entered until an administrative law judge made a full resolution of a final decision because the parties in a worker’s compensation dispute had reserved the issue of temporary and permanent disability for a hearing on the merits. Bullock v. AIU Ins. Co., 2008 Miss. LEXIS 221 (Miss. May 8, 2008), op. withdrawn, sub. op., 995 So. 2d 717, 2008 Miss. LEXIS 595 (Miss. 2008).

Plaintiff’s personal injury claims against the manufacturers of products that allegedly contained asbestos accrued when plaintiff was diagnosed with asbestosis on May 21, 2002, and when plaintiff filed the complaint on May 19, 2005, the claims were timely under the three-year statute of limitations in Miss. Code Ann. §15-1-49. Riley v. Ga. Pac. Corp., 2006 U.S. Dist. LEXIS 1440 (N.D. Miss.), dismissed, 2006 U.S. Dist. LEXIS 1623 (N.D. Miss. Jan. 5, 2006).

Worker’s asbestosis claim against a corporation for whom he had made products was dismissed for failure to timely serve the complaint within 120 days under Miss. R. Civ. P. 4(h), which in turn caused the statute of limitations in Miss. Code Ann. §15-1-49(1), (2), to resume running and expire, barring his claims under Fed. R. Civ. P. 12(b)(6). Riley v. Ga. Pac. Corp., 2006 U.S. Dist. LEXIS 1623 (N.D. Miss.), dismissed, 2006 U.S. Dist. LEXIS 1625 (N.D. Miss. Jan. 5, 2006).

Grant of summary judgment in favor of a paint manufacturer in a minor and mother’s action for injuries resulting from lead-based paint was proper pursuant to Miss. Code Ann. §15-1-49(1) and (2) because the claims accrued no later than 1994 and the statute of limitations thus expired no later than 1997. Based on the facts, the mother knew categorically in 1993 that the minor had suffered excessive exposure to lead, but she did not file her claims until 2000. Pollard v. Sherwin-Williams Co., 955 So. 2d 859, 2005 Miss. App. LEXIS 622 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 955 So. 2d 764, 2007 Miss. LEXIS 31 (Miss. 2007).

Consumers’ civil antitrust claims, which were filed in April 2003, were time barred under Miss. Code Ann. §15-1-49(2) where (1) the information was placed in the public domain as early as October 7, 1998, with the publication of a newspaper article, (2) from and after that date, the dissemination of the information increased in an ever widening circle, and (3) when the information was placed in the public domain, the doctrine of fraudulent concealment ceased to be applicable. Carder v. BASF Corp., 919 So. 2d 258, 2005 Miss. App. LEXIS 448 (Miss. Ct. App. 2005).

Courts applying Mississippi law hold that the statute of limitations period for claims based on alleged misrepresentations begins to run upon the completion of the sale induced by such false representation or upon the consummation of the fraud or misrepresentation. Donald v. Pioneer Credit Co., 374 F. Supp. 2d 495, 2005 U.S. Dist. LEXIS 16865 (S.D. Miss. 2005).

Homeowners’ claim for flood damages allegedly caused by contractor’s negligent construction and county’s negligent inspection of their home were barred by Miss. Code Ann. §§15-1-41 and14-1-49(1) because their action accrued when they first occupied the home and when they first asked the county to remedy the drainage problems. Baldwin v. Holliman, 913 So. 2d 400, 2005 Miss. App. LEXIS 297 (Miss. Ct. App. 2005), overruled in part, Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Once someone who possesses uninsured motorist coverage knows, or reasonably should know, that the damages claimed to have been suffered exceed the limits of insurance available to the alleged tortfeasor, the cause of action against the uninsured motorist carrier has accrued, and it is at this point in time that a potential plaintiff has a legally enforceable claim against the uninsured motorist carrier. Jackson v. State Farm Mut. Auto. Ins. Co., 852 So. 2d 641, 2003 Miss. App. LEXIS 70 (Miss. Ct. App. 2003), rev'd, 880 So. 2d 336, 2004 Miss. LEXIS 1053 (Miss. 2004).

Under Mississippi law, cause of action does not accrue until injury occurs. Wheeler v. Magdovitz (In re Wheeler), 137 F.3d 299, 1998 U.S. App. LEXIS 6192 (5th Cir. Miss. 1998).

Suits on claims such as that asserted in instant case, brought by FDIC to recover amounts owed by daughter both individually and as guarantor of loans, are required to be filed within 6 years after cause of action accrued, and cause of action accrues when payor on note comes into breach, not when FDIC, as receiver for failed lender, acquired the right to sue on the note. FDIC v. Belli, 981 F.2d 838, 1993 U.S. App. LEXIS 1188 (5th Cir. Miss. 1993).

Bank’s cause of action against company hired to monitor inventory of steel company, to whom bank made loan, did not accrue until bank discovered inventory shortage, as each time company submitted false inventory report to bank, separate but ongoing breach of agreement occurred. Merchants & Marine Bank v. Douglas-Guardian Warehouse Corp., 801 F.2d 742, 1986 U.S. App. LEXIS 31635 (5th Cir. Miss. 1986).

A cause of action for damages resulting from the closure of a portion of a frontage road by the state highway commission accrued at the time the road was closed and the six-year statute of limitations prescribed by Section 15-1-49 began to run at that time. Mississippi State Highway Com. v. Vaughey, 358 So. 2d 1307, 1978 Miss. LEXIS 2570 (Miss. 1978).

The rule is well settled in Mississippi that where a debt is payable in installments the statute of limitations begins to run as to each instalment from the time it becomes due and the creditor can recover only on those installments falling due within the statutory period. Meridian Production Credit Asso. v. Edwards, 231 So. 2d 806, 1970 Miss. LEXIS 1614 (Miss. 1970).

The dismissal by a former sheriff and tax collector of his action against the county for compensation for alleged services did not destroy the right of his assignee, who was to obtain a portion of any recovery, and since the assignee’s right was dependent upon the right of his assignor, assignee’s action should have been brought within six years from the date of the expiration of the term of office of the former sheriff and tax collector, and, where it was not, the claim was barred. Smith v. Copiah County, 232 Miss. 838, 100 So. 2d 614, 1958 Miss. LEXIS 337 (Miss. 1958).

In an action against the union for wrongful suspension and expulsion of member, where this suspension was by a letter mailed in Kansas but received in Mississippi, the cause of action accrued in Mississippi and was subject to the Mississippi statute of limitations. Lowry v. International Brotherhood of Boilermakers, etc., 220 F.2d 546, 1955 U.S. App. LEXIS 4494 (5th Cir. Miss. 1955).

Cause of action for suspension of the union accrued on reception of a letter suspending the plaintiff. Lowry v. International Brotherhood of Boilermakers, etc., 220 F.2d 546, 1955 U.S. App. LEXIS 4494 (5th Cir. Miss. 1955).

A cause of action for redemption of corporate stock pledged as collateral for indebtedness, and an accounting accrues at the time that the owner of the stock has knowledge of the claim of another to the stock. Hudson v. Belzoni Equipment Co., 203 Miss. 212, 33 So. 2d 796, 1948 Miss. LEXIS 252 (Miss. 1948).

29. — —Real property, deeds, etc.

Property owners’ inverse condemnation action against a city was time-barred because each heavy rain that caused a city ditch to damage the owners’ property was not a separate taking, as the taking began when the owners knew damage had occurred. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

Property owners’ inverse condemnation action against a city was time-barred because (1) the language “without limitation or qualification” in an opinion interpreting Miss. Const. art. 3, § 17 only applied to the type of damage, (2) no Mississippi authority held otherwise, so no constitutional rights were violated or materially impaired, and (3) the cause of action accrued upon discovering an injury, not the injury’s cause. City of Tupelo v. O'Callaghan, 208 So.3d 556, 2017 Miss. LEXIS 19 (Miss. 2017).

Buyers were without any cause of action until they suffered damages and the record was devoid of any proof that the buyers suffered actual damages prior to the date of closing when they purchased the home; the trial court erred in finding that the statute of limitations accrued prior to the date of closing. Fletcher v. Lyles, 999 So. 2d 1271, 2009 Miss. LEXIS 7 (Miss. 2009).

An action alleging that the Federal Deposit Insurance Corporation (FDIC) sold, for its own profit, lands held pursuant to two deeds of trust that the FDIC had previously sold to the plaintiff, was barred by the statute of limitations where the sale occurred more than three years prior to the commencement of the action, notwithstanding the assertion that the plaintiff did not receive actual notice of the sale until more than three years after it occurred, since the recordation of the sale provided the plaintiff with constructive notice of the sale. Commercial Servs. of Perry, Inc. v. FDIC, 199 F.3d 778, 2000 U.S. App. LEXIS 575 (5th Cir. Miss. 2000).

Landowner’s claim that county unconstitutionally took private road for public use through its activity in working on roadway accrued at time county began performing maintenance work on road; maintenance work did or should have put landowner on notice that county was claiming road as public road. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

Landowner’s claim that county unconstitutionally took fee simple interest in eight feet of land joining public road instead of right of way easement as landowner intended to grant accrued, if at all, when landowner executed warranty deed to county and deed was filed in chancery clerk’s office. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

Unconstitutional taking of abandoned railroad right of way that landowner believed he owned, allegedly caused by county land surveyor’s survey of 1.5 acres, accrued, if at all, when survey was conducted for third parties or when deed to third parties was filed. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

An action in subrogation filed by a credit association which had purchased land under a foreclosure sale under its second deed of trust against the successors in title in January, 1967, to recover the amount which it had paid to the beneficiary of the first deed of trust in June of 1961, in payment of a delinquent payment owed to the beneficiary of the first trust deed by the grantor who had executed the deeds of trusts, was barred by the six-year statute of limitations where the delinquent payment had been due in January of 1961, since the plaintiff credit association acquired no greater rights than those of its subrogor so that when the debt became barred, the plaintiff’s right to enforce its remedy in equity on the deed of trust was likewise barred. Meridian Production Credit Asso. v. Edwards, 231 So. 2d 806, 1970 Miss. LEXIS 1614 (Miss. 1970).

Right of mortgagee, furnishing money to heirs, part of which was used to discharge ancestor’s trust deeds, to be subrogated to such prior incumbrances as to heirs not signing trust deed, accrued, as regards running of limitations on payment of debt secured by such prior trust deeds. Burton v. John Hancock Mut. Life Ins. Co., 171 Miss. 596, 157 So. 525, 158 So. 474, 1934 Miss. LEXIS 243 (Miss. 1934).

A purchaser’s right of action for deceit based upon false representations as to the acreage or the number of feet in a tract of land sold accrues upon the completion of the sale induced by such false representation, or upon the consummation of the fraud, and will be barred if suit is not filed within six years thereafter, in the absence of concealment of the fraud. Dunn v. Dent, 169 Miss. 574, 153 So. 798, 1934 Miss. LEXIS 73 (Miss. 1934).

Where a second deed is made to correct first deed, six-year statute of limitations against action on warranty begins to run from the date of the second deed. Wade v. Barlow, 99 Miss. 33, 54 So. 662, 1910 Miss. LEXIS 10 (Miss. 1910).

Where one conveys land owned by the United States and warrants the title, the covenant is broken when made, and the right of action accrues at once. Pevey v. Jones, 71 Miss. 647, 16 So. 252, 1893 Miss. LEXIS 72 (Miss. 1893).

The right of action on his covenant of warranty of a vendee of uncultivated land who acquires and enjoys a mixed possession along with the holder of a paramount title does not accrue until there is an interruption of his enjoyment of such possession. Watkins v. Gregory, 69 Miss. 469, 13 So. 696, 1891 Miss. LEXIS 145 (Miss. 1891).

30. — — Insurance.

Circuit court erred in denying an insurance agent’s motion for summary judgment because the insured’s claims were barred by the general three-year statute of limitations where the insured did not assert his claims for more than three years after he learned that the agent had failed to procure a replacement policy. McMorris v. Tally, 163 So.3d 289, 2015 Miss. LEXIS 231 (Miss. 2015).

Circuit court properly granted an employer’s insurer summary judgment in an employee’s action alleging breach of contract and bad-faith refusal to pay his claim because there was no genuine issue of material fact that the complaint was time-barred; any claim the employee had to recover for his injury on the employer’s farm accrued when he was injured on January 21, 2008, and thus, his complaint, which was filed on October 1, 2012, was time-barred. Ferguson v. Miss. Farm Bureau Cas. Ins. Co., 147 So.3d 374, 2014 Miss. App. LEXIS 492 (Miss. Ct. App. 2014).

In an action involving ambiguous universal life insurance policies, a genuine issue of material fact existed as to when an alleged fraud was consummated on the insureds and, therefore, when the statute of limitations, pursuant to Miss. Code Ann. §15-1-49(2), began to run. Hicks v. N. Am. Co. for Life & Health Ins., 47 So.3d 181, 2010 Miss. App. LEXIS 16 (Miss. Ct. App.), cert. denied, 49 So.3d 1139, 2010 Miss. LEXIS 588 (Miss. 2010).

In a case in which a bonding company moved for summary judgment, arguing that an entertainment company’s complaint for breach of contract and bad faith denial of its claim was untimely, that argument failed. While both parties agreed the applicable limitation period was the three years provided for in Miss. Code Ann. §15-1-49, the entertainment company’s claim did not accrue until after its claim had been denied, not, as the bonding company argued, when the entertainment company first had notice of the construction defects. C & I Entm't, LLC v. Fid. & Deposit Co. of Md., 2008 U.S. Dist. LEXIS 89905 (N.D. Miss. Oct. 28, 2008).

Summary judgment was properly awarded to an insurer in an insured’s suit for fraud, breach of contract, and negligent supervision because the insured’s action was time-barred; the three-year statute of limitations began to run after the insured read the life insurance policy and expressed concern over its provisions. Weathers v. Metro. Life Ins. Co., 14 So.3d 732, 2008 Miss. App. LEXIS 426 (Miss. Ct. App. 2008), rev'd, 14 So.3d 688, 2009 Miss. LEXIS 305 (Miss. 2009).

In a dispute between an insured and an insurer, a trial court erred in granting summary judgment for the insurer because the statute of limitations had not run; the insured filed suit within two years of discovering his premiums on his policy had increased. Pate v. Conseco Life Ins. Co., 971 So. 2d 593, 2008 Miss. LEXIS 15 (Miss. 2008).

Complaint by a Mississippi resident against an insurer arising out of uninsured motorist provisions of a policy was properly dismissed as time barred; the original complaint was properly refused by the circuit court clerk because it was signed by a Louisiana attorney who was not licensed to practice in Mississippi, and who had not been admitted pro hac vice. Mitchell v. Progressive Ins. Co., 965 So. 2d 679, 2007 Miss. LEXIS 542 (Miss. 2007).

Where an insured alleged that an insurance agent misrepresented that a policy’s annual premium payments would “vanish” after eight out-of-pocket payments, the insured had been put on notice of a possible misrepresentation in 1993 when the first of several additional payment notices was received, so a cause of action for fraudulent concealment accrued no later than 1993. Wilbourn v. Equitable Life Assur. Soc'y of the United States, 998 So. 2d 439, 2007 Miss. App. LEXIS 501 (Miss. Ct. App. 2007), rev'd, 998 So. 2d 430, 2008 Miss. LEXIS 602 (Miss. 2008).

Since the homeowners’ claims against an insurance agent were time-barred pursuant to Miss. Code Ann. §15-1-49 and the homeowners had not shown that they were not entitled to the benefits of tolling under Miss. Code Ann. §15-1-67, the insurance agent was fraudulently joined since the homeowners had no possibility of recovery against the agent; the homeowners’ motion to remand the case was denied. Mendrop v. Shelter Mut. Ins. Co., 2006 U.S. Dist. LEXIS 54783 (N.D. Miss. Aug. 4, 2006).

In light of a claim for wrongful denial of benefits, the applicable statute of limitations is Mississippi’s catch-all statute of limitations found at Miss. Code Ann. §15-1-49; that statute provides that all actions without a specific period of limitation must be commenced within three years after the cause of action occurred. Heagy v. Hartford Life Ins. Co., 2006 U.S. Dist. LEXIS 43150 (N.D. Miss. June 26, 2006).

Summary judgment was granted to an insurer and an agent in a fraud action relating to the purchase of life insurance because it was time-barred under Miss. Code Ann. §15-1-49 since the claim should have been filed three years from the completion of the sale; moreover, there was no fraudulent concealment tolling the limitations period since the purchaser was not precluded from discovering her claim in the language of the policy. Warren v. Horace Mann Life Ins. Co., 949 So. 2d 770, 2006 Miss. App. LEXIS 423 (Miss. Ct. App. 2006).

Where Miss. Code Ann. §15-1-49’s three-year statute of limitations applied, the insurer’s motion for summary judgment was granted because the insured’s allegation that the insurer failed to disclose pertinent terms of loan transactions and related contracts of insurance was time barred. Additionally, the insured’s common defense argument may have been well received at the removal/remand stage of the litigation, but it was inapplicable in the court’s summary judgment analysis. Clark v. Commercial Credit Corp., 357 F. Supp. 2d 962, 2005 U.S. Dist. LEXIS 6788 (S.D. Miss. 2005).

Bank’s claims that an insurer acted fraudulently in representing that an insurance policy purchased by the bank for one of its trusts could be paid for with a single premium payment was time-barred under the three-year statute of limitations in Miss. Code Ann. §15-1-49, where the cause of action accrued in 1995 when the insurer informed the bank that additional payment might be due, as was stated in the policy, and the bank did not file suit until 2004. Peoples Bank Asset & Trust Mgmt. Dep't v. Great W. Life & Annuity Ins. Co., 2005 U.S. Dist. LEXIS 16755 (S.D. Miss. Feb. 7, 2005).

Grant of summary judgment against the insureds was proper where their claim against the insurer after the driver insured was injured in an accident was barred by the statute of limitation under Miss. Code Ann. §15-1-49 because the insurer was added as a defendant to the action more than three years after the extent of the driver insured’s injuries was known. Jackson v. State Farm Mut. Auto. Ins. Co., 880 So. 2d 336, 2004 Miss. LEXIS 1053 (Miss. 2004).

Where plaintiff borrowers raised claims, including a claim that the borrowers were wrongfully charged for credit insurance products provided by defendant insurers, the borrowers’ claims were governed by, at most, a three-year statute of limitations, under Miss. Code Ann. §15-1-49(1), as the borrowers obtained their loans between 7 and 11 years prior to filing suit, their claims were time-barred. Queen v. Am. Gen. Fin., Inc., 289 F. Supp. 2d 782, 2003 U.S. Dist. LEXIS 24299 (S.D. Miss. 2003).

There was no statute of limitations problem in an action arising from the failure of an insurance company to refund an unearned premium on an installment contract, notwithstanding that the action was not commenced until three years and six days after the installment contract was satisfied, since the insurance company did not have a duty to refund the unearned premium on the date that the contract was satisfied and did not have a duty to refund without notice of satisfaction of the contract. Mic Life Ins. Co. v. Hicks, 2000 Miss. App. LEXIS 299 (Miss. Ct. App. June 23, 2000), aff'd, in part, rev'd, 2001 Miss. LEXIS 296 (Miss. Oct. 31, 2001).

An insurance company’s intervention in an injured worker’s third-party tort claim to assert the company’s right of subrogation is not subject to a statute of limitations bar so long as the original action was commenced by the injured worker (or his personal representative) within the applicable limitation period. Mississippi Food & Fuel Workers' Compensation Trust v. Tackett, 778 So. 2d 136, 2000 Miss. App. LEXIS 134 (Miss. Ct. App. 2000).

An action for the wrongful refusal to pay life insurance benefits accrues at the time of the specific refusal to pay. Thus, the statute of limitations did not begin to run on an action arising from an alleged wrongful refusal to pay life insurance benefits until the insurer notified the beneficiary that it would not pay the benefits. Young v. Southern Farm Bureau Life Ins. Co., 592 So. 2d 103, 1991 Miss. LEXIS 982 (Miss. 1991).

This section [Code 1942, § 722] was not abridged by a holding that a cause of action for disability benefits under a group insurance policy did not arise until due proof thereof was made, where the policy required due proof of permanent disability in order to recover benefits. Metropolitan Life Ins. Co. v. Lindsey, 184 Miss. 359, 185 So. 573, 1939 Miss. LEXIS 30 (Miss. 1939).

Where disability benefits under an insurance policy were payable at the end of each year, a cause of action accrued for each of them when respectively due, and not before, so that installments which became due more than six years before the commencement of an action for such disability payments, were barred but the remainder were not. Columbian Mut. Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225, 1938 Miss. LEXIS 323 (Miss. 1938).

Action on life policy brought after insured’s death by beneficiary who contended insurer had wrongfully declared policy void during insured’s lifetime, held not barred by limitations because brought more than six years after last premium was remitted by insured, since beneficiary had right to treat policy as in force and delay suit until it became payable upon insured’s death. Callender v. Lamar Life Ins. Co., 182 Miss. 609, 182 So. 119, 1938 Miss. LEXIS 199 (Miss. 1938).

Cause of action on double indemnity clause of life policy accrued to beneficiary at time of insured’s death or within a reasonable time thereafter. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

Cause of action on disability policy held not to have accrued at time insurer disavowed further liability so as to be barred by limitations, since insurer incurred continuing obligation under its contract and insured had no right to recover payments due prior to due date. Atlantic Life Ins. Co. v. Serio, 171 Miss. 726, 157 So. 474, 1934 Miss. LEXIS 240 (Miss. 1934).

Jury finding that death occurred on day of disappearance does not render action on life insurance policy barred by six-year statute as proof of death could not be made out until expiration of seven years. New York Life Ins. Co. v. Brame, 112 Miss. 828, 73 So. 806, 1916 Miss. LEXIS 188 (Miss. 1916).

31. — —Notes and bonds.

Complaint alleging violations of the Mississippi Uniform Commercial Code concerning forced insurance for loans accrued on the dates of plaintiff borrower’s disclosure statement, and absent evidence of an affirmative act preventing the borrower from discovering the claims, the three-year Mississippi statute of limitations, Miss. Code Ann. §15-1-49(1) was not tolled and the claims were time-barred. Johnson v. Citifinancial, Inc., 2003 U.S. Dist. LEXIS 22527 (S.D. Miss. Feb. 7, 2003).

Where note secured by deed of trust was extended from time to time, but fact of extensions was not noted on margin of record of deed of trust before remedy to enforce it appeared on face of record to be barred, or within six months thereafter, that no cause of action accrued in favor of indorser of note until he paid debt, held immaterial as affects rights of subsequent purchasers without notice. Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780, 1937 Miss. LEXIS 152 (Miss. 1937).

Note containing promise to pay “on demand after date” held due and payable on day following date thereof, as regards limitation. S. S. Finger Mercantile Co. v. Adair, 159 Miss. 303, 131 So. 875, 1931 Miss. LEXIS 26 (Miss. 1931).

Six-year statute did not begin to run against note payable on demand until actual demand was made. Spiro v. Shapleigh Hardware Co., 153 Miss. 81, 118 So. 429, 1928 Miss. LEXIS 189 (Miss. 1928).

When demand for interest due on corporate bonds was refused and the principal thereof became at once due and payable in accordance with the provisions of the bonds, the owner’s right to collect then and there accrued and the running of limitations must be computed from that date. Central Trust Co. v. Meridian L. & R. Co., 106 Miss. 431, 63 So. 575, 1913 Miss. LEXIS 132 (Miss. 1913).

32. — —Banking.

Trial court abused its discretion in failing to set aside the entry of default because a bank presented a reasonable, colorable defense on the merits regarding a debt-collection company’s notice of overdraft charges and whether a significant portion of the company’s claims were time barred by the applicable three-year statute of limitations; daily notices and monthly bank statements reflecting the overdraft charges were mailed to the company in 2006, and it filed its complaint in 2010. Franklin Collection Serv. v. Bancorpsouth Bank, 275 So.3d 1048, 2019 Miss. LEXIS 206 (Miss. 2019).

Facts that individuals claimed a bank employee failed to disclose could have been discovered by the individuals through reasonable diligence more than three years before they filed suit; there was no reasonable possibility that the individuals could establish a claim against the resident defendant and the discovery rule under Miss. Code Ann. §15-1-49(2) did not toll the statute of limitation. Stacher v. Am. Gen. Fin., Inc., 2003 U.S. Dist. LEXIS 18713 (S.D. Miss. Mar. 7, 2003).

Where in 1943 a bank by mistake credited a deposit to an account of a brother of depositor and both accounts remained inactive until January 1949, when the brother withdrew his account and the bank did not discover the mistake until March 1951 when the active depositor presented his pass book, the cause of action for restitution of the funds did not arise until January 1949 and neither the three- nor the six-year statute of limitation barred suit thereon brought on June 1951. Van Zandt v. First Nat'l Bank, 220 Miss. 127, 70 So. 2d 327, 1954 Miss. LEXIS 417 (Miss. 1954).

Where a bank paid a check to a person other than the drawer, under the belief that the indorsement was genuine, the six-year statute started to run from the date that the bank rendered drawer a statement showing the check to be charged against it. Masonic Ben. Ass'n v. First State Bank, 99 Miss. 610, 55 So. 408, 1911 Miss. LEXIS 232 (Miss. 1911).

33. — —Contracts.

Statute of limitations precluded a former client’s claims against an attorney for fraud, breach of contract, and legal malpractice because the statute of limitations began to run when the client sent a letter to the attorney terminating the attorney’s employment and on that same date received a copy of the employment contract which the client believed was altered. The complaint which the client filed with the Mississippi Bar did not toll the statute of limitations or require the client to exhaust administrative remedies before filing suit. Archer v. Creel, 217 So.3d 690, 2016 Miss. App. LEXIS 600 (Miss. Ct. App. 2016), cert. denied, 216 So.3d 1150, 2017 Miss. LEXIS 186 (Miss. 2017).

Employee’s breach-of-contract suit against an employer was time-barred because (1) the action accrued when the employee tendered a letter of resignation stating the conditions of employment had become unbearable, and (2) suit was not filed within three years of that date. Wallace v. Greenville Pub. Sch. Dist., 142 So.3d 1104, 2014 Miss. App. LEXIS 180 (Miss. Ct. App. 2014).

Plaintiffs sufficiently pled a breach of contract claim against a mortgage servicer by specifically alleging potential breaches, including an incorrect property insurance charge. The date of discovery of the irregularities, for purpose of deciding whether the discovery rule in Miss. Code Ann. §15-1-49(2) applied, was an issue of fact to be decided by a jury. Bailey v. Am. Home Mortg. Servicing, Inc., 2012 U.S. Dist. LEXIS 78420 (S.D. Miss. June 6, 2012).

In a case in which a buyer sued a software seller for contract claims based on a services agreement, the transaction was governed by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49, and the trial court did not err in dismissing as barred by the statute of limitations the buyer’s service contract claims. Peavey Elecs. Corp. v. Baan U.S.A., Inc., 10 So.3d 945, 2009 Miss. App. LEXIS 194 (Miss. Ct. App. 2009).

Where borrowers signed a loan agreement in 1995 and brought suit against the lender in 2001, claims such as fraud and breach of covenant of good faith and fair dealing, which were governed by the 3-year statute of limitations, were time-barred because the claims arose at the time of the execution of the loan as opposed to at the time that the borrowers were first made aware that better terms existed. Since the borrowers signed and received a copy of the loan containing all the payment terms, they were on notice of the terms complained of as of the time of the execution of the loan agreement in 1995, and the statute of limitations began to run at that time. CitiFinancial Mortg. Co. v. Washington, 967 So. 2d 16, 2007 Miss. LEXIS 590 (Miss. 2007).

Statute of limitations did not run against an attorney and a real estate specialist in the mother and son’s action for breach of contract because a Florida property was never sold; because a component of the contract remained to be fulfilled, the statute of limitations had not yet began to run. Bailey v. Estate of Kemp, 955 So. 2d 777, 2007 Miss. LEXIS 182 (Miss. 2007).

Insurer was awarded summary judgment in a debtor’s action alleging that the insurer illegally bundled insurance products with loans that the debtor obtained from a creditor because the debtor’s claims were barred by the three-year statute of limitations in Miss. Code Ann. §15-1-49(1); the debtor’s claims “accrued” on the dates that he entered into the loans. Donald v. Pioneer Credit Co., 374 F. Supp. 2d 495, 2005 U.S. Dist. LEXIS 16865 (S.D. Miss. 2005).

Trial court did not err in denying motions to dismiss the borrower’s claim because the borrower never received reasonable notice of the accounting method used by the lender and the statute of limitation never began to run until, presumably, documents were produced during discovery; however the other borrower did receive reasonable notice of the lender’s activities and the statute of limitation began to run earlier and did bar his action against the lender. Am. Bankers' Ins. Co. v. Wells, 819 So. 2d 1196, 2001 Miss. LEXIS 312 (Miss. 2001).

An immediate action based upon an anticipatory breach is a different cause of action from that based on the nonperformance at the contract time, and limitation period does not begin to run upon nonperformance of contractual duty until the cause of action accrues and the duty of performance continues in spite of repudiation. Old Ladies Home Ass'n v. Hall, 212 Miss. 67, 52 So. 2d 650, 1951 Miss. LEXIS 428 (Miss. 1951).

Acceptance of counter proposal altering original contract constitutes new contract from which running of 6-year statute will be computed. Edward Thompson Co. v. Foy, 115 Miss. 848, 76 So. 685, 1917 Miss. LEXIS 268 (Miss. 1917).

34. — —Negligence cases.

Circuit court did not err in granting manufacturers summary judgment because it properly applied Mississippi Supreme Court precedent in determining that a pilot incorrectly attempted to substitute fictitious parties; because the manufacturers were not properly added, the claims against them did not relate back to the original complaint and were barred by the statute of limitations since the amended complaint was filed more than three years and six months after a helicopter crash. Hammons v. Navarre, — So.3d —, 2017 Miss. App. LEXIS 215 (Miss. Ct. App. Apr. 18, 2017), aff'd, 252 So.3d 9, 2018 Miss. LEXIS 252 (Miss. 2018).

Client’s negligence or professional malpractice claims against the client’s court appointed attorney were time-barred because the three-year statute of limitations period began to run from the date of the client’s sentencing hearing as the client knew that the attorney had acted negligently when the client was sentenced as a habitual offender in that, at the time of the sentencing, the client informed the attorney that the client had not served a full year on one of the client’s convictions. Bradley v. Jordan, 182 So.3d 439, 2016 Miss. LEXIS 28 (Miss. 2016), overruled, Trigg v. Farese, 266 So.3d 611, 2018 Miss. LEXIS 469 (Miss. 2018).

Trial court erred in denying a bank’s motion for summary judgment on a guardian’s claims for conversion of a negotiable instruments and negligence/gross negligence because the claims were filed outside the three-year statute of limitations, the discovery rule was inapplicable to the conversion claim where the guardian conceded that the bank was not involved in an attorney’s fraudulent concealment, and the guardian lacked diligence in failing to obtain and review any account statements for more than a year and a half on one account and more than eight years on the other. Peoples Bank of Biloxi v. McAdams, 171 So.3d 505, 2015 Miss. LEXIS 392 (Miss. 2015).

Relying on a directive from the Mississippi Supreme Court in the Edwards decision, the United States Court of Appeals for the Fifth Circuit found that, under Miss. Code Ann. §15-1-49, a daughter’s cause of action for wrongful death accrued when the mother was diagnosed with breast cancer, not when knowledge of the injury and its cause were known. Barnes ex rel. Barnes v. Koppers Inc., 534 F.3d 357, 2008 U.S. App. LEXIS 13771 (5th Cir. Miss. 2008).

Discovery rule of Miss. Code Ann. §15-1-49(2) barred as untimely plaintiff’s action against a manufacturer for an allegedly defective implantable cardioverter defibrillator (ICD) because reasonable diligence would have put plaintiff on notice that the death of the decedent could have been caused by the ICD and that some negligent conduct occurred. Greer v. Medtronic, Inc., 2008 U.S. Dist. LEXIS 34376 (N.D. Miss. Apr. 25, 2008).

Where borrowers signed a loan agreement in 1995 and brought suit against the lender in 2001, negligence claim governed by the 3-year statute of limitations was time-barred because it arose at the time of the execution of the loan, when plaintiffs signed and received a copy of the terms of the contract, as opposed to at the time that the borrowers were first made aware that better terms existed. CitiFinancial Mortg. Co. v. Washington, 967 So. 2d 16, 2007 Miss. LEXIS 590 (Miss. 2007).

Insurance agent’s cause of action against the insurer did not accrue or occur pursuant to Miss. Code Ann. §15-1-49(1) until the insureds filed suit against him in 2000; the agent did not have a cause of action when the policy was sold in 1990, nor was he or should have been aware of the fraud allegedly committed by the insurer upon him and the insureds. Bullard v. Guardian Life Ins. Co. of Am., 941 So. 2d 812, 2006 Miss. LEXIS 634 (Miss. 2006).

Discharged Chapter 7 debtor’s legal malpractice claim against his bankruptcy attorney for alleged negligence in handling case arose prepetition, and thus was estate property, despite debtor’s claim that he was not injured until indicted, post-discharge, for bankruptcy fraud; debtor and attorney had prepetition relationship required to treat claim as arising when alleged misconduct occurred, and debtor should have discovered any discrepancies between actual assets and those listed on petition when he signed petition, as required for claim to accrue under Mississippi law. Wheeler v. Magdovitz (In re Wheeler), 137 F.3d 299, 1998 U.S. App. LEXIS 6192 (5th Cir. Miss. 1998).

In a negligence action against a tobacco company arising out of lung cancer allegedly sustained by the plaintiff as a result of cigarette smoking, the statute of limitations under §15-1-49 commenced to run upon discovery of the lung cancer. Schiro v. American Tobacco Co., 611 So. 2d 962, 1992 Miss. LEXIS 827 (Miss. 1992).

A discovery rule would be adopted in conjunction with §15-1-49 in the case of a negligence or products liability cause of action involving latent disease; the discovery rule adopted is identical to the rule provided in §15-1-49(2). The cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease. Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 1990 Miss. LEXIS 837 (Miss. 1990).

Medical malpractice action was not barred by statute of limitations where alleged negligent act occurred on June 28, 1974, foreign object was discovered in lining of patient’s heart on June 21, 1982, and action was filed on June 14, 1984, because enactment of specific statute of limitations, §15-1-36, dealing with malpractice tort claims, controlled over general statute, §15-1-49; specific statute defined date of accrual of action as being date of alleged act, omission, or neglect, or date injury would or with reasonable diligence might have been first known or discovered, and provided that it applied to claims which accrued on or after July 1, 1976; fact that different definition of accrual may have been accepted with respect to general 6-year statute of limitations was beside point, because that definition had been superseded by specific statute of limitations. Kilgore v. Barnes, 508 So. 2d 1042, 1987 Miss. LEXIS 2448 (Miss. 1987).

35. — —Heirship.

Suit to establish heirship was well within 6 year limitation period from event triggering running of statute, which was receipt of notice of heir’s potential interest in property, because statute does not begin to run until heir knows his status has been questioned and is not required to bring suit to establish rights unless and until there is question concerning his status as heir. Matter of Heirship of McLeod (Miss. 1987) 506 So. 2d 289. In re Heirship of McLeod, 506 So. 2d 289, 1987 Miss. LEXIS 2508 (Miss. 1987).

An illegitimate daughter’s petition to determine heirship was not a paternity action, and therefore was not barred by §15-1-49 when she failed to file suit within six years of reaching majority, since under §91-1-15, the determination of heirship could not be made prior to the decedent’s death, and, until then, her cause of action did not accrue. Estate of Kidd v. Kidd, 435 So. 2d 632, 1983 Miss. LEXIS 2600 (Miss. 1983).

36. —Joint causes of action.

A joint right of action for waste which accrues to remaindermen while they are infants is not barred by limitation as to any of them until the lapse of the statutory period after the youngest has attained his majority; but a joint right of action therefor which accrues to them after the eldest has attained his majority is barred as to all of them after the lapse of the statutory period. Learned v. Ogden, 80 Miss. 769, 32 So. 278, 1902 Miss. LEXIS 304 (Miss. 1902).

The six years’ limitation applies to claims of adult heirs for rent of land procured from their mother by duress, and is not suspended as to them by the minority of other heirs, the claims not being necessarily joint. Allen v. Leflore County, 80 Miss. 298, 31 So. 815 (Miss. 1902).

Where at the accrual of a joint cause of action one of the parties is not under disability the statute will run against all and when one is barred all are. Stauffer v. British & American Mortg. Co., 77 Miss. 127, 25 So. 299, 1899 Miss. LEXIS 46 (Miss. 1899).

37. —Computation of limitation period.

Where defendant has not been in the state at all, as well as where he resided here when the cause of action accrued and subsequently removed, in computing the six years the time of his absence is not to be counted. Robinson v. Moore, 76 Miss. 89, 23 So. 631, 1898 Miss. LEXIS 66 (Miss. 1898).

If a judgment by default, valid on its face, is vacated at a subsequent term on motion of defendant, and he pleads the statute of limitations, the time elapsed since the declaration was filed cannot be computed. Kelly v. Harrison, 69 Miss. 856, 12 So. 261, 1892 Miss. LEXIS 18 (Miss. 1892).

38. — Tolling of statute.

Pilot’s claims all accrued on the date of his injury, and the statute of limitations was not tolled because the pilot submitted no evidence sufficient to meet his burden of proof that manufacturers were not amenable to service during the limitations period; the pilot served or attempted service on all of the manufacturers soon after he filed his amended complaint. Hammons v. Navarre, — So.3d —, 2017 Miss. App. LEXIS 215 (Miss. Ct. App. Apr. 18, 2017), aff'd, 252 So.3d 9, 2018 Miss. LEXIS 252 (Miss. 2018).

Statute of limitations precluded a former client’s claims against an attorney for fraud, breach of contract, and legal malpractice because the statute of limitations began to run when the client sent a letter to the attorney terminating the attorney’s employment and on that same date received a copy of the employment contract which the client believed was altered. The complaint which the client filed with the Mississippi Bar did not toll the statute of limitations or require the client to exhaust administrative remedies before filing suit. Archer v. Creel, 217 So.3d 690, 2016 Miss. App. LEXIS 600 (Miss. Ct. App. 2016), cert. denied, 216 So.3d 1150, 2017 Miss. LEXIS 186 (Miss. 2017).

Plaintiff did not elaborate as to how or when he was able to discover that defendant had manufactured the bed in question, and thus there was insufficient information to conclude that anyone had concealed that fact, plus plaintiff offered no explanation as to why he could not sue defendant based on the information that was available; it was within the circuit court’s discretion to deny plaintiff’s request to amend his complaint, as he did not show that the statute of limitations was tolled due to fraudulent concealment, and his complaint was filed two years beyond the statute. Patel v. Hill-Rom Co., 194 So.3d 898, 2016 Miss. App. LEXIS 432 (Miss. Ct. App. 2016).

For fraudulent concealment purposes, plaintiff bore the burden of proving that defendant engaged in affirmative acts of concealment and that plaintiff acted with due diligence in attempting to discover defendant’s role but was not able to do so. Patel v. Hill-Rom Co., 194 So.3d 898, 2016 Miss. App. LEXIS 432 (Miss. Ct. App. 2016).

Circuit court erred in dismissing a driver’s personal injury complaint with prejudice because the driver exhibited good cause for not timely serving process on the insured where the record clearly showed that over a period of almost two years, the driver unsuccessfully attempted to locate the insured, the Secretary of State attempted to forward the summons to the insured, but it was returned unclaimed, the insured could not be located by the driver, the courts, or his own insurance carrier, and the circuit court failed to consider that the statute of limitations could be tolled. Darville v. Mejia, 184 So.3d 312, 2016 Miss. App. LEXIS 3 (Miss. Ct. App. 2016).

Circuit court properly granted an employer’s motion to dismiss–an employee’s action for assault, battery, intentional and negligent infliction of emotional distress, and breach of an employment contract as untimely because, while the employee was underage when employer allegedly began to sexually abuse her, she failed to show that, when her employer allegedly sexually abused her, she was of unsound mind, legal infancy, suffered a latent injury, or that there was something secretive or inherently undiscoverable about the alleged acts or wrongdoing, the discovery rule was inapplicable where the alleged wrongful acts were physical and the employee was aware of the wrongdoing when it happened. Reeg v. Keel, 174 So.3d 309, 2015 Miss. App. LEXIS 425 (Miss. Ct. App. 2015).

Worker’s action was not time-barred because his initial complaint tolled the statute of limitations for the entirety of the time that claim was pending. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 2015 Miss. LEXIS 189 (Miss. 2015).

Plaintiff’s claim was not time-barred by the three year statute of limitations under Miss. Code Ann. §15-1-49 because her claim was tolled until such time as she was aware of the injury and the cause of that injury. Cross v. Amtec Med., Inc., 2012 U.S. Dist. LEXIS 141508 (S.D. Miss. Sept. 30, 2012).

Welder’s products liability and failure to warn action, filed on August 31, 2004, against two manufacturers did not toll the three-year statute of limitations in Miss. Code Ann. §15-1-49 because the welder voluntarily dismissed the complaint on December 28, 2004; the welder’s subsequent complaint filed on November 14, 2005 was time-barred under §15-1-49 because the welder knew of the injury on September 3, 2002. Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 2010 Miss. LEXIS 639 (Miss. 2010).

Although the filing of a personal injury lawsuit tolled the three-year statute of limitations under Miss. Code Ann. §15-1-49 four days before its expiration, the limitations period resumed running at the end of the service of process period under Miss. R. Civ. P. 4(h) and, thus, dismissal with prejudice was proper where process was not served until six days after the expiration of the 120-day service period. Stutts v. Miller, 37 So.3d 1, 2010 Miss. LEXIS 146 (Miss. 2010).

In a case in which five car buyers brought their state law claims against an auto financier more than six years after their financing transactions, those claims were untimely. The claims were subject to the three-year limitations period in Miss. Code Ann. §15-1-49(1), and the buyers could not toll the limitations period by using Miss. Code Ann. §15-1-67 because they simply failed to allege a subsequent act of concealment separate from the alleged fraud underlying the cause of action. Archer v. Nissan Motor Acceptance Corp., 550 F.3d 506, 2008 U.S. App. LEXIS 25292 (5th Cir. Miss. 2008).

In a wrongful death case, a daughter’s claim was barred by the statute of limitations in Miss. Code Ann. §15-1-49. She raised her 42 U.S.C.S. § 9658 claim as an afterthought, and she overbroadly construed its preemptive scope; the daughter’s plea for the tolling of Miss. Code Ann. §15-1-49 by means of 42 U.S.C.S. § 9658 was rejected. Barnes ex rel. Barnes v. Koppers Inc., 534 F.3d 357, 2008 U.S. App. LEXIS 13771 (5th Cir. Miss. 2008).

Excess insurer’s fraud and other tort claims against parties involved in settling medical malpractice claims against two doctors were barred under the limitations periods in Miss. Code Ann. §§15-1-35,15-1-49, which were not tolled under Miss. Code Ann. §15-1-67 because a letter from counsel for one of the doctors, which letter was written one year before the insurer filed suit, invited the excess insurer to discuss the withdrawal of the doctor’s consent to settle, which the excess insurer alleged led to its payment obligations on behalf of another doctor whose primary coverage was exhausted, and counsel’s letter did not attempt to conceal anything from the excess insurer. Nat'l Union Fire Ins. Co. v. Blasio, 2008 U.S. Dist. LEXIS 42669 (N.D. Miss. May 23, 2008).

Trial court improperly granted summary judgment, pursuant to Miss. R. Civ. P. 56, to a paint company with respect to a child’s claims of injury resulting from ingestion of lead found in paint that the company manufactured because the child’s claims were not barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49, as the child was a minor when the claims accrued, and therefore the claims were subject to the savings statute, Miss. Code Ann. §15-1-59; because the child’s claims were improperly dismissed, he was denied his right to a jury trial as set forth in Miss. Const. Art. III, § 31, but the claims of the child’s mother were properly dismissed as time-barred. Pollard v. Sherwin-Williams Co., 955 So. 2d 764, 2007 Miss. LEXIS 31 (Miss. 2007).

Insureds’ claims against financial services companies were barred by a three-year limitations period of Miss. Code Ann. §15-1-49(1) and there was no basis for tolling due to fraudulent concealment in that the insureds were bound by the contents of the contracts they signed that contained the purchase of insurance with the loan, whether or not they read them, and there was no evidence of subsequent affirmative acts of concealment. Clay v. First Family Fin. Servs., 2006 U.S. Dist. LEXIS 58385 (N.D. Miss. Aug. 18, 2006).

Plaintiff’s personal injury claims against the manufacturers of products that allegedly contained asbestos were time-barred under the three-year statute of limitations in Miss. Code Ann. §15-1-49; although plaintiff properly filed his complaint within three years of his asbestosis diagnosis and the statute of limitations was tolled during the 120-day period in which plaintiff had to effect service of process, where plaintiff failed to effect service within 120 days, the statute of limitations resumed running and expired before plaintiff could refile his complaint. Riley v. Ga. Pac. Corp., 2006 U.S. Dist. LEXIS 1440 (N.D. Miss.), dismissed, 2006 U.S. Dist. LEXIS 1623 (N.D. Miss. Jan. 5, 2006).

Where borrowers claimed that they were misled into believing that they needed to obtain credit life and disability insurance in order to obtain loans, the court found that the borrowers’ claims, which accrued more than three years before the lawsuit was filed, were time-barred pursuant to Miss. Code Ann. §15-1-49; tolling pursuant to Miss. Code Ann. §15-1-67 was inapplicable because of affirmative disclosures made in the borrowers’ loan applications and the Federal Disclosure Statements. Benson v. Am. Heritage Life Ins. Co., 2006 U.S. Dist. LEXIS 49851 (S.D. Miss. July 14, 2006).

Because a nationwide class action brought against defendant lenders in state court was filed more than three years after plaintiff borrowers’ loan transactions, the class action did not toll the limitations period and could not revive the borrower’s claims which were already barred under Miss. Code Ann. §15-1-49. Smith v. First Family Fin. Servs., 436 F. Supp. 2d 836, 2006 U.S. Dist. LEXIS 45930 (S.D. Miss. 2006).

Summary judgment for bank was affirmed pursuant to statute of limitations in Miss. Code Ann. §15-1-49 as the bank customer’s possession of bank documents with clear statements presented on their face negated the bank customer’s argument that the statutory period should be extended beyond the three year period due to fraudulent concealment by the bank. Morgan v. Citizens Bank, 912 So. 2d 1133, 2005 Miss. App. LEXIS 744 (Miss. Ct. App. 2005).

Consumers’ civil antitrust action, which was filed against a distributor, was subject to the period of limitations for latent injuries, under Miss. Code Ann. §15-1-49(2), because the undertaking of a criminal conspiracy was seldom if ever, announced to the public, and the efforts of the distributor to engage in price fixing was just such a conspiracy. Carder v. BASF Corp., 919 So. 2d 258, 2005 Miss. App. LEXIS 448 (Miss. Ct. App. 2005).

Insureds’ fraud and misrepresentation claims arising out of the purchase of life insurance were dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) because the action was barred by the statute of limitations, Miss. Code Ann. §15-1-49, since the insureds did not allege that defendants engaged in any affirmative act or conduct that prevented the insureds from discovering their claims, which would have invoked the tolling provisions of the fraudulent concealment statute, Miss. Code Ann. §15-1-67. O'Bannon v. Guardian Life Ins. Co. of Am., 331 F. Supp. 2d 476, 2004 U.S. Dist. LEXIS 24314 (S.D. Miss. 2004).

Plaintiff who filed a complaint against a defendant but did not serve the complaint on the defendant within a 120-day period had to either re-file a complaint before the statute of limitation ran or show good cause for failing to serve process on the defendant within that 120-day period, otherwise, dismissal was proper; although tolled for the 120 days after the complaint was filed, the statute of limitations, Miss. Code Ann. §15-1-49, expired before the December 3 summons was issued, and the statute of limitations expired long before the victim filed his amended complaint in February 2003. Williams v. Fornett, 906 So. 2d 810, 2004 Miss. App. LEXIS 1151 (Miss. Ct. App. 2004).

Where investors alleged that investment companies were aware of their agent’s conversion of the investors’ funds before the criminal activity was publicly disclosed, neither fraudulent concealment nor equitable estoppel applied to toll the limitations periods; after the agent’s misconduct was discovered, the investors delayed filing their complaints against the companies until well after the limitations periods expired and there was no conduct of the companies that caused the investors’ undue delay. Joe v. Minn. Life Ins. Co., 337 F. Supp. 2d 821, 2004 U.S. Dist. LEXIS 19281 (S.D. Miss. 2004).

Summary judgment was granted to corporations’ on fraudulent misrepresentation claims because the tolling provisions of Miss. Code Ann. §15-1-67 were inapplicable, and thus individuals’ claims were barred by the three year statute of limitation in Miss. Code Ann. §15-1-49, where there was no evidence that the corporations engaged in affirmative acts of concealment that prevented the individuals from discovering their claims in a timely manner, in that the individuals’ allegations instead focused on the corporations’ alleged conduct prior to, and contemporaneous with, the purchase of the insurance policies. Bland v. Fleet Fin., Inc., 318 F. Supp. 2d 392, 2004 U.S. Dist. LEXIS 14997 (N.D. Miss. 2004).

Claims arising from loans that were used to buy insurance were time-barred because the insureds failed to prove an affirmative act of fraudulent concealment after completion of the insurance sales in order to toll the statute of limitations. Ross v. Citifinancial, Inc., 344 F.3d 458, 2003 U.S. App. LEXIS 18068 (5th Cir. Miss. 2003), cert. denied, 546 U.S. 813, 126 S. Ct. 335, 163 L. Ed. 2d 48, 2005 U.S. LEXIS 5535 (U.S. 2005).

Borrower’s misrepresentation and negligence claims against a credit insurer’s employee were time-barred and the statute was not tolled under Miss. Code Ann. §15-1-67 because the borrower received, but did not read, copies of all pertinent documents, which clearly stated that credit insurance was optional. Bell v. Am. Gen. Fin., Inc., 267 F. Supp. 2d 582, 2003 U.S. Dist. LEXIS 10718 (S.D. Miss. 2003).

Purchasers alleged facts sufficient to invoke the fraudulent inducement exception to the parole evidence rule because their allegations arose almost entirely out of false representations made by the agents to induce them to enter into contracts; therefore, given Mississippi precedent supporting a claim for fraud where the plaintiff did not read the contract but instead relied on the agent’s misrepresentations, the purchasers stated an arguably reasonable basis that they could establish a claim for fraudulent concealment, that the three-year statute of limitations under Miss. Code Ann. §15-1-49 had been tolled by fraudulent concealment, and that their claims were not time-barred. Anderson v. Equitable Life Assur. Soc'y of the United States, 248 F. Supp. 2d 584, 2003 U.S. Dist. LEXIS 3135 (S.D. Miss. 2003).

The rule of concealed fraud did not toll the statute of limitations in an action by a judgment creditor alleging a fraudulent conveyance of real property by the judgment debtor as the rule of concealed fraud cannot apply to matters of public record. O'Neal Steel, Inc. v. Millette, 797 So. 2d 869, 2001 Miss. LEXIS 31 (Miss. 2001).

The defendant was not equitably estopped from asserting the limitations period in an action to enforce a promissory note, notwithstanding that he continued to make 74 monthly payments after the balloon payment on the note became due, as there was no evidence that the plaintiff relied on the defendant or that he sought to induce the plaintiff’s reliance. EB, Inc. v. Smith, 757 So. 2d 1017, 2000 Miss. App. LEXIS 92 (Miss. Ct. App. 2000).

The limitations period for the enforcement of a promissory note was not tolled by the fact that the defendant continued to make 74 monthly payments after the balloon payment on the note became due since such payments did not unequivocally acknowledge when the balance was due, to whom the balance was due, and for what the balance was due, and, moreover, such payments did not contain a specification of the debt referred to and a promise to pay a fixed amount. EB, Inc. v. Smith, 757 So. 2d 1017, 2000 Miss. App. LEXIS 92 (Miss. Ct. App. 2000).

The discovery rule applied in an action seeking damages to property caused by the disposal of oil field waste buried in pits upon the property, where the waste included radioactive material produced by oil and gas exploration, and where the presence of the radioactive waste was detectable only through the use of a survey meter. Donald v. AMOCO Prod. Co., 735 So. 2d 161, 1999 Miss. LEXIS 125 (Miss. 1999).

The discovery rule is inapplicable in actions involving conversion of negotiable instruments unless the defendant asserting the statute of limitations is involved in the fraudulent concealment. Smith v. Franklin Custodian Funds, Inc., 726 So. 2d 144, 1998 Miss. LEXIS 526 (Miss. 1998).

The statute of limitations in a legal malpractice action was not tolled through fraudulent concealment even if the defendant attorney did fraudulently conceal his negligence since the plaintiffs, through the exercise of reasonable diligence, should have been able to discover the attorney’s negligence more than 6 years prior to the date on which the complaint was filed where there was very little that the plaintiffs alleged in their complaint that they did not know 9 years before the malpractice suit was filed. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

Products liability action against manufacturer of drug stelazine was barred by 6-year statute of limitations in §15-1-49, where last incidence of prescription of drug and onset of symptoms of side-effect condition occurred more than 6 years prior to commencement of suit; statute of limitations was not tolled because there was no evidence of fraudulent concealment of the plaintiff’s condition. Lindley v. Hamilton, 883 F.2d 360, 1989 U.S. App. LEXIS 13873 (5th Cir. Miss. 1989).

In an action for wrongful death filed by the surviving spouse and children after the statutory limitation period had passed, §15-1-59, the savings statute, did not toll the limitations period in favor of the children, since the surviving spouse was a person in esse who had the right to file suit for wrongful death during the six-year limitation period after decedent’s death, and thus the action was barred. Arender v. Smith County Hospital, 431 So. 2d 491, 1983 Miss. LEXIS 2633 (Miss. 1983).

Even though partial payment on a note executed and delivered in Alabama might operate in substance as a new promise under the Alabama law, the Mississippi statute relating to the remedy would be applicable in case of an attempt to enforce the obligation in Mississippi, and therefore such payments in Alabama would not toll the running of the limitation period, in view of a statutory provision that in actions founded upon contracts the case would not be taken out of the operation of the limitation statute, unless an acknowledgment or promise of the indebtedness should be made in writing signed by the party chargeable therewith. Montgomery v. Yarbrough, 192 Miss. 667, 6 So. 2d 925 (Miss. 1942).

In absence of proof of concealed fraud on part of insurer with respect to cause of insured’s death which would toll statute of limitations until discovery of true facts, action for double indemnity benefits held barred by six-year statute. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

The filing of declaration on November 14, 1936, with request to circuit clerk to issue summons at once in action on note which was due November 15, 1930, constituted the beginning of a suit which stopped running of six-year statute of limitation, notwithstanding clerk delayed issuance of summons until November 18, 1936, and summons was not served until December 3, 1936. Wood v. Peerey, 179 Miss. 727, 176 So. 721, 1937 Miss. LEXIS 77 (Miss. 1937).

Statement in trust deed that former trust deeds by grantors or grantor and wife remained in full force was promise to pay tolling limitation statute. Herron v. Land, 151 Miss. 893, 119 So. 823, 1929 Miss. LEXIS 252 (Miss. 1929).

Where wife signed homestead trust deed husband’s acknowledgment in writing of debt before bar of limitation statute bound wife. Herron v. Land, 151 Miss. 893, 119 So. 823, 1929 Miss. LEXIS 252 (Miss. 1929).

39. Service of process

Circuit court properly dismissed an injured driver’s claims against a delivery company and an employee for insufficient service of process and denied his motion to amend his complaint to add the employee’s actual employer as a defendant because the driver did not properly serve the company within the 120-day deadline, the company did not attempt to evade process or mislead the driver, he only attempted to serve the employee by publication and failed to do so in compliance with the Rules, the three-year statute of limitations ran before the employee was properly served, the driver failed to obtain a ruling on his motion for extension and failed to demonstrate good cause for extension, and the motion for leave to amend the complaint was moot. Hadley v. FedEx Ground Package Sys, — So.3d —, 2019 Miss. App. LEXIS 178 (Miss. Ct. App. Apr. 30, 2019).

40. Particular cases; miscellaneous.

Appellant argued that even though the trial court ruled that the general three-year limitations period applied to appellee’s claims, the chart included calculations from a seven-month period that fell outside the statute-of-limitations period, yet the trial court did not strike those particular calculations or provide for any other adjustment or explanation to the jury; the chart should not have been allowed into evidence. Waste Mgmt. of Miss. v. Jackson Ramelli Waste LLC, — So.3d —, 2019 Miss. App. LEXIS 373 (Miss. Ct. App. Aug. 6, 2019).

Circuit court properly denied a motion to dismiss a conversion claim on the grounds that it was untimely under Miss. Code Ann. §15-1-49 (Rev. 2012) where, based on the complaint, the bank could have wrongfully possessed the collateral for a promissory note when it auctioned it off and sold it, which was within three years of the date the complaint was filed. Covington Cnty. Bank v. Magee, 177 So.3d 826, 2015 Miss. LEXIS 517 (Miss. 2015).

As appellant failed to file a motion for extension of time to serve an estate until more than 120 days after filing the complaint, and as the statute of limitations (Miss. Code Ann. §15-1-49) expired thereafter, the trial court did not abuse its discretion in dismissing his suit against the estate with prejudice. Covington v. McDaniel (In re Estate of Necaise), 126 So.3d 49, 2013 Miss. App. LEXIS 108 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 598 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 601 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 610 (Miss. 2013).

Court of appeals erred in reversing an order granting an employer’s motion for summary judgment in a widow’s action alleging bad faith for failing to timely pay workers’ compensation benefits because the Mississippi Workers’ Compensation Commission’s final judgment affirming an administrative law judge’s order awarding the widow benefits marked the end of its involvement in the case, and since the widow’s suit was filed more than three years later, it was time-barred under the general three-year statute of limitations, Miss. Code Ann. §15-1-49; the plain language of Miss. Code Ann. §71-3-51 provided that “the final award of the Commission shall be conclusive and binding unless either party shall appeal,” and since no party appealed the Commission’s decision, the “unless” qualifier was irrelevant, and according to the statute’s very specific, unambiguous language, the Commission’s award was “final” and “conclusive and binding.” Harper v. Cal-Maine Foods, Inc., 43 So.3d 401, 2010 Miss. LEXIS 307 (Miss. 2010).

Plaintiff’s claim for breach of contract against an asbestos manufacturer was unsuccessful because plaintiffs did not timely submit their settlement documents to the manufacturer, as required by the settlement agreement, and the action was time-barred by Miss. Code Ann. §15-1-49(1). Everitt v. Pneumo Abex, LLC, 703 F. Supp. 2d 630, 2009 U.S. Dist. LEXIS 115837 (S.D. Miss. 2009), rev'd, 411 Fed. Appx. 726, 2011 U.S. App. LEXIS 2944 (5th Cir. Miss. 2011).

Whether lender’s claims were founded upon unwritten contracts, making them subject to the three-year limitations of Miss. Code Ann. §15-1-29, or whether they fell within the general three- year limitations of Miss. Code Ann. §15-1-49, the result was the same where (i) the last payment made upon the loans was in March 2001, (ii) the action to collect on the delinquent loans was filed in January 2005, (iii) the action to collect on the delinquent loans was filed approximately three years and ten months from the date of default, and (iv) the fact that the lender was fully aware that no payments were being made on these delinquent loans between March 2001 and January 2005 was beyond debate; thus, the claims were time-barred. Morgan v. Stevens, 989 So. 2d 482, 2008 Miss. App. LEXIS 489 (Miss. Ct. App. 2008).

After a guardianship account was drained, the twenty-four-year-old ward sued the bank for breaching its duty by allowing the funds on deposit to be converted without a court order. The claim was barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49, because it was not filed within three years of the ward turning twenty-one. Williams v. Duckett (In re Duckett), 991 So. 2d 1165, 2008 Miss. LEXIS 307 (Miss. 2008).

Beneficiaries’ action was not purely and exclusively equitable and they sought no equitable relief and did not seek to impose a constructive trust; the beneficiaries sought purely legal relief, namely compensatory and punitive money damages, such that the cause of action and the remedy of the case were not purely and exclusively equitable and the chancellor did not err in applying the general six-year statute of limitations of Miss. Code Ann. §15-1-49. Winters v. AmSouth Bank, 964 So. 2d 595, 2007 Miss. App. LEXIS 582 (Miss. Ct. App. 2007).

Since accrued royalties were personal property and not an interest in land, Miss. Code Ann. §15-1-7 was inapplicable; there being no specific statute of limitations for actions seeking recovery of accrued royalties, the general, three-year statute of Miss. Code Ann. §15-1-49(1) required the trustee to bring the action against the oil companies within three years next after the cause of such action accrued. Nygaard v. Getty Oil Co., 918 So. 2d 1237, 2005 Miss. LEXIS 422 (Miss. 2005).

Customers’ claims that they were fraudulently induced by insurance company employees to purchase credit insurance policies in connection with consumer loans were barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49 because all claims accrued at the time the loan agreements were executed because the customers were charged with notice where it was undisputed that each loan agreement contained an insurance disclosure which informed the borrower that credit insurance was not required and that the decision to make the loan would not be affected by the borrower’s decision. The customers failed to establish or allege any fraudulent concealment, therefore the customers could not avail themselves of the tolling mechanism provided under Miss. Code Ann §15-1-67. Andrus v. Ellis, 887 So. 2d 175, 2004 Miss. LEXIS 1343 (Miss. 2004).

Three statutes of limitation in Miss. Code Ann. §15-1-49(1) applied to bar landowners’ claim against the city for failing to enforce a contract with a railroad to maintain a city bridge. Hobson v. City of Vicksburg, 874 So. 2d 1026, 2004 Miss. App. LEXIS 541 (Miss. Ct. App. 2004).

In an action by Mississippi borrowers against an out-of-state lender and four Mississippi employees of the lender, the borrowers’ myriad claims against the employees were barred by the three-year limitation period of Miss. Code Ann. §15-1-49(1) and the employees had to be dismissed from the action, where the borrowers alleged that defendants wrongfully induced the borrowers to buy credit insurance when the borrowers obtained their loans, and where Miss. Code Ann. §15-1-67 did not toll the limitation period because the loan documents clearly showed that credit insurance was being purchased. Frye v. Am. Gen. Fin., Inc., 304 F. Supp. 2d 876, 2004 U.S. Dist. LEXIS 8489 (S.D. Miss.), amended, 307 F. Supp. 2d 836, 2004 U.S. Dist. LEXIS 19108 (S.D. Miss. 2004).

In borrowers’ suit against lenders, insurers, and individuals, arising from loan transactions, removal was appropriate based upon diversity of citizenship because the individuals were fraudulently joined; the claims against the individuals were time-barred and the borrowers failed to show fraudulent concealment for tolling of the statute of limitations. Owens v. First Family Fin. Servs., 2003 U.S. Dist. LEXIS 25345 (S.D. Miss. May 29, 2003).

Though a 29-year-old alleged son filed a paternity action not to enforce his alleged father’s child support obligations, but for the sole purpose of knowing his ancestry, the trial court properly dismissed the case as time-barred; whether Miss. Code Ann. §§93-9-9 or15-1-49 was the applicable statute of limitations was immaterial, as under the former, his suit was time-barred when he turned 21, and under the latter, when he turned 24 (i.e., three years after he turned 21). Autrey v. Parson, 864 So. 2d 294, 2003 Miss. App. LEXIS 685 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 43 (Miss. 2004), cert. denied, 543 U.S. 831, 125 S. Ct. 216, 160 L. Ed. 2d 49, 2004 U.S. LEXIS 5831 (U.S. 2004).

The three-year limitation provided for in the statute applied to an action by a judgment creditor in which it was alleged that the judgment debtor had fraudulently conveyed real property to his son. O'Neal Steel, Inc. v. Millette, 797 So. 2d 869, 2001 Miss. LEXIS 31 (Miss. 2001).

An action by an inmate regarding whether the forfeiture of his money and gold coins was legally had was barred by the statute of limitations where the inmate received notice of the forfeiture proceeds in 1989 but did not commence his action until seven years later. Sheriff v. Morris, 767 So. 2d 1062, 2000 Miss. App. LEXIS 452 (Miss. Ct. App. 2000).

An action against a bank arising from its attempt to collect a balance on a credit card which was stolen from the plaintiff was barred by the statute of limitations since the plaintiff failed to assert any acts of negligence by the bank after December 13, 1991, when $49.00 was erroneously charged to his account. Later actions by the bank in referring the account to several collection agencies did not constitute additional negligent activities for purposes of the statute of limitations. Hazzard v. Chase Manhattan Corp., 2000 U.S. Dist. LEXIS 10812 (N.D. Miss. July 21, 2000), aff'd, 275 F.3d 1078, 2001 U.S. App. LEXIS 25707 (5th Cir. Miss. 2001).

A suit against state of Mississippi education officials for alleged violation of educational rights assured under Art 4 of the Mississippi Constitution of 1868-1869 was time barred under §15-1-49, as the plaintiffs could not demonstrate that they were not aware of the harm inflicted by the Mississippi Constitution more than 3 years prior to the bringing of the suit. A-1 v. Molpus, 906 F. Supp. 375, 1995 U.S. Dist. LEXIS 18525 (S.D. Miss. 1995).

The limitation of action period provided in §15-1-49 applies to claims for deprivation of property brought pursuant to 42 USC § 1983. Bankston v. Pass Rd. Tire Center, Inc., 611 So. 2d 998, 1992 Miss. LEXIS 833 (Miss. 1992).

Where plaintiff, recipient of certain scholarship funds as financial assistance for medical school costs and tuition, was required to fulfill 4 year service obligation at approved health care facility, and signed private practice assignment agreement with health care facility, with such agreement stating that it would be “negotiable at the end of one year”, and accepted employment there, but was terminated 10 months later with the termination being memorialized as a non-renewal of employment agreement, §15-1-35 was not applicable to portion of complaint alleging termination of his employment, rather appropriate provision was “catch all” statute of limitations §15-1-49. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

Mississippi’s general statute of limitations is considered procedural and therefore applies to actions in Mississippi arising under laws of another jurisdiction. Bastoe v. Sterling Drug, Inc., 683 F. Supp. 586, 1988 U.S. Dist. LEXIS 3064 (S.D. Miss. 1988).

The 10-year limitation of §15-1-39 is applicable to both express and implied trusts. However, the application of §15-1-39 is limited in that the cause of action and the remedy of the case must be purely and exclusively equitable or the general 6-year statute of limitations will be applied. Wholey v. Cal-Maine Foods, Inc., 530 So. 2d 136, 1988 Miss. LEXIS 356 (Miss. 1988).

Once Wilson v. Garcia (1985) 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938, was decided, public was fairly on notice that in Mississippi one-year limitations period might well be chosen over 6-year limitations period as more appropriate period for actions under 42 USCS § 1983. Hanner v. Mississippi, 833 F.2d 55, 1987 U.S. App. LEXIS 15691 (5th Cir. Miss. 1987).

Even if §15-1-49 was applicable to disciplinary proceedings against an attorney, it would not be a bar to an action against the attorney by the State Bar, where the Bar had no way of knowing of attorney’s failure to establish a guardianship account. Pitts v. Mississippi State Bar Asso., 462 So. 2d 340, 1985 Miss. LEXIS 1845 (Miss. 1985).

A party who pled the ten-year statute of limitations in §15-1-7 could not thereafter on appeal claim that she had sufficiently raised the general limitation statute of six years set forth in §15-1-49. Estate of Miller v. Miller, 409 So. 2d 715, 1982 Miss. LEXIS 1862 (Miss. 1982).

A suit on a credit memorandum issued to plaintiff in 1958 was barred by the 6 year statute of limitations where the period for demand was not indefinite, where plaintiff made no attempt to use the credit between 1958 and 1972, and where it did not communicate with defendant at all concerning the credit between 1963 and 1972; nor was the statute of limitations tolled until defendant’s successor corporation first qualified to do business in Mississippi where such contention was raised for the first time on appeal and there was no showing that consideration of such issue was necessary to prevent a miscarriage of justice. Valley Cement Industries, Inc. v. Midco Equipment Co., 570 F.2d 1241, 1978 U.S. App. LEXIS 11819 (5th Cir. Miss. 1978).

Mississippi’s general statute of limitations is considered procedural and therefore applies to actions in Mississippi arising under laws of another jurisdiction. Bastoe v. Sterling Drug, Inc., 683 F. Supp. 586, 1988 U.S. Dist. LEXIS 3064 (S.D. Miss. 1988).

This section governed the tort aspect of an action alleging that a television set malfunctioned, causing a fire that destroyed most of plaintiffs’ home, but was inapplicable to their breach of implied warranties claim; plaintiffs’ negligence and strict liability in tort claims were not time-barred under this section, even though the television set had been manufactured and sold more than six years before the action was commenced, where there was no showing that plaintiffs knew or should have known of the alleged defect prior to the fire and the statute of limitations thus did not begin to run until the date of the fire. Maly v. Magnavox Co., 460 F. Supp. 47, 1978 U.S. Dist. LEXIS 15359 (N.D. Miss. 1978).

Although plaintiff’s action for abuse of process and malicious prosecution was primarily based on his 1964 arrest and 1966 conviction for criminal contempt, where the prosecution against him was not finally dismissed until August, 1968, his cause of action accrued within six years prior to commencement of suit in September, 1969. Hyde Constr. Co. v. Koehring Co., 387 F. Supp. 702, 1974 U.S. Dist. LEXIS 11355 (S.D. Miss. 1974), modified in part and rev'd in part, 546 F.2d 1193, 1977 U.S. App. LEXIS 10056 (5th Cir. Miss. 1977), disapproved, Suthoff v. Yazoo County Industrial Dev. Corp., 722 F.2d 133, 1983 U.S. App. LEXIS 14245 (5th Cir. Miss. 1983).

A counterclaim for replevin of goods sold under a written conditional sales contract is governed by the 6-year statute of limitations. Paul O'Leary Lumber Corp. v. Mill Equipment, Inc., 332 F. Supp. 1144, 1970 U.S. Dist. LEXIS 11009 (S.D. Miss. 1970), aff'd, 448 F.2d 536, 1971 U.S. App. LEXIS 8001 (5th Cir. Miss. 1971).

Stockholder’s action for redemption of corporate stock, which had been pledged as collateral to secure an indebtedness, and for an accounting would have been barred in six years after knowledge of the action of the corporation in claiming legal title thereto and retiring the stock. Hudson v. Belzoni Equipment Co., 203 Miss. 212, 33 So. 2d 796, 1948 Miss. LEXIS 252 (Miss. 1948).

41. — Insurance.

After a worker got a workers’ compensation award against an employer, the three-year statute of limitations in Miss. Code Ann. §15-1-49(1) barred the worker’s estate’s subsequent claim under Miss. Code Ann. §71-3-83(1) to hold the employer’s principal personally liable because the worker and the estate waited 12 years after learning the employer had no insurance to assert the claim. Jarrett v. Dillard, 167 So.3d 1207, 2014 Miss. App. LEXIS 380 (Miss. Ct. App. 2014), rev'd, 167 So.3d 1147, 2015 Miss. LEXIS 348 (Miss. 2015).

Insured’s action against an insurer for uninsured/underinsured motorist coverage, filed on September 26, 2008, was time-barred under Miss. Code Ann. §15-1-49 because the statute of limitations began to run on November 30, 2004, the date a default judgment was entered against a driver, proving the driver was uninsured and the tortfeasor; the insured was aware of her damages on the date of the default judgment. Madison v. Geico Gen. Ins. Co., 49 So.3d 1166, 2010 Miss. App. LEXIS 663 (Miss. Ct. App. 2010).

Insureds’ claim for negligent misrepresentation, which alleged that their insurer’s agent stated that the insureds did not need to purchase flood insurance, was time barred under the three-year limitations period in Miss. Code Ann. §15-1-49 where the agent’s alleged misstatements were uttered six years before the insureds filed suit. Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 2007 U.S. App. LEXIS 20947 (5th Cir. Miss. 2007), cert. denied, 552 U.S. 1310, 128 S. Ct. 1873, 170 L. Ed. 2d 745, 2008 U.S. LEXIS 3106 (U.S. 2008).

In a tort action against an insurer based on an agent’s alleged oral misrepresentation as to payment terms, the limitations period of Miss. Code Ann. §15-1-49 was not tolled because the insured had the written policy in hand and thus could not demonstrate that some affirmative act was done to prevent discovery of the actual terms. Wilbourn v. Equitable Life Assur. Soc'y of the United States, 998 So. 2d 439, 2007 Miss. App. LEXIS 501 (Miss. Ct. App. 2007), rev'd, 998 So. 2d 430, 2008 Miss. LEXIS 602 (Miss. 2008).

Insurer’s right to subrogation under Miss. Code Ann. §83-11-107 does not transform into a right to “equitable indemnification” merely because the limitations period in Miss. Code Ann. §15-1-49 has run on its subrogation right, even where the limitations period expires owing to no fault of the insurer. Miss. Farm Bureau Cas. Ins. Co. v. Orme, 422 F. Supp. 2d 685, 2006 U.S. Dist. LEXIS 12674 (S.D. Miss. 2006).

Where the debtors filed suit against mortgage and insurance companies for breach of fiduciary duties and negligent mispresentation more than four years after receiving their mortgage loans, the case was barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49. Carter v. Citigroup, Inc., 938 So. 2d 809, 2006 Miss. LEXIS 366 (Miss. 2006).

Insurer of a passenger and an insured could not proceed on a claim for “equitable indemnification” against the insured to recover a sum paid to the passenger under an underinsured/uninsured motorist policy after he was struck by the insured’s car; the insurer could proceed only on a claim of subrogation under Miss. Code Ann. §83-11-107, but because the claim was barred by the statute of limitations in Miss. Code Ann. §15-1-49, the insurer had no viable claim against the insured. Miss. Farm Bureau Cas. Ins. Co. v. Orme, 422 F. Supp. 2d 685, 2006 U.S. Dist. LEXIS 12674 (S.D. Miss. 2006).

Statute of limitations on an insured’s claim for uninsured motorist benefits expired on August 8, 2003, where the insured admitted that she knew the alleged tortfeasor was uninsured on August 8, 2000, the date of the accident. As the insured never filed a claim against the insurer during that period, the insured’s claim was now barred by the three-year statute of limitations. Fid. & Guar. Ins. Underwriters v. Sullivan, 2006 U.S. Dist. LEXIS 2527 (N.D. Miss. Jan. 11, 2006).

Plaintiffs’ claim for fraud was barred by the statute of limitations in Miss Code Ann. §15-1-49 because the policies plaintiffs bought from an insurance company explained the terms, and thus nothing prevented plaintiffs from discovering the terms of the policy pursuant to Miss. Code Ann. §15-1-67 even if they were different from what the company and its agent represented. Parker v. Horace Mann Life Ins. Co., 949 So. 2d 57, 2006 Miss. App. LEXIS 374 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 108 (Miss. 2007).

Consumers’ fraud action against lenders in their sale of credit insurance with consumer loans was barred by the three-year limitations period of Miss. Code Ann. §15-1-49, and consumers failed to show evidence of an affirmative act of fraudulent concealment after the initial insurance sale, as required under Miss. Code Ann. §15-1-67, in order to toll the limitations period. Liddell v. First Family Fin. Servs., 146 Fed. Appx. 748, 2005 U.S. App. LEXIS 18411 (5th Cir. Miss. 2005).

Claims brought by a number of borrowers against nondiverse employees of a lender arising from sales of credit insurance were time barred, as (1) the limitations period was not tolled under Miss. Code Ann. §15-1-67 due to fraudulent concealment absent a fiduciary relationship between the employees and the borrowers and (2) the borrowers did not act with due diligence as required under §15-1-67 or for application of the discovery rule under Miss. Code Ann. §15-1-49(2), as the borrowers’ loan documents disclosed all of the information concerning credit insurance that allegedly was misrepresented or concealed. Anderson v. City Fin. Co., 2003 U.S. Dist. LEXIS 25226 (S.D. Miss. July 11, 2003).

Insureds’ claim against an individual insurance agent for fraudulent misrepresentation was barred by the three-year statute of limitations, and the statute of limitations was not tolled because the insureds presented no evidence of any affirmative acts of concealment by the agent ; moreover, if the insureds had read the policies, they would have known that the agents were not authorized to change the terms of the contract, and that the policies stated nothing about receiving retirement benefits at age 65. Smith v. Union Nat'l Life Ins. Co., 286 F. Supp. 2d 782, 2003 U.S. Dist. LEXIS 17783 (S.D. Miss. 2003).

Insured’s claims related to an alleged one-time act or omission relating to the sale of the insurance policy in question and did not assert that the insurer was involved in continual unlawful acts, thus, the statute of limitations was not tolled, and the insured’s suite was barred. Lady v. Jefferson Pilot Life Ins. Co., 241 F. Supp. 2d 655, 2001 U.S. Dist. LEXIS 24991 (S.D. Miss. 2001).

The six-year statute of limitations codified at 28 U.S.C.S. § 2415(a), rather than the three-year statute of limitations contained in this section, applied to an action by an insurance company to recover damages caused by the appellants’ intentional act of arson that damaged property insured by it since the mortgagee was a federal agency and the insurance company sued as the subrogee of the federal agency. Durr v. American Nat'l Prop. & Cas. Co., 796 So. 2d 215, 2000 Miss. LEXIS 152 (Miss. 2000).

The statute of limitations barred causes of action for breach of contract, fraud, breach of duties of good faith and fair dealing and conspiracy asserted against an insurance company based upon the manner in which a series of health insurance policies were allegedly developed, advertised, marketed. Greco v. Torchmark Corp., 1999 U.S. Dist. LEXIS 17894 (N.D. Miss. Oct. 29, 1999).

An insurer was notified of a claim, which arose from an automobile accident between an insured and an uninsured motorist, well within the applicable 6-year statute of limitations set forth in §15-1-49, even though the insurer was first notified of the accident approximately 6 1/2 years after the date of the accident, where the insured was 17 years old when she was injured in the accident, and therefore, pursuant to §15-1-59, the statute of limitations did not begin to run against her until she reached her 21st birthday. The policy and purpose behind the Uninsured Motorist Act is to provide the same protection to one injured by an uninsured motorist as that individual would have if injured by a financially responsible driver. Thus, since the insured’s cause of action against the uninsured motorist was not barred, her claim against the insurer was viable; since uninsured motorist coverage was purchased, the insurer had an obligation to protect the insured as long as the claim against the uninsured motorist was permitted. Lawler v. Government Employees Ins. Co., 569 So. 2d 1151, 1990 Miss. LEXIS 534 (Miss. 1990).

Where owners of a television set sent it to be repaired, where, after it was repaired, it caught fire and damaged the owner’s house, and where the owners executed a release and subrogation receipt to the insurance company, which later filed a complaint against the repair shop, suit against the repair shop was barred by §15-1-49 on the basis that the statute of limitations began running against the owners on the claim on the day of the fire; moreover, the fact that the insurance company later became subrogated to the rights of the owners did not operate to extend the period within which the suit could be brought simply because the insurance company was substituted in the place of the owners and succeeded to their rights and remedies in their claim against the repair shop. Indiana Lumbermen's Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 1984 Miss. LEXIS 1886 (Miss. 1984).

42. —Real property, deeds, etc.

In a case in which the homeowner suffered recurring problems with flash flooding, which caused water to enter his home, the chancery court did not err in granting summary judgment in favor of the neighbors as the homeowner’s claim against the neighbors was barred by the three-year statute of limitations because the latest date on which the homeowner discovered the injury was July 3, 2010 - the date of the second flooding incident; and the homeowner amended his suit to add the neighbors as defendants on April 29, 2014, well over three years later. Milam v. Kelly, — So.3d —, 2019 Miss. App. LEXIS 361 (Miss. Ct. App. July 30, 2019).

In a case in which the homeowner suffered recurring problems with flash flooding, which caused water to enter his home, the continuing torts doctrine did not apply because the flooding of the homeowner’s home constituted a continual ill effect, not a continual unlawful act. Milam v. Kelly, — So.3d —, 2019 Miss. App. LEXIS 361 (Miss. Ct. App. July 30, 2019).

In a case in which the homeowner suffered recurring problems with flash flooding, which caused water to enter his home, the three-year statute of limitations was not tolled based on the doctrine of fraudulent concealment because the homeowner failed to present evidence showing that the neighbors were aware that their wooden fence and landscaping were the cause of the flash flooding; and the homeowner presented no evidence of an affirmative act by the neighbors to prevent the discovery of his claim. Milam v. Kelly, — So.3d —, 2019 Miss. App. LEXIS 361 (Miss. Ct. App. July 30, 2019).

General three-year statute of limitations applied to appellant’s claims for equitable distribution of certain property; the chancellor found that appellant failed to prove all of the necessary elements of a partnership and the statute of limitations began on the closing date of the property, and thus appellant’s claims were barred by the statute of limitations. Carlson v. Brabham, 199 So.3d 735, 2016 Miss. App. LEXIS 32 (Miss. Ct. App.), cert. denied, 203 So.3d 597, 2016 Miss. LEXIS 395 (Miss. 2016).

Mortgagor’s wrongful foreclosure claim was time-barred under Miss. Code Ann. §15-1-49 as it was filed 10 years after the foreclosure; Miss. Code Ann. §15-1-7 applied to actions to recover land, not to actions for wrongful. foreclosure. Tenn. Props. Inc. v. Gillentine, 66 So.3d 695, 2011 Miss. App. LEXIS 329 (Miss. Ct. App. 2011).

Summary judgment was properly granted to a trustee in a prior owner’s action to set aside a warranty deed transfer and a trust six years later because the three-year statute of limitations in Miss. Code Ann. §15-1-49 applied, rather than the ten-year period in Miss. Code Ann. §15-1-7. Concealed fraud did not toll the limitations period since the instrument here was recorded as a matter of public record. McWilliams v. McWilliams, 970 So. 2d 200, 2007 Miss. App. LEXIS 779 (Miss. Ct. App. 2007), overruled, Lott v. Saulters, 133 So.3d 794, 2014 Miss. LEXIS 53 (Miss. 2014).

Statute of limitations for Mississippi landowner’s claims asserting due process taking violations, equal protection violations, and discrimination on account of race was Mississippi’s 3-year residual statute of limitations. Taylor v. County of Copiah, 937 F. Supp. 573, 1994 U.S. Dist. LEXIS 20977 (S.D. Miss. 1994), aff'd, 51 F.3d 1042, 1995 U.S. App. LEXIS 8212 (5th Cir. Miss. 1995).

Ten-year limitation period of Code 1942, § 709, applies to a bill to set aside a deed and to hold grantee as trustee of the land for benefit of complainants, neither the three-year limitation period of Code 1942, § 729, nor the six-year period of this section [Code 1942, § 722] being applicable when accounting feature contained in bill is merely incidental. Burton v. Gibbes, 204 Miss. 248, 37 So. 2d 285, 1948 Miss. LEXIS 359 (Miss. 1948).

43. —Family relationships, heirships, estates.

Decedent’s son was no mere debtor but rather an heir to the decedent’s estate, properly brought into the estate matter through a waiver of service of process. The chancellor properly determined that recovery of $91,700 in loans made within three years prior to the executor’s motion for accounting was not barred by the statute of limitations and, thus, the decedent’s son either had to repay the estate or have his distributive share decreased by this amount. Kennedy v. Estate of Kennedy, 164 So.3d 1033, 2014 Miss. App. LEXIS 545 (Miss. Ct. App. 2014), cert. denied, 166 So.3d 38, 2015 Miss. LEXIS 309 (Miss. 2015).

Ward’s petition against a guardian’s girlfriend was properly within the statute of limitations because the ward filed the petition just a few months after discovering that the girlfriend potentially was involved in misusing his guardianship money. In re Guardianship of McClinton, 157 So.3d 862, 2015 Miss. App. LEXIS 44 (Miss. Ct. App. 2015).

Miss. Code Ann. §15-1-49 did not time-bar a disabled sister’s misappropriation suit against her brother because her injuries were latent, under Miss. Code Ann. §15-1-49(2), as he hid the injuries by using her mental status, his power of attorney over her, and his control of her finances, so the statute did not begin to run until she learned of her possible claim. Aldridge v. Aldridge, 168 So.3d 1127, 2014 Miss. App. LEXIS 149 (Miss. Ct. App.), cert. denied, 152 So.3d 1176, 2014 Miss. LEXIS 607 (Miss. 2014).

Though a 29-year-old alleged son filed a paternity action not to enforce his alleged father’s child support obligations, but for the sole purpose of knowing his ancestry, the trial court properly dismissed the case as time-barred; whether Miss. Code Ann. §§93-9-9 or15-1-49 was the applicable statute of limitations was immaterial, as under the former, his suit was time-barred when he turned 21, and under the latter, when he turned 24 (i.e., three years after he turned 21). Autrey v. Parson, 864 So. 2d 294, 2003 Miss. App. LEXIS 685 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 43 (Miss. 2004), cert. denied, 543 U.S. 831, 125 S. Ct. 216, 160 L. Ed. 2d 49, 2004 U.S. LEXIS 5831 (U.S. 2004).

Limitations period regarding a foreign conservator’s action against a guardian alleging the unauthorized expenditure of an estate’s funds did not begin running until the guardian filed his final accounting. United States Fid. & Guar. Co. v. Melson, 809 So. 2d 647, 2002 Miss. LEXIS 100 (Miss. 2002).

Section15-1-25, which specifically states that a suit against an executor or administrator must be filed within 4 years of the qualification of the executor or administrator, is an example of the legislature carving out a specific statute of limitations period in order to preempt the general 6-year limitations, and therefore the specific statute of §15-1-25 preempts the general statute of §15-1-49. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

The six-year statute of limitations is inapplicable to suits brought by illegitimates under §91-1-15 whose cause of action accrued prior to July 1, 1981. In re Estate of Smiley, 530 So. 2d 18, 1988 Miss. LEXIS 333 (Miss. 1988).

General six-year statute of limitation applies to heirship proceedings where no specific statute of limitations was applicable. In re Heirship of McLeod, 506 So. 2d 289, 1987 Miss. LEXIS 2508 (Miss. 1987).

Action by illegitimate to be adjudicated son of deceased and to be allowed to share in estate which is brought within 3 years of July 1, 1981, date enactment of amendment of §91-1-15 is timely, notwithstanding fact that suit is brought 14 years after death of deceased, so long as death occurred prior to July 1, 1981. Berry v. Berry, 463 So. 2d 1031, 1984 Miss. LEXIS 1830 (Miss. 1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 73, 1985 U.S. LEXIS 3348 (U.S. 1985).

The motion of an illegitimate daughter of decedent seeking a declaration that she was his heir-at-law was not barred by the six-year statute of limitations set forth in §15-1-49, even though it was filed more than six years after she had reached majority. Stevenson v. Daniels, 446 So. 2d 597, 1984 Miss. LEXIS 1651 (Miss. 1984).

In an action by an illegitimate child demanding that she be declared the heir of her natural father, capable of inheriting from him under the Mississippi laws of descent and distribution, the order entered in favor of the illegitimate daughter would be reversed and the suit dismissed where the time for bringing the action was six years from the date of the daughter’s majority (§15-1-49) but the action was not commenced until 18 years after that date. Knight v. Moore, 396 So. 2d 31, 1981 Miss. LEXIS 1984 (Miss.), cert. denied, 454 U.S. 817, 102 S. Ct. 95, 70 L. Ed. 2d 86, 1981 U.S. LEXIS 3122 (U.S. 1981).

44. —Employment.

In an employment case in which a former employer filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss, any claim by a pro se former employee of wrongful termination was barred by the three-year statute of limitations in Miss. Code Ann. §15-1-49; the employee filed his initial complaint on January 14, 2014, alleging that his former employer terminated his employment on July 1, 2008. De Graffenried v. Smithway Motor Xpress, Inc., — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 176075 (N.D. Miss. Dec. 22, 2014).

Chancery court properly ruled that a teacher’s claim for relief was barred by the statute of limitations because she failed to refile her complaint in chancery court until she again alleged a breach of contract and sexual discrimination as an original complaint; since the teacher failed to properly perfect an appeal of the school district’s decision affirming her termination and to obtain federal ancillary jurisdiction over her state-law claim, no tolling of the statute of limitations occurred. Lacour v. Claiborne County Sch. Dist., 119 So.3d 1128, 2013 Miss. App. LEXIS 481 (Miss. Ct. App. 2013).

Discriminatory discharge action under federal civil rights law (42 USCS § 1981) is not barred by one year statute of limitations for enumerated intentional torts, but is governed by residual statute of limitations which provides 6-year limitation period. Kozam v. Emerson Electric Co., 711 F. Supp. 313, 1989 U.S. Dist. LEXIS 4249 (N.D. Miss. 1989).

Section 15-1-49 was applicable to an employment discrimination action brought under 42 USCS §§ 1981, 1983. Walls v. Mississippi State Dep't of Public Welfare, 542 F. Supp. 281, 1982 U.S. Dist. LEXIS 12810 (N.D. Miss. 1982), aff'd in part and rev'd in part, 730 F.2d 306, 1984 U.S. App. LEXIS 23257 (5th Cir. Miss. 1984) but see Walls v. Mississippi State Dep't of Public Welfare, 730 F.2d 306, 1984 U.S. App. LEXIS 23257 (5th Cir. Miss. 1984).

Job discrimination case initiated under the civil rights statute was governed by Mississippi’s catch-all statute providing a six-year limitation period. Truvillion v. King's Daughters Hospital, 614 F.2d 520, 1980 U.S. App. LEXIS 19127 (5th Cir. Miss. 1980).

The 6-year statute of limitations would be applied in an employment discrimination action brought under 42 USCS § 1981. Heath v. D. H. Baldwin Co., 447 F. Supp. 495, 1977 U.S. Dist. LEXIS 16111 (N.D. Miss. 1977).

In an employment discrimination action pursuant to 42 USC § 1981, the general six-year statute of limitations provided by §15-1-49 rather than the contractual three-year statute of limitations provided by §15-1-29 would be applicable even though a mere claim for back pay would ordinarily be governed by the three-year statute. Walton v. Utility Products, Inc., 424 F. Supp. 1145, 1976 U.S. Dist. LEXIS 13379 (N.D. Miss. 1976).

45. —Civil rights.

In an employment termination case alleging tort claims and claims under 42 U.S.C.S. § 1983 in which a former teacher’s aide argued on appeal that Miss. Code Ann. §15-1-49 should be tolled because in the first case, his appeal from the school board’s decision to terminate his employment, the circuit court failed to rule on certain Miss. R. Civ. P. 60 motions, that could not toll the statutes of limitations for his claims. Davis v. Biloxi Pub. Sch. Dist., 43 So.3d 1135, 2009 Miss. App. LEXIS 765 (Miss. Ct. App. 2009), cert. dismissed, 49 So.3d 106, 2010 Miss. LEXIS 487 (Miss. 2010).

Eighth Amendment claims for equitable relief made under 42 U.S.C.S. § 1983 by death-sentenced inmates challenging their method of execution were barred by the three-year statute of limitations of Miss. Code. Ann. §15-1-49 in that the claims accrued after completion of direct review or the date when the lethal injection statute of Miss. Code Ann. §99-19-51 became effective and the limitations period was not tolled by Miss. Code Ann. §15-1-67 or by equitable estoppel. Walker v. Epps, 550 F.3d 407, 2008 U.S. App. LEXIS 25327 (5th Cir. Miss. 2008), cert. denied, 558 U.S. 829, 130 S. Ct. 57, 175 L. Ed. 2d 45, 2009 U.S. LEXIS 5526 (U.S. 2009).

Federal civil rights action under 42 U.S.C.S. § 1983 was governed by the three-year statute of limitations under Mississippi’s residual statute of limitations for personal injury actions, Miss. Code Ann. §15-1-49; a plaintiff was required to file his complaint within three years of the date his action accrued or when he had a complete and present cause of action. Giles v. Stokes, 988 So. 2d 926, 2008 Miss. App. LEXIS 419 (Miss. Ct. App. 2008).

Federal civil rights action under 42 USCS § 1983 is governed by 3-year statute of limitations under §15-1-49. James v. Sadler, 909 F.2d 834, 1990 U.S. App. LEXIS 14847 (5th Cir. Miss. 1990).

For actions in Mississippi brought under 42 USCS § 1983 accruing before Wilson v. Garcia (1985) 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938, appropriate limitations period shall be either (1) longer pre-Wilson period, commencing at time action accrued, or (2) post-Wilson one-year period, commencing with date of Wilson decision, whichever expires first. Hanner v. Mississippi, 833 F.2d 55, 1987 U.S. App. LEXIS 15691 (5th Cir. Miss. 1987).

The Mississippi six-year catch-all statute (Code §15-1-49) controlled an action pursuant to 42 USCS § 1983 against a city, its police department and various policemen asserting deprivation of constitutional right to freedom from physical abuse and intimidation which action allegedly occurred when in the course of arresting and jailing the plaintiff two policemen hurled him head first into the concrete floor and wall of a cell. Morrell v. Picayune, 690 F.2d 469, 1982 U.S. App. LEXIS 24429 (5th Cir. Miss. 1982).

Six-year limitation period contained in §15-1-49 applies to actions brought under 42 USCS § 1981. Jones v. Birdsong, 530 F. Supp. 221, 1980 U.S. Dist. LEXIS 17012 (N.D. Miss. 1980), aff'd, 679 F.2d 24, 1982 U.S. App. LEXIS 19001 (5th Cir. Miss. 1982).

The applicable statute of limitations for an action for the denial, under color of state law, of rights secured by the constitution and laws of the United States, where the wrongs complained of were an alleged abuse of the Mississippi statutory deannexation procedure, was Mississippi’s catch-all statute providing a six-year limitation. Franklin v. Marks, 439 F.2d 665, 1971 U.S. App. LEXIS 11585 (5th Cir. Miss. 1971).

46. Corporations.

Where a shareholder allegedly entered into a settlement agreement based on fraud, the shareholder’s claims against a corporate officer, a securities company, and others were time-barred because, inter alia, (1) the shareholder admitted that the shareholder became suspicious about the corporation’s environmental liability as far back as 1993, and (2) an alleged “firm commitment letter” was not a guarantee that the securities company would underwrite the corporation’s public offering upon which the shareholder could have relied. Pope v. Sorrentino, 992 So. 2d 1194, 2008 Miss. App. LEXIS 228 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 531 (Miss. 2008).

OPINIONS OF THE ATTORNEY GENERAL

A cause of action which accrued prior to July 1, 1989, would be controlled by six year statute of limitations. Gibson, Sept. 24, 1990, A.G. Op. #90-0681.

A refund of erroneously paid taxes may be made for taxes that were paid within three years prior to the date the petition seeking such refunds was filed with the board of supervisors. See Sections 27-73-3 and 15-1-49. Fortier, February 23, 1996, A.G. Op. # 96-0087.

Since there is no specific statute that prescribes the time within which a claim for a refund of erroneously paid taxes must be made, the three year period of limitation provided for in Section 15-1-49 applies. Reynolds, October 4, 1996, A.G. Op. #96-0689.

Backpay, to which a municipal employee is legally entitled pursuant to the personnel policies and procedures adopted by the mayor and commissioners of a city, can be paid at any time prior to the running of the applicable statute of limitations set out in Section 15-1-49. If the statute has run the city may not disregard such statute of limitations and may not compensate the employee with backpay. Twiford, November 1, 1996, A.G. Op. #96-0636.

If otherwise exempt property becomes subject to taxation by way of a lease or other arrangement with a private party, then the three- year limitation would be applicable to refunds relating to the overpayment of such taxes. Stark, Apr. 15, 2005, A.G. Op. 05-0116.

RESEARCH REFERENCES

ALR.

What constitutes a contract in writing within statute of limitations. 3 A.L.R.2d 809.

When statute of limitation commences to run against damage from overflow of land caused by artificial construction or obstruction. 5 A.L.R.2d 302.

Running of statute of limitations against claim for services rendered over extended period under indefinite employment not fixing time of payment. 7 A.L.R.2d 198.

Change in party after statute of limitations has run. 8 A.L.R.2d 6.

Failure to comply with statute requiring one involved in automobile accident to stop or report as affecting question as to suspension or tolling statute of limitations. 10 A.L.R.2d 564.

When limitation period begins to run against cause of action or claim for contracting of disease. 11 A.L.R.2d 277.

Enforcement of stock subscription after suit on note of subscriber is barred by statute of limitations. 11 A.L.R.2d 1380.

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa. 12 A.L.R.2d 815.

Limitation of actions for annulment of marriage. 52 A.L.R.2d 1163.

When statute of limitations begins to run against note payable on demand. 71 A.L.R.2d 284.

What statute of limitation covers action for indemnity. 57 A.L.R.3d 833.

What statute of limitations governs action for interference with contract or other economic relations. 58 A.L.R.3d 1027.

Statute of limitations in illegitimacy or bastardy proceedings. 59 A.L.R.3d 685.

Choice of law as to applicable statute of limitations in contract actions. 78 A.L.R.3d 639.

Products liability: what statute of limitation governs actions based on strict liability in tort. 91 A.L.R.3d 455.

When does statute of limitation begin to run upon an action by subrogated insurer against third-party tortfeasor. 91 A.L.R.3d 844.

Statute of limitations: running of statute of limitations on products liability claim against manufacturer as affected by plaintiff’s lack of knowledge of defect allegedly causing personal injury or disease. 91 A.L.R.3d 991.

When statute of limitations begins to run as to cause of action for development of latent industrial or occupational disease. 1 A.L.R.4th 117.

What statute of limitations governs damage action against attorney for malpractice. 2 A.L.R.4th 284.

What statute of limitations governs action arising out of transaction consummated by use of credit card. 2 A.L.R.4th 677.

When statute of limitations begins to run as to cause of action for nuisance based on air pollution. 19 A.L.R.4th 456.

When statute of limitations begins to run upon action against attorney for malpractice. 32 A.L.R.4th 260.

Statute of limitations applicable to third person’s action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats. 41 A.L.R.4th 1078.

Tolling of statute of limitations, on account of minority of injured child, as applicable to parent’s or guardian’s right of action arising out of same injury. 49 A.L.R.4th 216.

Time of discovery as affecting running of statute of limitations in wrongful death action. 49 A.L.R.4th 972.

Wrongful death: surviving parent’s minority as tolling limitation period on suit for child’s wrongful death. 54 A.L.R.4th 362.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice. 70 A.L.R.4th 535.

Validity and construction of statute terminating right of action for product-caused injury at fixed period after manufacture, sale, or delivery of product. 30 A.L.R.5th 1.

Attorney Malpractice – Tolling or Other Exceptions to Running of Statute of Limitations. 87 A.L.R.5th 473.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence – View that statute begins to run from time of occurrence of negligent act or omission. 11 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence – View that statute begins to run from time of occurrence of sustaining damage or injury and other theories. 12 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence – View that statute begins to run from time client discovers, or should have discovered, negligent act or omission – Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise. 13 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence – View that statute begins to run from time client discovers, or should have discovered, negligent act or omission – Application of rule to conduct of litigation and delay or inaction in conducting client’s affairs. 14 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence – View that statute begins to run from time client discovers, or should have discovered, negligent act or omission – Application of rule to property, estate, corporate, and document cases. 15 A.L.R.6th 427.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions § 107.

CJS.

54 C.J.S., Limitations of Actions § 51.

Law Reviews.

1979 Mississippi Supreme Court Review: Insurance. 50 Miss. L. J. 813, December 1979.

The DES Dilemma: An Analysis of Recent Decisions. 52 Miss. L. J. 199, March 1982.

1982 Mississippi Supreme Court Review: Miscellaneous. 53 Miss. L. J. 179, March 1983.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss. L.J. 49, March, 1985.

Abbott, Venue of transitory actions against resident individual citizens in Mississippi – Statutory revision could remove needless complexity. 58 Miss. L. J. 1, Spring, 1988.

Jackson, Legislative reform of statutes of limitations in Mississippi: proposed interpretations, possible problems. 9 Miss College LR 231, Spring 1989.

Litigation in Mississippi Today: A Symposium: Class Actions & Joinder in Mississippi, 71 Miss. L.J. 447, Winter, 2002.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Cross References —

Prohibition against revival of remedy barred by lapse of time or statute of limitation, see Miss. Const. Art. 4, § 97.

Statutes of limitation running against the state or any subdivision thereof, see Miss. Const. Art. 4, § 104.

When state may be sued, see §11-45-1.

Suits by and against county, generally, see §11-45-17.

Suits by and against municipality, generally, see §11-45-25.

Immunity of state and its political subdivisions from liability and suit for torts and torts of employees, see §§11-46-1 et seq.

General powers of municipal corporation, see §21-17-1.

Limitation of actions by State Tax Commission, see §27-3-41.

JUDICIAL DECISIONS

1. In general.

2. Subdivisions within purview of statute.

3. Suits by State and its subdivisions.

4. —Suits between subdivisions.

5. Suits against State and its subdivisions.

6. Running of limitation period.

1. In general.

The statutes of limitation concerning adverse possession do not run against the state. Mississippi State Highway Com. v. New Albany Gas Systems, 534 So. 2d 204, 1988 Miss. LEXIS 544 (Miss. 1988).

Mere mistake, accident or ignorance of one not under disability is not sufficient to suspend the statute of limitations. Mitchell v. Magee, 51 So. 2d 198 (Miss. 1951).

Where bonds were purchased by a testator in 1916 and were to become due in 1936 and they were later bequeathed by the testator who died in 1939, without specific designation to his wife, and the wife died in 1948, leaving all her property to legatee, and neither the wife nor the legatee were aware of the existence of the bonds, an action by the legatee in 1949 was barred by the six-year statute of limitations. Mitchell v. Magee, 51 So. 2d 198 (Miss. 1951).

This section [Code 1942, § 721] is inapplicable to appeal, since the right of appeal exists only by virtue of the statutes which confer it. Town of Tutwiler v. Gibson, 117 Miss. 879, 78 So. 926, 1918 Miss. LEXIS 232 (Miss. 1918).

Adverse occupancy does not bar municipalities from right to remove obstructions from street. City of Lexington v. Hoskins, 96 Miss. 163, 50 So. 561, 1909 Miss. LEXIS 35 (Miss. 1909).

Exceptions in favor of sovereignty in matters of property on the application of the statute of limitations must be construed strictly against the sovereignty. Warren County v. Lamkin, 93 Miss. 123, 46 So. 497, 1908 Miss. LEXIS 86 (Miss. 1908).

Section 104, Const. 1890, suspended the running of the statute of limitations against counties or pending contracts, where the bar was not complete, as well as on future contracts. Board of Sup'rs v. Helton, 79 Miss. 122, 29 So. 820 (Miss. 1901).

2. Subdivisions within purview of statute.

In a case in which a husband and wife argued that an open-account claim by a collection agency for collection in the justice court was barred by a three-year statute of limitations, that argument failed. A circuit court correctly found that their unpaid bills were owed to a governmental entity, a general hospital, the hospital’s accounts were assigned to the collection agency for collection purposes only, and the collection agency’s claim was not time-barred pursuant to Miss. Code Ann. §15-1-51. Laffitte v. Southern Fin. Sys., 30 So.3d 1236, 2009 Miss. App. LEXIS 599 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 153 (Miss. 2010).

Hospital was a subdivision of state for purposes of its suit against doctor for unpaid rent, and was thus not subject to one-year statute of limitations; county board of supervisors and city board of aldermen passed resolutions authorizing purchase and lease of office by hospital for express purpose of recruiting doctors to county and city, and office was purchased and leased pursuant to local and private legislation. Murphree v. Aberdeen-Monroe County Hosp., 671 So. 2d 1300, 1996 Miss. LEXIS 61 (Miss. 1996).

A hospital which was jointly owned by a city and a hospital district, and was governed by a board of trustees jointly appointed by the city council and the county board of supervisors, was a “subdivision [of the state] or municipal corporation thereof” within the meaning and contemplation of Art 4, § 104 of the Mississippi Constitution and §15-1-51. Thus, the 7-year period of limitations governing judgment liens set forth in §15-1-47 was inoperative against the hospital. Enroth v. Memorial Hosp. at Gulfport, 566 So. 2d 202, 1990 Miss. LEXIS 432 (Miss. 1990).

The Yazoo-Mississippi delta levee district is within the statute [Code 1942, § 721] and § 104, Const. 1890. Adams v. Illinois C. R. Co., 71 Miss. 752, 15 So. 640, 1894 Miss. LEXIS 54 (Miss. 1894).

3. Suits by State and its subdivisions.

Statute of limitations did not apply to a school district’s claim for a refund of oil and gas severance taxes because Miss. Const. art. IV, § 104 and Miss. Code Ann. §15-1-51 provided that statutes of limitation in civil causes did not run against the state or its subdivisions. Jones County Sch. Dist. v. Miss. Dep't of Revenue, 111 So.3d 588, 2013 Miss. LEXIS 71 (Miss. 2013).

Pursuant to §15-1-51 and Miss. Const. Art. 4, § 104, the statute of limitations in civil cases does not run against the state, its political subdivisions, or municipal corporations thereof. Parish v. Frazier, 195 F.3d 761, 1999 U.S. App. LEXIS 29733 (5th Cir. Miss. 1999).

Where an underlying debt was owed to a community hospital, existing under §§41-13-10 et seq., the hospital was a subdivision of the state and the statute of limitations was inoperative against it. Parish v. Frazier, 195 F.3d 761, 1999 U.S. App. LEXIS 29733 (5th Cir. Miss. 1999).

Unless the city is barred by laches or estoppel, it has a right to have a building removed from its present location in the street. Brown v. Gulfport, 213 Miss. 457, 57 So. 2d 290, 1952 Miss. LEXIS 386 (Miss. 1952).

Laches cannot be set up as defense to suit by State revenue agent to collect penalties under anti-trust laws. Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7, 1922 Miss. LEXIS 263 (Miss. 1922), writ of error dismissed, 263 U.S. 673, 44 S. Ct. 5, 68 L. Ed. 500, 1923 U.S. LEXIS 2833 (U.S. 1923), cert. denied, 263 U.S. 698, 44 S. Ct. 5, 68 L. Ed. 512, 1923 U.S. LEXIS 2968 (U.S. 1923).

This section [Code 1942, § 721] applies to actions by the state for recovery of penalty under antitrust laws, and no statute of limitations runs against the state in such actions. Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, 1910 Miss. LEXIS 92 (Miss. 1910).

Ten-year statute will bar action of ejectment by county against lessee in possession of county land not devoted to public use, under void lease, for term of lease. Warren County v. Lamkin, 93 Miss. 123, 46 So. 497, 1908 Miss. LEXIS 86 (Miss. 1908).

Notwithstanding that the statute of limitations could not be invoked against counties, a lessee of sixteenth section school lands, in an action by the county denying the validity of the lease and seeking to oust him, in defense of his term and as against the county’s claim to immediate possession, could show that the county had no title to convey him, having previously conveyed the term to another, and could set up the outstanding term of such other, which by reason of his adverse possession for ten years he had acquired at a time when counties were subject to statutes of limitations. Jones v. Madison County, 72 Miss. 777, 18 So. 87, 1895 Miss. LEXIS 33 (Miss. 1895).

4. —Suits between subdivisions.

Const. 1890 § 104 applies to suit by town against county to recover one-half of road tax collected on property within the town limits. Town of Crenshaw v. Panola County, 115 Miss. 891, 76 So. 741, 1917 Miss. LEXIS 276 (Miss. 1917).

5. Suits against State and its subdivisions.

Constitutional amendment prohibiting state from making payment on certain precivil war bonds did not toll statute of limitations for bringing claim on bonds, as enactment did not prohibit bondholder from bringing suit. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

Although state procured passage of constitutional amendment prohibiting payment of certain precivil war bonds, state was not equitably estopped from asserting that bondholders’ action to recover on bonds was barred by statute of limitations, as amendment did not prohibit bondholders from bringing claim on bonds and, therefore, state did not induce bondholders to abstain from filing suit to protect their rights and collect duly owed debts. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

Statute of limitations for filing suit to collect on precivil war bonds began to run in favor of state when bondholders first had right to make demand on officer authorized by state to allow or disallow claims, even though constitutional amendment precluded payment on bonds, and, therefore, there was no state officer who could authorize claims. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

Since bondholders’ action against state to recover on precivil war bonds was barred by statute of limitations, chancellor did not need to rule on constitutionality of constitutional amendment prohibiting payment on bonds, and chancellor’s ruling that amendment was unconstitutional was impermissible advisory opinion. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

On state’s motion for summary judgment in bondholders’ action to recover on precivil war bonds, based on running of statute of limitations, chancellor could look beyond parties’ pleadings to constitutional amendment prohibiting payment on bonds before making determination as to whether action was time barred. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

The six-year statute of limitations was applicable to the right of a teacher in an agricultural high school to demand payment of salary from the proceeds of bonds to be issued by the county and to compel issuance of such bonds by mandamus upon failure of the board of supervisors (which was not shown to have ever been advised of the existence of the obligation until suit was filed) otherwise to do so. Fuqua v. Board of Supervisors, 192 Miss. 6, 4 So. 2d 350, 1941 Miss. LEXIS 7 (Miss. 1941).

The failure of a statute, making it mandatory that a county having legal and undisputed outstanding warrants or other obligations and insufficient funds in the treasury to pay them, should at once prepare for and take up such warrants or other obligations from the proceeds of serial bonds issued for such purpose, to make reference therein to any statute of limitations did not have the effect of waiving, as to all obligations of a county incurred after its enactment, the provisions of this section [Code 1942, § 721] to the effect that statutes of limitations should begin to run in favor of the state, counties and municipal corporations at the time when the plaintiff first had the right to demand payment. Fuqua v. Board of Supervisors, 192 Miss. 6, 4 So. 2d 350, 1941 Miss. LEXIS 7 (Miss. 1941).

Orders on its treasurer in payment of work done on levees by the board of levee inspectors of Issaquena county, under the laws cited, are in their nature essentially county debts and not subject to the statute of limitations. Anderson v. Issaquena County, 75 Miss. 873, 23 So. 310, 1898 Miss. LEXIS 4 (Miss. 1898).

There is no statute to bar proceedings to enforce payment of claims against a county which have been allowed by the judgment of its authorities. Taylor v. Board of Sup'rs, 70 Miss. 87, 12 So. 210, 1892 Miss. LEXIS 107 (Miss. 1892); Klein v. Board of Supervisors, 54 Miss. 254, 1876 Miss. LEXIS 27 (Miss. 1876).

6. Running of limitation period.

Constitutional amendment prohibiting state from making payment on certain precivil war bonds did not toll statute of limitations for bringing claim on bonds, as enactment did not prohibit bondholder from bringing suit. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

Although state procured passage of constitutional amendment prohibiting payment of certain precivil war bonds, state was not equitably estopped from asserting that bondholders’ action to recover on bonds was barred by statute of limitations, as amendment did not prohibit bondholders from bringing claim on bonds and, therefore, state did not induce bondholders to abstain from filing suit to protect their rights and collect duly owed debts. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

Statute of limitations for filing suit to collect on precivil war bonds began to run in favor of state when bondholders first had right to make demand on officer authorized by state to allow or disallow claims, even though constitutional amendment precluded payment on bonds, and, therefore, there was no state officer who could authorize claims. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

On state’s motion for summary judgment in bondholders’ action to recover on precivil war bonds, based on running of statute of limitations, chancellor could look beyond parties’ pleadings to constitutional amendment prohibiting payment on bonds before making determination as to whether action was time barred. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

A cause of action for damages resulting from the closure of a portion of a frontage road by the state highway commission accrued at the time the road was closed and the six-year statute of limitations prescribed by section 15-1-49 began to run at that time. Mississippi State Highway Com. v. Vaughey, 358 So. 2d 1307, 1978 Miss. LEXIS 2570 (Miss. 1978).

The dismissal by a former sheriff and tax collector of his action against the county for compensation for alleged services did not destroy the right of his assignee, who was to obtain a portion of any recovery, and since the assignee’s right was dependent upon the right of his assignor, assignee’s action should have been brought within six years from the date of the expiration of the term of office of the former sheriff and tax collector, and, where it was not, the claim was barred. Smith v. Copiah County, 232 Miss. 838, 100 So. 2d 614, 1958 Miss. LEXIS 337 (Miss. 1958).

Action against county by heirs of tax collector for commissions on collections brought within six years after filing and rejection of claim with board of supervisors, but more than six years after right to file claim accrued, held barred by limitations, in absence of evidence that heirs had been legally restrained from pursuing remedy within statutory period. Grenada County v. Nason, 174 Miss. 725, 165 So. 811, 1936 Miss. LEXIS 226 (Miss. 1936).

Patentee not entitled to refund until land commissioner cancels patent and presents it to auditor, and limitations do not begin to run until that time. Wilson v. Naylor, 116 Miss. 573, 77 So. 606, 1917 Miss. LEXIS 346 (Miss. 1917).

Judgment declaring tax title void, in suit to confirm, was final adjudication justifying presentation to auditor of claim for purchase-money, and only after auditor’s refusal to issue a warrant in payment of the claim thus presented could suit be instituted against the state. Brown v. Ford, 112 Miss. 678, 73 So. 722, 1916 Miss. LEXIS 161 (Miss. 1916).

OPINIONS OF THE ATTORNEY GENERAL

As long as debt is owed to community hospital and is to be paid to community hospital, statute of limitations does not run and debt remains due and payable indefinitely but this favorable treatment cannot be used for benefit of private individual or firm and regular statute of limitations would apply once debt is assigned and statute begins to run from date debt was originally owed, not date of assignment of debt to private entity. Baker, June 24, 1993, A.G. Op. #93-0398.

It is not possible for an individual to acquire any rights through prescription or adverse possession nor can the county acquire a roadway easement against 16th section land by way of prescription. Wallace, Feb. 4, 2000, A.G. Op. #2000-0038.

Any attempt to require contract terms seeking to limit the liability of a private vendor or specifying a limitation period different than the general limitations period prescribed for contractual claims would be unenforceable. Thomas, Dec. 2, 2003, A.G. Op. 03-0629.

If a county board of supervisors determines that a demand made is barred by the applicable statute of limitations, it must assert that defense and is not authorized to pay the claim. Ross, Nov. 3, 2006, A.G. Op. 06-0562.

RESEARCH REFERENCES

ALR.

Limitation period as affected by requirement of notice or presentation of claim against governmental body. 3 A.L.R.2d 711.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 13, 14, 146, 392, 407.

4 Am. Jur. Trials, Statutes of Limitation § 14.

CJS.

54 C.J.S., Limitations of Actions §§ 24-26.

Cross References —

Limitations applicable to action by ward against guardian, see §15-1-27.

Executor’s or administrator’s duty to make title to land, see §91-7-221.

Deeds of conveyance by executors and administrators, see §91-7-223.

What actions survive to executors and administrators, see §91-7-233.

JUDICIAL DECISIONS

1. In general.

2. Persons affected.

1. In general.

Mere existence of an aunt as a person with statutory standing to bring a wrongful-death suit did not prevent the application of the statute because the aunt had been neither appointed guardian nor authorized by the chancery court to bring an action on behalf of the deceased’s children; the oldest child did not have a guardian appointed for who had the legal authority to bring a suit on her behalf, and thus, the savings clause remained in operation. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

A ward’s disability did not toll the statute of limitations in an action commenced by his guardian where the guardian was appointed some years before the cause of action arose. McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 1998 Miss. LEXIS 272 (Miss. 1998), overruled in part, Stockstill v. Gammill, 943 So. 2d 35, 2006 Miss. LEXIS 624 (Miss. 2006).

Section 15-1-53 does not apply to action alleging that deed of trust executed by mortgagor and its foreclosure are invalid because mortgagor was mentally incompetent, because by its terms, statute applies only where legal title to property or right in action is in conservator as opposed to ward, and right of action was at all times in mortgagor rather than conservator. Talbert v. Henderson, 688 F. Supp. 250, 1987 U.S. Dist. LEXIS 13869 (S.D. Miss. 1987).

Provisions of Miss. Code Annotated §15-1-53 are not applicable where conservator was empowered merely to manage incompetent’s property and affairs, and right of action to challenge execution of deed of trust and foreclosure pursuant to it remained at all times in incompetent. Talbert v. Henderson, 688 F. Supp. 250, 1987 U.S. Dist. LEXIS 13869 (S.D. Miss. 1987).

The statute [Code 1942, § 727] only applies where the legal title or right of action at law or in equity is in the guardian or trustee, and a mere equitable right in the beneficiary. Weir v. Monahan, 67 Miss. 434, 7 So. 291, 1889 Miss. LEXIS 66 (Miss. 1889).

2. Persons affected.

Savings clause in Miss. Code Ann. §15-1-59 did not act to toll the statute of limitations regarding a judgment a ward’s conservator obtained in divorce action against the ward’s former husband. Under Miss. Code Ann. §93-13-38 the right to pursue the action for money owed was in the conservator not the ward so the statute of limitations ran against conservator. Lewis v. Smith (In re Lewis), 110 So.3d 811, 2013 Miss. App. LEXIS 122 (Miss. Ct. App. 2013).

This statute [Code 1942, § 727] has no application to the rights of remaindermen under a devise or grant in trust to take effect only after the termination of a particular estate until the rights of the remaindermen fall into possession. Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278, 1919 Miss. LEXIS 37 (Miss. 1919).

Remaindermen are not barred from securing cancellation of deed to the land under wrongful sale during life of life tenant. Clark v. Foster, 110 Miss. 543, 70 So. 583, 1915 Miss. LEXIS 68 (Miss. 1915).

The statute [Code 1942, § 727] begins to run against one to whom land is conveyed in trust for others from the time adverse possession is taken under claim of ownership, and when he is barred the beneficiaries he represents are barred. Nelson v. Ratliff, 72 Miss. 656, 18 So. 487, 1895 Miss. LEXIS 69 (Miss. 1895).

This provision does not apply to ordinary cases where the right is that of minors, to be asserted by the guardian in their names. Weir v. Monahan, 67 Miss. 434, 7 So. 291, 1889 Miss. LEXIS 66 (Miss. 1889).

Where a husband lends his wife’s money as his own, the borrower not knowing it was hers until the debt was barred as to him, it is also barred as to her. Perry v. Ellis, 62 Miss. 711, 1885 Miss. LEXIS 130 (Miss. 1885).

RESEARCH REFERENCES

ALR.

Time of existence of mental incompetency which will prevent or suspend running of statute of limitations. 41 A.L.R.2d 726.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Fiduciary or confidential relationship as affecting estoppel to plead statute of limitations. 45 A.L.R.3d 630.

When statute of limitations commences to run on right of partnership accounting. 44 A.L.R.4th 678.

Medical malpractice statutes of limitation minority provisions. 71 A.L.R.5th 307.

Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person. 111 A.L.R.5th 159.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 629 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 28-30.

Cross References —

Actions for injuries producing death, see §11-7-13.

Time allowed to commence malpractice action on behalf of deceased person who died under disability, see §15-1-36.

Effect of death of party to suit, see §§91-7-237 et seq.

JUDICIAL DECISIONS

1. In general.

Miss. Code Annotated §15-1-59 does not place maximum durational limit on savings provision of §15-1-7, as had Mississippi Legislature intended for savings clause in §15-1-7 to have maximum duration it would have included such limit in § 15-1-7, as Legislature has in other statutes of limitations provisions, and further, §15-1-59 is not statute of limitations. Talbert v. Henderson, 688 F. Supp. 250, 1987 U.S. Dist. LEXIS 13869 (S.D. Miss. 1987).

When a decedent dies in the last year in which a suit may be brought for his injury this provision adds a year after his death within which suit may be brought by his personal representatives. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

Where debtor dies before debt is barred this section [Code 1942, § 728] controls. Duffy v. Kilroe, 116 Miss. 7, 76 So. 681, 1917 Miss. LEXIS 281 (Miss. 1917).

The statute [Code 1942, § 728] allows suit to be brought within one year of the death of the party liable, and not within one year from the date of letters testamentary or of administration, as did § 2612 Code of 1871. Klaus v. Moore, 77 Miss. 701, 27 So. 612, 1900 Miss. LEXIS 16 (Miss. 1900); Hughston v. Nail, 73 Miss. 284, 18 So. 920, 1895 Miss. LEXIS 110 (Miss. 1895).

Death of the debtor does not interrupt the running of the statute of limitations, but since the personal representative cannot be sued for six months after grant of letters, this time should not be counted against the creditor. Allen v. Hillman, 69 Miss. 225, 13 So. 871, 1891 Miss. LEXIS 174 (Miss. 1891).

The personal representative of the deceased person must sue or be sued within one year after his death. Weir v. Monahan, 67 Miss. 434, 7 So. 291, 1889 Miss. LEXIS 66 (Miss. 1889).

As applying former enactment of this section [Code 1942, § 728] as contained in Code of 1871 wherein the limitation period did not begin to run until issuance of letters testamentary or of administration, see Hambrick v. Jones, 64 Miss. 240, 8 So. 176, 1886 Miss. LEXIS 53 (Miss. 1886); Cook v. Reynolds, 58 Miss. 243, 1880 Miss. LEXIS 116 (Miss. 1880); Sledge v. Jacobs, 58 Miss. 194, 1880 Miss. LEXIS 109 (Miss. 1880); Clayton v. Merrett, 52 Miss. 353, 1876 Miss. LEXIS 221 (Miss. 1876).

The statute [Code 1942, § 728] only applies to cases in which the death of the person occurred within the last year of the time limited. Hambrick v. Jones, 64 Miss. 240, 8 So. 176, 1886 Miss. LEXIS 53 (Miss. 1886).

RESEARCH REFERENCES

ALR.

Time from which statute of limitations begins to run against cause of action for wrongful death. 97 A.L.R.2d 1151.

Statute of limitations: Effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued. 28 A.L.R.3d 1141.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action. 42 A.L.R.4th 272.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice. 70 A.L.R.4th 535.

Am. Jur.

4 Am. Jur. Trials, Statutes of Limitation §§ 25, 26.

CJS.

54 C.J.S., Limitations of Actions § 286.

JUDICIAL DECISIONS

1. In general.

Statement of claim in a probate proceeding was timely filed because the stay entered by a federal circuit court, prohibiting the creditor from foreclosing on the encumbered property pending the appeal, began the tolling of the filing period as to the promissory note. Avakian v. Wilmington Trust N.A. (In re Estate of Avakian), 231 So.3d 208, 2017 Miss. App. LEXIS 201 (Miss. Ct. App.), cert. denied, 229 So.3d 122, 2017 Miss. LEXIS 492 (Miss. 2017).

Summary judgment was granted to an electric company in a property damage case because the statute of limitations was not tolled under Miss. Code Ann. §15-1-57 since, from the date of an alleged incident until the expiration of the three-year statute of limitations, other parties were free to file their own claim or to join in the claim erroneously filed on behalf of a dissolved corporation. Miss. R. Civ. P. 15(c) did not allow for a reprieve from the limitations period because no amended complaint was filed; instead, an entirely new action with new parties was initiated. Funderburg v. Pontotoc Elec. Power Ass'n, 6 So.3d 439, 2009 Miss. App. LEXIS 159 (Miss. Ct. App. 2009).

Second complaint filed by a patient in a medical malpractice action was not untimely because pursuant to Miss. Code Ann. §§15-1-36(15) and15-1-57 the two-year statute of limitations was tolled for the 60 day period during which the patient was required to give notice of his claim to a doctor and medical center. Caldwell v. Warren, 2 So.3d 751, 2009 Miss. App. LEXIS 63 (Miss. Ct. App. 2009).

Patient’s medical malpractice claim was untimely filed, Miss. Code Ann. §§15-1-36(15) and15-1-57 because the sixty-day notice period during which the patient was barred from filing suit extended the two-year statute of limitations by only sixty days, and the patient’s complaint was filed after the sixty days had expired. Blessitt v. King's Daughters Hosp., 18 So.3d 878, 2009 Miss. App. LEXIS 46 (Miss. Ct. App. 2009).

Circuit court erred in dismissing the doctor as a defendant from the beneficiaries’ wrongful death claim where the time allowed by the medical malpractice statute of limitations had not yet expired when the doctor was served with the amended complaint. Long v. Mem'l Hosp. at Gulfport, 969 So. 2d 35, 2007 Miss. LEXIS 570 (Miss. 2007).

In a dispute involving a promissory note, an issue of which statute of limitations applied was not decided because the creditor never filed suit to foreclose on the note and never filed collection on the note; further, the savings clause, Miss. Code Ann. §15-1-57, did not apply because that section applied only when a person was restrained or prohibited from bringing suit. Chimento v. Fuller, 965 So. 2d 668, 2007 Miss. LEXIS 543 (Miss. 2007).

Because the two-year statute of limitations in Miss. Code Ann. §15-1-36(15) was extended 60 days pursuant to Miss. Code Ann. §15-1-57, the individual’s claim for malpractice against a medical center was timely when it was filed two years and 30 days after the date of injury. Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274, 2006 Miss. LEXIS 313 (Miss. 2006).

In an appeal of dismissal of a medical malpractice case due to limitations, the judgment was reversed because it was timely filed within the statute of limitations; the most reasonable interpretation of Miss. Code Ann. §15-1-36(15) and §15-1-57 tolled the two-year statute of limitations for 60 days. Pope v. Brock, 912 So. 2d 935, 2005 Miss. LEXIS 540 (Miss. 2005).

Constitutional amendment prohibiting state from making payment on certain precivil war bonds did not toll statute of limitations for bringing claim on bonds, as enactment did not prohibit bondholder from bringing suit. Grant v. State, 686 So. 2d 1078, 1996 Miss. LEXIS 690 (Miss. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1047, 1997 U.S. LEXIS 3267 (U.S. 1997).

In a wrongful death action against the administrator of an estate arising from an automobile accident, the 4-year limitations period set forth in §15-1-25 was not tolled pursuant to §15-1-57 during the time that another suit stemming from the same accident was on direct appeal to the Supreme Court from an order granting a directed verdict where the plaintiff in the wrongful death action was not a party to the second suit, and did not have any involvement with it except that the plaintiff’s decedent had been riding in the same automobile as the plaintiff’s decedent in the second lawsuit; the order granting the directed verdict in the second case in no way prevented the plaintiff from filing his wrongful death cause of action. Townsend v. Estate of Gilbert, 616 So. 2d 333, 1993 Miss. LEXIS 112 (Miss. 1993).

Action for wrongful death brought by statutory heirs of decedent, alleging that decedent came into contact with toxic substances during his employment with defendant, resulting in his death, was time-barred where approximately 81/2 years elapsed between decedent’s death and filing of present action; negligence actions being governed by §15-1-49 (6 years), actions based on intentional infliction of emotional distress being controlled by §15-1-35 (one year), and breach of warranty actions governed by §75-2-725 (6 years), whether defendants’ acts were characterized as intentional or negligent, longest possible limitations period under Mississippi law would be 6 years. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

Action by heirs of tax collector for commissions, brought within six years after filing and rejection of claim by supervisors, but more than six years after right to file claim accrued, held barred by limitations, in absence of showing that heirs had been legally restrained. Grenada County v. Nason, 174 Miss. 725, 165 So. 811, 1936 Miss. LEXIS 226 (Miss. 1936).

RESEARCH REFERENCES

ALR.

Delay caused by other litigation as estopping reliance on statute of limitations. 45 A.L.R.3d 703.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 195 et seq.

4 Am. Jur. Trials, Statutes of Limitation §§ 24 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 124 et seq.

Cross References —

Ratification of contracts made during infancy, see §15-3-11.

Collateral attack by minor upon decree establishing title to property, see §91-1-31.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Actions under Tort Claims Act.

4. Actions for child support.

5. Actions for wrongful death.

1. In general.

Because a conservator failed to create a genuine issue of material fact that the conservator’s parent was mentally incompetent at the time when the cause of action for alleged the misappropriation of loan proceeds accrued, the savings clause did not apply. Specifically, a doctor only offered conclusory statements regarding the parent’s health without citation to specific facts showing that the parent was of unsound mind at the time the cause of action accrued. Brown-Howle v. Cmty. Bank, — So.3d —, 2018 Miss. App. LEXIS 527 (Miss. Ct. App. Oct. 23, 2018).

Trial court properly granted summary judgment in favor of a school and its team doctor because all alleged intentional torts occurred more than one year prior to alumni filing suit; the alumni did not timely file their intentional tort claims because the suit was filed seven years after the last alumnus graduated and more than three years after the last alumnus reached the age of majority. Raddin v. Manchester Educ. Found., 175 So.3d 1243, 2015 Miss. LEXIS 507 (Miss. 2015).

Trial court improperly granted summary judgment, pursuant to Miss. R. Civ. P. 56, to a paint company with respect to a child’s claims of injury resulting from ingestion of lead found in paint that the company manufactured because the child’s claims were not barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49, as the child was a minor when the claims accrued, and therefore the claims were subject to the savings statute, Miss. Code Ann. §15-1-59; because the child’s claims were improperly dismissed, he was denied his right to a jury trial as set forth in Miss. Const. art. III, § 31, but the claims of the child’s mother were properly dismissed as time-barred. Pollard v. Sherwin-Williams Co., 955 So. 2d 764, 2007 Miss. LEXIS 31 (Miss. 2007).

Where the mother entered into the relationship with the father when the mother was 14 years old and moved in with the father before the mother was 16 years old, the mother was not entitled to protection from the courts, as the mother’s action for an equitable distribution of the property was not brought during the mother’s minority or within three years thereafter pursuant to the savings clause for minors under Miss. Code Ann. §15-1-59. Nichols v. Funderburk, 881 So. 2d 266, 2003 Miss. App. LEXIS 1036 (Miss. Ct. App. 2003), aff'd, 883 So. 2d 554, 2004 Miss. LEXIS 1198 (Miss. 2004).

Where plaintiff presented sufficient evidence on the issue of her unsoundness of mind to shift the burden of proof to defendant and a review of the testimony indicated that plaintiff was not in effective control of the day-to-day affairs of her family, the court could not rely on this evidence to support a finding that the tolling provisions of Miss. Code Ann. §15-1-59 were inapplicable. Hampton v. Gannett Co., 296 F. Supp. 2d 716, 2003 U.S. Dist. LEXIS 22788 (S.D. Miss. 2003).

Trial court erred in ruling that the minor’s savings statute, Miss. Code Ann. §15-1-59, did not toll the statute of limitations on a wrongful death action; however, once a wrongful death suit was filed in her behalf, the minor no longer enjoyed the protection of §15-1-59; since there could be but one cause of action under Miss. Code Ann. §11-7-13, the minor was governed by the same statute of limitations as the decedent’s administratrix. Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

Where a father entered into a stipulation to dismiss a driver from a negligence case with prejudice, his minor son was unable to assert the same cause of action against the driver when he reached the age of majority, under the doctrine of res judicata. Taylor v. Taylor, 835 So. 2d 60, 2003 Miss. LEXIS 26 (Miss. 2003).

Provisions of the minor’s savings statute, Miss. Code Ann. §15-1-59, and the wrongful death statute, Miss. Code Ann. §11-7-13, conflict where there exists a person qualified under §11-7-13 to bring suit, as § 11-7-13 requires that one suit be brought for damages from wrongful death. Thus, the statute of limitations runs against both the personal representative of the deceased and the deceased’s children. Curry v. Turner, 832 So. 2d 508, 2002 Miss. LEXIS 391 (Miss. 2002), limited, overruled in part, Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

In a child support matter, more than seven years had passed since the eldest child had become 21; therefore, his claim was barred by the statute of limitations, but the claim of his sister was still viable, and the father did not waive the defense by failing to raise it as an affirmative defense in the pleadings when no pleading was required. Brown v. Brown, 822 So. 2d 1119, 2002 Miss. App. LEXIS 403 (Miss. Ct. App. 2002).

The minor savings clause applies to a wrongful death action. Thiroux v. Austin, 749 So. 2d 1040, 1999 Miss. LEXIS 351 (Miss. 1999).

The statute of limitations was not tolled for unsoundness of mind, notwithstanding evidence that the plaintiff received social security disability for schizophrenia, where the trial judge found that the plaintiff was capable of managing his own affairs, managed his own money, hired an attorney to file three lawsuits, and testified very coherently and competently at his discovery depositions. Brumfield v. Lowe, 744 So. 2d 383, 1999 Miss. App. LEXIS 348 (Miss. Ct. App. 1999).

The Mississippi Tort Claims Act’s one year statute of limitations expressed in §11-46-11 is not tolled by the “minor savings clause” of this section until the minor achieves majority. Marcum v. Hancock County Sch. Dist., 741 So. 2d 234, 1999 Miss. LEXIS 189 (Miss. 1999).

The statute applies to a proceeding to recover child support, whether the proceeding is commenced by the child, after emancipation, or by the custodial parent. Glass v. Glass, 726 So. 2d 1281, 1998 Miss. App. LEXIS 1109 (Miss. Ct. App. 1998).

Unadjudicated unsoundness of mind can be sufficient to trigger the savings statute; a legal adjudication of incompetency is not necessary to toll the statute of limitations if sufficient evidence exists to show that the victim was mentally incompetent at the time the cause of action accrued. Rockwell v. Preferred Risk Mut. Ins. Co., 710 So. 2d 388, 1998 Miss. LEXIS 127 (Miss. 1998).

Statute of limitations on mother’s action to enforce foreign judgment against father for child support arrearage was tolled by minority of children, even though mother was not under disability of minority. Vice v. Department of Human Servs., 702 So. 2d 397, 1997 Miss. LEXIS 606 (Miss. 1997).

The limitation period provided by §99-39-5(2) is not subject to the savings clause in §15-1-59; the savings clause in §15-1-59 applies only to actions mentioned in Chapter 1, Title 15 of the Mississippi Code of 1972. Cole v. State, 608 So. 2d 1313, 1992 Miss. LEXIS 557 (Miss. 1992).

An insurer was notified of a claim, which arose from an automobile accident between an insured and an uninsured motorist, well within the applicable 6-year statute of limitations set forth in §15-1-49, even though the insurer was first notified of the accident approximately 6 1/2 years after the date of the accident, where the insured was 17 years old when she was injured in the accident, and therefore, pursuant to §15-1-59, the statute of limitations did not begin to run against her until she reached her 21st birthday. Lawler v. Government Employees Ins. Co., 569 So. 2d 1151, 1990 Miss. LEXIS 534 (Miss. 1990).

Statute of limitations, applicable to contempt action brought by divorced parent to enforce past due child support, is savings clause in favor of persons under disabilities (§15-1-59), not 7 year statute of limitations (§15-1-43), so long as child is minor. Wilson v. Wilson, 464 So. 2d 496, 1985 Miss. LEXIS 1914 (Miss. 1985).

In an action for wrongful death filed by the surviving spouse and children after the statutory limitation period had passed, §15-1-59, the savings statute, did not toll the limitations period in favor of the children, since the surviving spouse was a person in esse who had the right to file suit for wrongful death during the six-year limitation period after decedent’s death, and thus the action was barred. Arender v. Smith County Hospital, 431 So. 2d 491, 1983 Miss. LEXIS 2633 (Miss. 1983).

The general savings statute in favor of those under disabilities insofar as limitations of actions are concerned does not apply to the statute giving a widow the right to renounce her husband’s will under certain circumstances. Wolcott v. Wolcott, 184 So. 2d 381, 1966 Miss. LEXIS 1459 (Miss. 1966).

Suit to set aside conveyance made during minority is barred where statutory period has run since grantor’s majority. Floyd v. Floyd, 239 Miss. 69, 121 So. 2d 133, 1960 Miss. LEXIS 268 (Miss. 1960).

If unsoundness of mind of one suing for damages for assault and battery began before expiration of day of injury, limitations did not begin until removal of disability. Pannell v. Glidewell, 146 Miss. 565, 111 So. 571, 1927 Miss. LEXIS 197 (Miss. 1927).

Bill barred on its face by limitation is demurrable, although complainants sue by next friend where it is not alleged that complainants were minors. Thames v. Mangum, 87 Miss. 575, 40 So. 327, 1905 Miss. LEXIS 206 (Miss. 1905).

The statute [Code 1942, § 738] applies only to the actions mentioned in this chapter. Foster v. Yazoo & M. V. R. Co., 72 Miss. 886, 18 So. 380, 1895 Miss. LEXIS 40 (Miss. 1895).

Where a party is under two or more disabilities when a cause of action accrues, the statute will not begin to run until all be removed. North v. James, 61 Miss. 761, 1884 Miss. LEXIS 160 (Miss. 1884).

2. Applicability.

Although plaintiff alleged in this medical malpractice action that she had been of unsound mind since she was a child and that the circuit court erred in finding the evidence insufficient to establish that her mental condition tolled the statute of limitations, there was no evidence that plaintiff suffered from any kind of mental illness or that she had been found to be permanently disabled because of a mental illness. Vick v. Brandon HMA, LLC, 167 So.3d 259, 2015 Miss. App. LEXIS 318 (Miss. Ct. App. 2015).

Savings clause did not act to toll the statute of limitations regarding a judgment a ward’s conservator obtained in divorce action against the ward’s former husband. Under Miss. Code Ann. §93-13-38 the right to pursue the action for money owed was in the conservator not the ward so under Miss. Code Ann. §15-1-53, the statute of limitations ran against conservator. Lewis v. Smith (In re Lewis), 110 So.3d 811, 2013 Miss. App. LEXIS 122 (Miss. Ct. App. 2013).

3. Actions under Tort Claims Act.

Plaintiff’s tort action based on events that occurred when he was 19 years old was timely as it was filed less than three years after his 21st birthday; removal of the disability of minority did not arise automatically upon the occurrence of specified events except for reaching the age of 21, and thus, plaintiff’s emancipation did not trigger the automatic removal of disability of minority. Baker v. RR Brink Locking Sys., 721 F.3d 716, 2013 U.S. App. LEXIS 13884 (5th Cir. Miss. 2013).

The one (1) year statute of limitations of the Mississippi Tort Claims Act set forth in §11-46-11 is not tolled by the minors’ savings clause in this section. Hays v. Lafayette County Sch. Dist., 759 So. 2d 1144, 1999 Miss. LEXIS 376 (Miss. 1999).

This section’s minor savings clause only applies to periods of limitation within this chapter and not to the Mississippi Torts Claims Act; thus, plaintiff failed to file her claim under the MTCA within the prescribed limitations period. Hays v. Lafayette County Sch. Dist., 759 So. 2d 1144, 1999 Miss. LEXIS 376 (Miss. 1999).

4. Actions for child support.

Registration of a child support order was timely because the three-year statute of limitations applicable to the father under Mississippi law was tolled while the child remained a minor. The tolling applied to the mother and the State, though neither was under such a disability, and the child was twelve years old in January, 1999. Shelnut v. Dep't of Human Servs., 9 So.3d 359, 2009 Miss. LEXIS 125 (Miss. 2009).

Chancery court did not err in granting a wife an interest in a husband’s retirement account to secure child support; thus, the statute of limitations on the wife’s action based on a domestic judgment under Miss. Code Ann. §15-1-43 was tolled by the child support exception of Miss. Code Ann. §15-1-59 because the retirement funds, though put in the wife’s name, were child support payments. Carlson v. Matthews, 966 So. 2d 1258, 2007 Miss. App. LEXIS 725 (Miss. Ct. App. 2007).

Limitations period under Miss. Code Ann. §15-1-43 did not bar a contempt action to recover child support payments 12 years after a divorce decree was entered because the youngest child had until 2008 to bring the action under the savings clause of Miss. Code Ann. §15-1-59. Strack v. Sticklin, 959 So. 2d 1, 2006 Miss. App. LEXIS 634 (Miss. Ct. App. 2006), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 371 (Miss. 2007).

Son was still a minor when the mother initiated the contempt action; thus, pursuant to Miss. Code Ann. §15-1-59, the statute of limitations had not run on the father’s child support obligations. It therefore followed that even if the father had obtained a ruling on his affirmative defense of laches, it would have availed him naught. Durr v. Durr, 912 So. 2d 1033, 2005 Miss. App. LEXIS 244 (Miss. Ct. App. 2005).

In a contempt proceeding for the husband’s failure to pay child support, the affirmative defense of statute of limitations was not waived because, although the husband filed an answer, no such pleading was required under Miss. R. Civ. P. 12(b) and 81(d)(2), (4); thus, the husband had the right to raise the defense at any stage and the statute of limitations would bar any claims filed seven years after the youngest child reached the age of 21 pursuant to Miss. Code Ann. §15-1-59. Miss. Dep't of Human Servs. v. Guidry, 830 So. 2d 628, 2002 Miss. LEXIS 320 (Miss. 2002).

5. Actions for wrongful death.

Under the holding in Pioneer Community Hospital of Newton v. Roberts, the appellate court found the minor savings statute, Miss. Code Ann. §15-1-59, tolled the statute of limitations and prevented the dismissal of a minor’s wrongful-death complaint against a psychiatrist who treated the minor’s father. Irby v. Madakasira, 252 So.3d 614, 2018 Miss. App. LEXIS 277 (Miss. Ct. App.), cert. denied, 250 So.3d 1271, 2018 Miss. LEXIS 375 (Miss. 2018).

Only when someone who is qualified to bring a wrongful-death suit actually files a wrongful-death suit on the minor beneficiaries’ behalf will the minors savings clause not apply, because, once the suit is filed, the running of the statute of limitations is immaterial. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

To the extent the supreme court held in Curry v. Turner, 832 So. 2d 508 (Miss. 2002), that the mere existence of a person of majority age with statutory standing to file a wrongful-death suit prevents the application of the minors savings clause, the supreme court explicitly overrules this holding; instead, Curry should be limited to its facts. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

To the extent Curry v. Turner, 832 So. 2d 508 (Miss. 2002), held that the mere existence of someone qualified to bring a wrongful-death suit created an irreconcilable conflict between Miss. Code Ann. §11-7-13 and Miss. Code Ann. §15-1-59 and precluded the application of the latter statute, the supreme court explicitly overrules this part of its holding. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Circuit court properly denied a hospital and a doctor summary judgment because the minors savings statute applied, and thus, the deceased’s oldest child had two years from when she reached the age of majority to file a wrongful-death suit based on medical negligence; the deceased’s two minor children could rely on the application of the minors savings clause to toll the running of the two-year statute of limitations, and the oldest child timely filed her complaint within two-year period. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Personal representatives’ amended complaint against a convenience store in a wrongful death action was dismissed because the minor’s savings statute, Miss. Code Ann. §15-1-59, did not toll the general statute of limitations, Miss. Code Ann. §15-1-49, which otherwise barred the wrongful death claim against the convenience store. Anderson v. R & D Foods, Inc., 913 So. 2d 394, 2005 Miss. App. LEXIS 294 (Miss. Ct. App. 2005).

RESEARCH REFERENCES

ALR.

Proof of unadjudged incompetency which prevents running of statute of limitations. 9 A.L.R.2d 964.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Effect of infant’s marriage after cause of action accrues on running of limitations as against him or her. 91 A.L.R.2d 1272.

Tolling of statute of limitations, on account of minority of injured child, as applicable to parent’s or guardian’s right of action arising out of same injury. 49 A.L.R.4th 216.

Emotional or psychological “blocking” or repression as tolling running of statute of limitations. 11 A.L.R.5th 588.

Medical malpractice statutes of limitation minority provisions. 71 A.L.R.5th 307.

When Is Person, Other than One Claiming Posttraumatic Stress Syndrome or Memory Repression, Within Coverage of Statutory Provision Tolling Running of Limitations Period on Basis of Mental Disability. 23 A.L.R. 6th 697.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 202 et seq.

4 Am. Jur. Trials, Statutes of Limitation § 24.

CJS.

54 C.J.S., Limitations of Actions §§ 131 et seq.

Law Reviews.

1983 Mississippi Supreme Court Review: Inapplicability of savings statute to wrongful death actions. 54 Miss. L. J. 169, March, 1984.

Editor’s Notes —

Former §15-1-61 related to actions brought for assault, assault and battery, or maiming for persons in custody within one year after release.

Cross References —

Limitations of prosecutions generally, see §99-1-5.

Trial in absentia in criminal cases, see §99-17-9.

JUDICIAL DECISIONS

1. In general.

2. Absence from state.

3. —Subsequent visits, effect of.

4. —Property within the state during absence.

5. Nonresidence.

6. Pleading.

1. In general.

Circuit court erred in dismissing a driver’s personal injury complaint with prejudice because the driver exhibited good cause for not timely serving process on the insured where the record clearly showed that over a period of almost two years, the driver unsuccessfully attempted to locate the insured, the Secretary of State attempted to forward the summons to the insured, but it was returned unclaimed, the insured could not be located by the driver, the courts, or his own insurance carrier, and the circuit court failed to consider that the statute of limitations could be tolled. Darville v. Mejia, 184 So.3d 312, 2016 Miss. App. LEXIS 3 (Miss. Ct. App. 2016).

A plaintiff seeking to benefit from §15-1-63 must have been unable to effect service on the defendant during the period for which it is claimed the statute is tolled-i.e., the defendant must have left the state and not be amenable to service under a long-arm statute or other means because, for example, his or her whereabouts are unknown; the statute of limitations is not tolled where the plaintiff knew or should have known of the defendant’s whereabouts. Sullivan v. Trustmark Nat'l Bank, 653 So. 2d 930, 1995 Miss. LEXIS 196 (Miss. 1995).

Under §15-1-63, the burden of proving that the defendant was absent and not amenable to service is on the plaintiff. Sullivan v. Trustmark Nat'l Bank, 653 So. 2d 930, 1995 Miss. LEXIS 196 (Miss. 1995).

If a plaintiff can obtain process on a non-resident defendant, in a suit filed under the long arm statute, he will not be excused for his failure to sue and will not be entitled to claim that the statute of limitations is tolled during the absence of the defendant from the state; if a plaintiff makes such a claim, the burden is on him to show the duration of the defendant’s absence from the state and to show that defendant cannot be served with process under any of the ways provided by the long arm statute. Gulf Nat'l Bank v. King, 362 So. 2d 1253, 1978 Miss. LEXIS 2162 (Miss. 1978).

A suit on a credit memorandum issued to plaintiff in 1958 was barred by the 6 year statute of limitations where the period for demand was not indefinite, where plaintiff made no attempt to use the credit between 1958 and 1972, and where it did not communicate with defendant at all concerning the credit between 1963 and 1972; nor was the statute of limitations tolled until defendant’s successor corporation first qualified to do business in Mississippi where such contention was raised for the first time on appeal and there was no showing that consideration of such issue was necessary to prevent a miscarriage of justice. Valley Cement Industries, Inc. v. Midco Equipment Co., 570 F.2d 1241, 1978 U.S. App. LEXIS 11819 (5th Cir. Miss. 1978).

This section [Code 1942, § 740] applies only to actions in personam and does not apply to actions in rem. King v. Childress, 232 Miss. 766, 100 So. 2d 578, 1958 Miss. LEXIS 327 (Miss. 1958).

This section [Code 1942, § 740] is not applicable to suit at law or equity for recovery of land. Beresford v. Marble, 95 Miss. 461, 50 So. 68, 1909 Miss. LEXIS 299 (Miss. 1909).

The statute embraces all persons; there is no saving. Hodges v. Darden Bros., 51 Miss. 199, 1875 Miss. LEXIS 34 (Miss. 1875).

The reason of the exception is that during such absence the plaintiff cannot sue. If the right to sue be unimpaired, notwithstanding the absence, the case is not within this section [Code 1942, § 740]. French v. Davis, 38 Miss. 218, 1859 Miss. LEXIS 109 (Miss. 1859), overruled in part, Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 2011 Miss. LEXIS 64 (Miss. 2011).

2. Absence from state.

Tolling provision has never been applied to a defendant who was amenable to service of process simply because the defendant’s alleged wrongful conduct was not known to the plaintiff; rather, the statute of limitations is tolled because, and only if, the defendant has removed himself or herself from the State and the reach of service of process. Hammons v. Navarre, — So.3d —, 2017 Miss. App. LEXIS 215 (Miss. Ct. App. Apr. 18, 2017), aff'd, 252 So.3d 9, 2018 Miss. LEXIS 252 (Miss. 2018).

Statute of limitations was not tolled because a pilot submitted no evidence sufficient to meet his burden of proof that manufacturers were not amenable to service during the limitations period; the pilot served or attempted service on all of the manufacturers soon after he filed his amended complaint. Hammons v. Navarre, — So.3d —, 2017 Miss. App. LEXIS 215 (Miss. Ct. App. Apr. 18, 2017), aff'd, 252 So.3d 9, 2018 Miss. LEXIS 252 (Miss. 2018).

Where an action on a promissory note was instituted in Mississippi and the note had been executed in Alabama, this statute [Code 1942, § 740] tolling the statute of limitations where there is an absence from the state was not applicable, for the absence relied on was from Alabama and not from Mississippi. Guthrie v. Merchants Nat'l Bank, 254 Miss. 532, 180 So. 2d 309, 1965 Miss. LEXIS 964 (Miss. 1965).

This statute [Code 1942, § 740] applies only where the cause of action accrues within the state of Mississippi and the person against whom it accrued thereafter absents himself, and does not apply where the cause of action accrued in another state and defendant thereafter moved to Mississippi. Le Mieux Bros. Corp. v. Armstrong, 91 F.2d 445, 1937 U.S. App. LEXIS 4253 (5th Cir. Miss. 1937).

Seven-year limitation for issuance of execution on judgment, not extended by absence of execution defendant from state, issuance of execution not being commencement of action. McGraw v. Mitchell, 142 Miss. 357, 107 So. 423, 1926 Miss. LEXIS 82 (Miss. 1926).

Phrase “be absent from and reside out of the state” applies to unmarried woman who went to California to work as domestic servant intending to return to the state after earning enough to pay off indebtedness on property. Hendricks v. Kellogg, 116 Miss. 22, 76 So. 746, 1917 Miss. LEXIS 288 (Miss. 1917).

A cause of action accrues in this state whenever one has a right of action in this state, and if the person against whom it has accrued be absent from and resides out of this state, the time of his absence is not counted in his favor in the suit here. Hunt v. Belknap, 78 Miss. 76, 28 So. 751, 1900 Miss. LEXIS 76 (Miss. 1900).

The statute [Code 1942, § 740] applies where defendant has not been in the state at all, as well as where the defendant resided here at the time the cause of action accrued and subsequently removed. Robinson v. Moore, 76 Miss. 89, 23 So. 631, 1898 Miss. LEXIS 66 (Miss. 1898); Lindenmayer v. Gunst, 70 Miss. 693, 13 So. 252, 1893 Miss. LEXIS 61 (Miss. 1893).

It is only where a right of action accrues in this state and the persons go from and reside out of it that the statute prevents the period of their absence from being counted. Lindenmayer v. Gunst, 70 Miss. 693, 13 So. 252, 1893 Miss. LEXIS 61 (Miss. 1893).

If he have no such residence here, and be absent, the section [Code 1942, § 740] applies, even though it be shown that the debtor had not acquired a domicil or fixed residence abroad. State v. Furlong, 60 Miss. 839, 1883 Miss. LEXIS 22 (Miss. 1883).

If the debtor have a home in this state, so that service of process can be had on him under our laws, by leaving with a member of his family or posting a copy, his absence on a trip abroad will not be within this section [Code 1942, § 740]. Dent v. Jones & Pintard, 50 Miss. 265, 1874 Miss. LEXIS 54 (Miss. 1874).

3. —Subsequent visits, effect of.

Where the defendant contracts a debt and removes to another state, and afterwards visits this state as a traveling salesman, going from place to place and staying only a day or two at each place, though while thus occupied he remained in the state continuously for several months, he is absent within the meaning of the statute. Weille v. Levy, 74 Miss. 34, 20 So. 3, 1896 Miss. LEXIS 101 (Miss. 1896).

A person who, after a cause of action accrues against him, removes and resides out of the state, is entitled to the benefit of the time spent here on subsequent visits which are open, notorious, and long enough for suit; but such person cannot claim that because of such visits his subsequent absences are to be disregarded. Pindell v. Harris, 57 Miss. 739, 1880 Miss. LEXIS 48 (Miss. 1880); Withers v. Bullock, 53 Miss. 539, 1876 Miss. LEXIS 111 (Miss. 1876).

4. —Property within the state during absence.

The fact that the debtor has property liable to attachment is immaterial; “the statute follows the person and not the property of the debtor.” Fisher v. Fisher, 43 Miss. 212, 1870 Miss. LEXIS 27 (Miss. 1870).

5. Nonresidence.

Where a cause of action for labor and materials furnished to improve the defendant’s property located in Mississippi accrued in this state and the defendant was a nonresident of Mississippi at the time of such accrual and remained a nonresident thereafter, the three-year statute of limitations did not run to bar the claim. Gross v. Thomas, 187 So. 2d 307, 1966 Miss. LEXIS 1344 (Miss. 1966).

This section [Code 1942, § 740] is inapplicable where the cause of action accrued outside the state. C & L Rural Electric Co-op. Corp. v. Kincade, 175 F. Supp. 223, 1959 U.S. Dist. LEXIS 2934 (D. Miss. 1959), aff'd, 276 F.2d 929, 1960 U.S. App. LEXIS 4898 (5th Cir. Miss. 1960).

Where the construction required by a contract was to be performed in Arkansas and any breach thereof occurred at the construction site, this section [Code 1942, § 740] did not toll the limitation period. C & L Rural Electric Co-op. Corp. v. Kincade, 175 F. Supp. 223, 1959 U.S. Dist. LEXIS 2934 (D. Miss. 1959), aff'd, 276 F.2d 929, 1960 U.S. App. LEXIS 4898 (5th Cir. Miss. 1960).

Where the landowner had actual knowledge for ten years prior to the commencement of a suit, or by the use of reasonable prudence would have known, that the instrument she executed was a mineral deed rather than a royalty deed, and she could have brought action at any time within the ten-year period and obtained process upon the nonresident defendant by publication, the landowner’s action was barred by the ten-year statute of limitations provided in § 709, Code of 1942. King v. Childress, 232 Miss. 766, 100 So. 2d 578, 1958 Miss. LEXIS 327 (Miss. 1958).

Where a judgment was rendered in Alabama against a nonresident of Mississippi on a cause of action which did not accrue in Mississippi, and the defendant thereafter became a resident of Mississippi, the statute of limitations ran from the date of the judgment rather than from the time the defendant became a resident of Mississippi. United States Fidelity & Guaranty Co. v. Ransom, 192 Miss. 286, 5 So. 2d 238, 1941 Miss. LEXIS 38 (Miss. 1941).

Limitation does not run in favor of nonresident maker of note and deed of trust on property in state. Mason v. Stroud, 155 Miss. 829, 125 So. 408, 1930 Miss. LEXIS 122 (Miss. 1930).

This section [Code 1942, § 740] applies only where person against whom cause of action accrues in the state removes and resides out of state; not applicable where nonresident alien corporation claimed adverse possession of land through tenants. Scottish American Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666, 1910 Miss. LEXIS 14 (Miss. 1910).

This statute [Code 1942, § 740] does not save the bar of a note made in another state where the limit is ten years, although both maker and payee resided there at the time and the maker did not become a resident of this state until nearly six years after maturity. Wright v. Mordaunt, 77 Miss. 537, 27 So. 640, 1899 Miss. LEXIS 97 (Miss. 1899).

The statute of limitations does not run during a debtor’s absence from the state as a nonresident, and this rule is applicable, though the plaintiff be nonresident. Bower v. G. Henshaw & Sons, 56 Miss. 619, 1879 Miss. LEXIS 175 (Miss. 1879).

6. Pleading.

One relying on this statute must invoke it and plead the facts which make it applicable. Tinsley v. Mills, 36 F. Supp. 621, 1940 U.S. Dist. LEXIS 2161 (D. La. 1940).

RESEARCH REFERENCES

ALR.

Provision of statute of limitations excluding period of defendant’s absence from the state as applicable to a local cause of action against individual who was a nonresident when the same arose. 17 A.L.R.2d 502.

Tolling of statute of limitations during absence from state as affected by fact that party claiming benefit of limitations remained subject to service during absence or nonresidence. 55 A.L.R.3d 1158.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 169 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 242, 243 et seq.

Editor’s Notes —

Laws, 1989, ch. 311, § 7, effective from and after July 1, 1989, provides as follows:

“SECTION 7. The provisions of this act shall apply only to causes of action accruing on or after July 1, 1989.”

Cross References —

Effect of completion of limitations, see §15-1-3.

Actions on foreign judgments, see §15-1-45.

JUDICIAL DECISIONS

1. In general.

2. Particular applications.

1. In general.

The doctrine of forum non conveniens will never be applied to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he or she will waive the statute of limitations defense. Shewbrooks v. A.C. & S., Inc., 529 So. 2d 557, 1988 Miss. LEXIS 242 (Miss. 1988).

Section 15-1-65, which makes provision for nonresidents bringing suit on causes of action accruing in another state, applies only to a nonresident who moves to Mississippi after the statute has run on the cause in the other state. Shewbrooks v. A.C. & S., Inc., 529 So. 2d 557, 1988 Miss. LEXIS 242 (Miss. 1988).

In action brought in District Court in Mississippi, fact that statute of limitations of another state, which state has most significant relationship to occurrence and parties, is deemed procedural does not preclude application of Mississippi’s “following statute”, so as to make other state’s one year limitations period applicable to products liability in negligence claims against seller of cash register. Jackson v. National Semi-Conductor Data Checker/DTS, Inc., 660 F. Supp. 65, 1986 U.S. Dist. LEXIS 17685 (S.D. Miss. 1986).

This statute [Code 1942, § 741] applies to a cause of action against a corporation as well as to individuals. Stavang v. American Potash & Chemical Corp., 227 F. Supp. 786, 1964 U.S. Dist. LEXIS 8326 (S.D. Miss. 1964), aff'd, 344 F.2d 117, 1965 U.S. App. LEXIS 5882 (5th Cir. Miss. 1965).

This provision applies only in favor of a nonresident who has moved into Mississippi after a cause of action against him is barred in his former state of residence; and when his removal was before it had become barred, the Mississippi statute of limitations applies. Sheets v. Burman, 322 F.2d 277, 1963 U.S. App. LEXIS 4269 (5th Cir. Miss. 1963).

Statute of Mississippi applies to right of action arising in another state and sued on in Mississippi. Fisher v. Burk, 123 Miss. 781, 86 So. 300, 1920 Miss. LEXIS 80 (Miss. 1920).

The sole purpose and effect of the statute are to give one suing in this state the benefit of a bar complete elsewhere. Wright v. Mordaunt, 77 Miss. 537, 27 So. 640, 1899 Miss. LEXIS 97 (Miss. 1899).

The statute [Code 1942, § 741] does not apply if the defendant has never resided in this state. History of the statute given. Robinson v. Moore, 76 Miss. 89, 23 So. 631, 1898 Miss. LEXIS 66 (Miss. 1898).

Query, whether both parties must have resided in the state where the cause of action accrued until the bar of that state had attached. Robinson v. Moore, 76 Miss. 89, 23 So. 631, 1898 Miss. LEXIS 66 (Miss. 1898).

The statute [Code 1942, § 741] applies only where a nonresident in whose favor the statute had accrued afterwards removes into this state. Louisiana & M. R. T. Co. v. Long, 159 Miss. 654, 131 So. 84, 1930 Miss. LEXIS 358 (Miss. 1930); Louisville & N. R. Co. v. Pool, 72 Miss. 487, 16 So. 753, 1894 Miss. LEXIS 109 (Miss. 1894).

2. Particular applications.

Suit was not timely filed under Miss. Code Ann. §15-1-49(1) because (1) that limitations period only applied if no other limitation period applied, and (2) Miss. Code Ann. §15-1-65 prescribed a limitation period by applying the limitations period from the jurisdiction where the cause of action accrued. N. Am. Midway Entm't, LLC v. Murray, 200 So.3d 437, 2016 Miss. LEXIS 386 (Miss. 2016).

It was error to deny a motion to dismiss alleged injured parties’ personal injury suit because the cause of action accrued in Louisiana, where suit was time-barred, and, as a result, the suit was time-barred in Mississippi. N. Am. Midway Entm't, LLC v. Murray, 200 So.3d 437, 2016 Miss. LEXIS 386 (Miss. 2016).

Summary judgment granted against two corporations licensed to do business in the State of Mississippi on the grounds that the State’s three-year statute of limitations did not apply to an incident that occurred in the State because the corporations were foreign corporations was reversed because the two corporations should have been considered residents for purposes of invocation of the State statute of limitations, in much the same way as the corporations would be able to invoke the use of the Mississippi long arm statute, Miss. Code Ann. §13-3-57. St. Paul Fire & Marine Ins. Co. v. Paw Paw's Camper City, Inc., 346 F.3d 153, 2003 U.S. App. LEXIS 20081 (5th Cir. Miss. 2003).

Mississippi statute of limitations would apply in action brought by Pennsylvania resident against manufacturer of farm combine, purchased in Pennsylvania, for injuries sustained in Pennsylvania while cleaning combine, since action was brought in District Court in Mississippi on grounds that manufacturer of combine was qualified to do business in Mississippi at time action accrued, and even though case was subsequently transferred to Pennsylvania. Ferens v. John Deere Co., 494 U.S. 516, 110 S. Ct. 1274, 108 L. Ed. 2d 443 (1990), on remand, 914 F.2d 242 (3d Cir. Pa. 1990), but see Varnado v. Danek Medical, Inc., (E.D. La. Aug. 19, 1998).

In action brought in District Court in Mississippi, fact that statute of limitations of another state, which state has most significant relationship to occurrence and parties, is deemed procedural does not preclude application of Mississippi’s “following statute”, so as to make other state’s one year limitations period applicable to products liability in negligence claims against seller of cash register. Jackson v. National Semi-Conductor Data Checker/DTS, Inc., 660 F. Supp. 65, 1986 U.S. Dist. LEXIS 17685 (S.D. Miss. 1986).

Mississippi Code §15-1-65 was inapplicable to Mississippi residents’ common law action brought in Mississippi seeking to recover damages for injuries incurred in Louisiana while employed by an individual defendant and a corporate defendant which were subject to suit in Mississippi at the time of alleged accident causing the injuries. White v. Malone Properties, Inc., 494 So. 2d 576, 1986 Miss. LEXIS 2894 (Miss. 1986).

Where a cause of action arising in Kansas which would have been barred by the Kansas statute of limitations had the action been brought in Kansas was timely filed in Mississippi under Mississippi’s statute of limitations against a defendant who was a nonresident of Mississippi, the Mississippi statute of limitations was appropriate where the Kansas statute of limitations was considered procedural rather than substantive by Kansas courts. Steele v. G. D. Searle & Co., 422 F. Supp. 560, 1976 U.S. Dist. LEXIS 12125 (S.D. Miss. 1976).

This statute did not apply in favor of persons who were residents of Mississippi at the time the cause of action accrued, even though the accrual took place in another state. Cummings v. Cowan, 390 F. Supp. 1251, 1975 U.S. Dist. LEXIS 13512 (N.D. Miss. 1975).

This section did not apply to an action arising out of an automobile accident which occurred in Mississippi, even though all of the parties and witnesses were residents of Alabama. Vick v. Cochran, 316 So. 2d 242, 1975 Miss. LEXIS 1705 (Miss. 1975).

Cause of action arising from breach of contract in another state is governed by Mississippi statute of limitations in which action thereon was brought where defendant had never resided in Mississippi. Fisher v. Burk, 123 Miss. 781, 86 So. 300, 1920 Miss. LEXIS 80 (Miss. 1920).

Mississippi statute of limitations controls in action in this state on note made in Ontario, Canada. Philp v. Hicks, 112 Miss. 581, 73 So. 610, 1916 Miss. LEXIS 150 (Miss. 1916).

This section [Code 1942, § 741] inapplicable to action against domestic railroad companies for personal injury inflicted in foreign state. New Orleans G. N. R. Co. v. Fortinberry, 107 Miss. 79, 64 So. 966, 1914 Miss. LEXIS 52 (Miss. 1914).

A railroad company operating a road in this state, and therefore suable as a resident here, cannot plead the statute against an action for stock killed in another state where the statute of limitations, if suit were there brought, would be a bar. Louisville & N. R. Co. v. Pool, 72 Miss. 487, 16 So. 753, 1894 Miss. LEXIS 109 (Miss. 1894).

RESEARCH REFERENCES

CJS.

54 C.J.S., Limitations of Actions § 43.

Law Reviews.

1987 Mississippi Supreme Court Review, Civil procedure. 57 Miss. L. J. 443, August, 1987.

Abbott, Venue of transitory actions against resident individual citizens in Mississippi – Statutory revision could remove needless complexity. 58 Miss. L. J. 1, Spring, 1988.

Jackson, Legislative reform of statutes of limitations in Mississippi: proposed interpretations, possible problems. 9 Miss. College LR 231, Spring 1989.

Litigation in Mississippi Today: A Symposium: Class Actions & Joinder in Mississippi, 71 Miss. L.J. 447, Winter, 2002.

Cross References —

Effect of fraud on right to bring action in equity, see §15-1-9.

Fraud in the probate of a will, see §91-7-23.

JUDICIAL DECISIONS

1. In general.

2. What constitutes concealed fraud, generally.

3. — Particular cases.

4. Notice or knowledge.

5. Reasonable diligence.

6. Persons affected.

7. Evidence.

8. Pleading.

1. In general.

Where lenders made a sufficient showing of affirmative acts by a borrower to conceal a fraud in the inducement claim, it was a matter for the jury to consider whether the claim was fraudulently concealed from the lenders until discovered. Whitaker v. Limeco Corp., 32 So.3d 429, 2010 Miss. LEXIS 182 (Miss. 2010).

Trial court erred in granting summary judgment to a manufacturer of poultry houses and a general contractor, in a suit brought by farmers, because, under either an equitable-estoppel theory or the fraudulent-concealment exception of Miss. Code Ann. §15-1-67, the application of Miss. Code Ann. §15-1-41 could be barred. Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Clients’ claim of fraudulent concealment was hollow where they presented no evidence to satisfy the test for fraudulent concealment; they offered no evidence to back up their bare assertion that the attorneys fraudulently concealed their alleged negligence, and the clients made no offering of any affirmative act designed to conceal a cause of action. Channel v. Loyacono, 954 So. 2d 415, 2007 Miss. LEXIS 223 (Miss. 2007).

Six-year limitation of Miss. Code Ann. §15-1-41 is not affected by the date of accrual, and by extension not tolled by Miss. Code Ann. §15-1-67; therefore, summary judgment was properly granted to a builder and a manufacturer in a property damage case arising from leaky roofs on chicken houses where a lawsuit was not filed until 2004, despite the fact that the leaks began shortly after completion in 1995 or 1996. Windham v. Latco of Miss., Inc., 972 So. 2d 652, 2007 Miss. App. LEXIS 49 (Miss. Ct. App. 2007), rev'd, 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Concealment statute does not affect the statute of repose as the statute of repose operates independently of causes of action and by its nature bars hidden claims and accruals of causes of action are irrelevant to its operation. Estes v. Bradley, 954 So. 2d 455, 2006 Miss. App. LEXIS 912 (Miss. Ct. App. 2006), overruled in part, Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Trustee alleged no specific affirmative act by the company to conceal the true amount of royalties owed the trust; thus, his claim of fraudulent concealment had no merit, and the statute of limitations was not tolled. Nygaard v. Getty Oil Co., 918 So. 2d 1237, 2005 Miss. LEXIS 422 (Miss. 2005).

Insureds simply made vaguely referenced misrepresentations and concealment attributable to the insurer without specifying any factual basis for those assertions. Therefore, the fraudulent concealment doctrine did not apply to the their fraud claims and summary judgment for the insurer was proper. Robinson v. Southern Farm Bureau Cas. Co., 915 So. 2d 516, 2005 Miss. App. LEXIS 967 (Miss. Ct. App. 2005).

To toll the limitation period, a plaintiff must prove that the defendant engaged in affirmative acts of concealment, that the plaintiff acted with due diligence in attempting to discover the claim, and that the plaintiff was unable to do so. Frye v. Am. Gen. Fin., Inc., 304 F. Supp. 2d 876, 2004 U.S. Dist. LEXIS 8489 (S.D. Miss.), amended, 307 F. Supp. 2d 836, 2004 U.S. Dist. LEXIS 19108 (S.D. Miss. 2004).

To avail themselves of the doctrine of fraudulent concealment to toll the running of the limitations period, plaintiffs have a twofold obligation to demonstrate that (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was performed on their part to discover it. Anderson v. City Fin. Co., 2003 U.S. Dist. LEXIS 25226 (S.D. Miss. July 11, 2003).

Action by plaintiff against former employer for slander was time-barred where publication took place more than one year prior to institution of action, despite fact that plaintiff did not discover defamatory statements until more than one year after they were made. EEOC v. Southern Pub. Co., 732 F. Supp. 682, 1988 U.S. Dist. LEXIS 17306 (S.D. Miss. 1988).

A cause of action for malpractice does not accrue, so as to set the statute of limitations to running while the doctor concealed the facts from the patient. Sheets v. Burman, 322 F.2d 277, 1963 U.S. App. LEXIS 4269 (5th Cir. Miss. 1963).

The liability of an attorney for breach of duty attaches immediately upon the breach, and the statute of limitations begins to run then, unless there is fraudulent concealment of the cause of action, in which case it begins to run from its discovery, or from the time when reasonable diligence would have led to its discovery. Hudson v. Kimbrough, 74 Miss. 341, 20 So. 885, 1896 Miss. LEXIS 131 (Miss. 1896).

2. What constitutes concealed fraud, generally.

Death row inmates were not entitled to have the three-year statute of limitations for personal injury actions in Miss. Code Ann. §15-1-49 tolled based upon fraudulent concealment under Miss. Code Ann. §15-1-67 because there was no evidence that the State affirmatively concealed its protocol governing the manner in which it carried out executions or that the inmates were unaware that a 42 U.S.C.S. § 1983 action was the proper method for challenging the State’s lethal injection protocol. Walker v. Epps, 587 F. Supp. 2d 763, 2008 U.S. Dist. LEXIS 53793 (N.D. Miss.), aff'd, 550 F.3d 407, 2008 U.S. App. LEXIS 25327 (5th Cir. Miss. 2008).

Affirmative act of fraudulent concealment must occur post-completion of the fraudulent act in order to toll the statute of limitations under Miss. Code Ann. §15-1-67. Nat'l Union Fire Ins. Co. v. Blasio, 2008 U.S. Dist. LEXIS 42669 (N.D. Miss. May 23, 2008).

Growers failed to demonstrate any affirmative act on the part of the farm to conceal any information and did not provide any details of how the farm concealed its alleged fraudulent actions; merely alleging that the other side had complete control of the data would not suffice; the growers did not demonstrate any action by them to obtain any of the allegedly concealed information. Sanderson Farms, Inc. (Prod. Div.) v. Ballard, 917 So. 2d 783, 2005 Miss. LEXIS 660 (Miss. 2005).

Borrower’s misrepresentation and negligence claims against a credit insurer’s employee were time-barred under Miss. Code Ann. §15-1-49 and the statute was not tolled because the borrower received, but did not read, copies of all pertinent documents, which clearly stated that credit insurance was optional. Bell v. Am. Gen. Fin., Inc., 267 F. Supp. 2d 582, 2003 U.S. Dist. LEXIS 10718 (S.D. Miss. 2003).

Any reliance plaintiffs may have placed on the oral statements of the loan agents regarding credit life insurance that were contradicted by the express language of the loan agreements was per se unreasonable, and such oral statements could not constitute fraudulent concealment. Agnew v. Wash. Mut. Fin. Group, LLC, 244 F. Supp. 2d 672, 2003 U.S. Dist. LEXIS 7380 (N.D. Miss. 2003).

To establish a claim of fraudulent con-cealment under Miss. Code Ann. §15-1-67, plaintiffs must (1) show some act of an affirmative nature designed to prevent and which does prevent discovery of the claim, and (2) prove that even though they acted with due diligence in attempting to discover the claim, they were unable to do so. Ross v. Citifinancial, Inc., 2002 U.S. Dist. LEXIS 26733 (S.D. Miss. Mar. 18, 2002), amended, 2002 U.S. Dist. LEXIS 26740 (S.D. Miss. May 8, 2002), aff'd, 344 F.3d 458, 2003 U.S. App. LEXIS 18068 (5th Cir. Miss. 2003).

In order for a particular misrepresentation to constitute fraud which would toll the statute of limitations, it must be made under such circumstances, and be of such nature, that a reasonably prudent person would act thereon. Wilson v. Retail Credit Co., 325 F. Supp. 460, 1971 U.S. Dist. LEXIS 14248 (S.D. Miss. 1971), aff'd, 457 F.2d 1406, 1972 U.S. App. LEXIS 10066 (5th Cir. Miss. 1972).

Acts of fraud resulting in concealment of cause of action, to postpone its accrual until fraud shall be or might have been discovered, must be committed by defendants or someone in privity with them. Burton v. John Hancock Mut. Life Ins. Co., 171 Miss. 596, 157 So. 525, 158 So. 474, 1934 Miss. LEXIS 243 (Miss. 1934).

Where false representation as to acreage of tract is not fraudulently concealed by vendor after sale, purchaser’s right of action for deceit accrues upon completion of sale induced by false representation. Dunn v. Dent, 169 Miss. 574, 153 So. 798, 1934 Miss. LEXIS 73 (Miss. 1934).

Cause of action of mortgagee against parties cashing check for award in condemnation proceeding was not concealed, and therefore extended, where mortgagee was served in proceeding but did not appear. Federal Land Bank v. Collins, 156 Miss. 893, 127 So. 570, 1930 Miss. LEXIS 233 (Miss. 1930).

Vendor’s continuing false representations as to acreage after sale held fraudulent concealment tolling limitations. Lundy v. Hazlett, 147 Miss. 808, 112 So. 591, 1927 Miss. LEXIS 292 (Miss. 1927).

Fraudulent concealment of cause of action cannot be predicated upon open and public acts of defendant. Thornton v. Natchez, 88 Miss. 1, 41 So. 498, 1906 Miss. LEXIS 193 (Miss. 1906), writ of error dismissed, 212 U.S. 559, 29 S. Ct. 687, 53 L. Ed. 651, 1908 U.S. LEXIS 1574 (U.S. 1908).

Concealment of the cause of action for a libel contained in a letter sent by mail cannot be predicated upon any act of the writer at the place where the letter was mailed. McCarlie v. Atkinson, 77 Miss. 594, 27 So. 641, 1900 Miss. LEXIS 27 (Miss. 1900).

The sending of a libelous letter by mail does not alone constitute a concealment of its contents or publication. McCarlie v. Atkinson, 77 Miss. 594, 27 So. 641, 1900 Miss. LEXIS 27 (Miss. 1900).

Where the fraud itself is the basis of the right of action, unless a relation of trust and confidence exists between the parties, the defendant must have been guilty of some positive act of fraudulent representation or concealment directly towards the party injured. State v. Furlong, 60 Miss. 839, 1883 Miss. LEXIS 22 (Miss. 1883); Edwards v. Gibbs, 39 Miss. 166, 1860 Miss. LEXIS 39 (Miss. 1860); Buckner v. Calcote, 28 Miss. 432, 1855 Miss. LEXIS 1 (Miss. 1855), writ of error dismissed, 59 U.S. 243, 15 L. Ed. 348, 1855 U.S. LEXIS 693 (U.S. 1856).

Where the matter is of record, and the party complaining has the means of finding out the character of the transaction, the statute does not apply. Fleming v. Grafton, 54 Miss. 79, 1876 Miss. LEXIS 14 (Miss. 1876).

3. — Particular cases.

Tolling provision in this statute had no application because the causes of action for wrongful death, intentional infliction of emotional distress, and civil conspiracy were not concealed from an administrator; an attempt to beat a murder charge based on the actions alleged in the instant case did not prevent the administrator from discovering potential civil claims. Sharkey v. Barber, 188 So.3d 1245, 2016 Miss. App. LEXIS 73 (Miss. Ct. App. 2016).

In a medical malpractice suit, the trial court properly denied summary judgment to defendant doctor based on the two-year statute of limitations because defendant’s denial of participation in the patient’s treatment could have constituted fraudulent concealment and ought to have tolled the statute of limitations until plaintiffs learned that an issue of fact existed regarding defendant’s involvement. Holaday v. Moore, 169 So.3d 847, 2015 Miss. LEXIS 206 (Miss. 2015).

Insurance policies were ambiguous where, in part, the definition of maturity date in the policies failed to explain that the payment of the planned premium would not be sufficient to keep the policy in effect to the maturity date; an issue of fact remained as to when the alleged fraud was consummated upon the insureds and whether the limitations period was tolled pursuant to Miss. Code Ann. §15-1-67. Hicks v. N. Am. Co. for Life & Health Ins., 47 So.3d 181, 2010 Miss. App. LEXIS 16 (Miss. Ct. App.), cert. denied, 49 So.3d 1139, 2010 Miss. LEXIS 588 (Miss. 2010).

Although a buyer alleged that a software seller tried to conceal integration problems by blaming the buyer for customizing the software, and by trying to convince the buyer to upgrade to a newer version of the software, the buyer failed to demonstrate how the seller’s alleged conduct could and did prevent the buyer from discovering its claim. Buyer could not reasonably rely on the representations it cited, and the record was simply absent of any evidence that it did. Peavey Elecs. Corp. v. Baan U.S.A., Inc., 10 So.3d 945, 2009 Miss. App. LEXIS 194 (Miss. Ct. App. 2009).

Excess insurer’s fraud and other tort claims against parties involved in settling medical malpractice claims against two doctors were barred under the limitations periods in Miss. Code Ann. §§15-1-35,15-1-49, which were not tolled under Miss. Code Ann. §15-1-67 because a letter from counsel for one of the doctors, which letter was written one year before the insurer filed suit, invited the excess insurer to discuss the withdrawal of the doctor’s consent to settle, which the excess insurer alleged led to its payment obligations on behalf of another doctor whose primary coverage was exhausted, and counsel’s letter did not attempt to conceal anything from the excess insurer. Nat'l Union Fire Ins. Co. v. Blasio, 2008 U.S. Dist. LEXIS 42669 (N.D. Miss. May 23, 2008).

Where a shareholder allegedly entered into a settlement agreement based on fraud, the shareholder’s claims against a corporate officer, a securities company, and others were time-barred because, inter alia, (1) the shareholder admitted that the shareholder became suspicious about the corporation’s environmental liability as far back as 1993, and (2) an alleged “firm commitment letter” was not a guarantee that the securities company would underwrite the corporation’s public offering upon which the shareholder could have relied. Pope v. Sorrentino, 992 So. 2d 1194, 2008 Miss. App. LEXIS 228 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 531 (Miss. 2008).

Chancery court properly dismissed a wife’s motion for contempt and modification of a property settlement in a divorce proceeding where the wife’s claim for modification of the property settlement was time-barred under the statute of limitations; because there was no evidence of any fraudulent concealment on the part of the husband regarding his 401(k) plan, the statute of limitations ran from the entry of the judgment of divorce. Shaw v. Shaw, 985 So. 2d 346, 2007 Miss. App. LEXIS 688 (Miss. Ct. App. 2007).

Where plaintiff borrowers alleged fraudulent and negligent inducement into purchasing credit insurance in connection with loans, but alleged no post-sale act concealing that arrangement subsequent to the loans, they were not entitled to tolling under Mississippi’s fraudulent concealment statute, Miss. Code Ann. §15-1-67, on the claims against defendant insurers, and all of the claims were time-barred under Miss. Code Ann. §15-1-49(1) because the last loan was dated September 15, 1999, and the action was not filed until December 28, 2002. Jones v. Life of the S. Ins. Corp., 2006 U.S. Dist. LEXIS 1414 (S.D. Miss. Jan. 4, 2006).

Where the debtors filed suit against mortgage and insurance companies for breach of fiduciary duties and negligent mispresentation more than four years after receiving their mortgage loans, the case was barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49; fraudulent concealment did not toll the statute of limitations, and defendants did not take any affirmative actions which were designed to prevent discovery of the claims. Carter v. Citigroup, Inc., 938 So. 2d 809, 2006 Miss. LEXIS 366 (Miss. 2006).

Summary judgment was granted to an insurer and an agent in a fraud action relating to the purchase of life insurance because it was time-barred under Miss. Code Ann. §15-1-49 since the claim should have been filed three years from the completion of the sale; moreover, there was no fraudulent concealment tolling the limitations period since the purchaser was not precluded from discovering her claim in the language of the policy. Warren v. Horace Mann Life Ins. Co., 949 So. 2d 770, 2006 Miss. App. LEXIS 423 (Miss. Ct. App. 2006).

Bank’s claims against an insurer, including fraudulent inducement in the purchase of a policy, were dismissed as time-barred under Miss. Code §15-1-49, because even if the bank had not examined the policy when it was purchased, or if its terms were not clear, the bank was put on notice that the single premium payment may not have been sufficient to keep the policy in force; neither the oral representations from the insurer’s agent that a single payment would maintain the policy, the express assurances that payments were not due, nor the zero balance statements over six years constituted concealment to save the case pursuant to Miss. Code §15-1-67. Peoples Bank Asset & Trust Mgmt. Dep't v. Great W. Life & Annuity Ins. Co., 2005 U.S. Dist. LEXIS 16752 (S.D. Miss. Feb. 7, 2005).

Summary judgment was granted to corporations’ on fraudulent misrepresentation claims because the tolling provisions of Miss. Code Ann. §15-1-67 were inapplicable, and thus individuals’ claims were barred by the three year statute of limitation in Miss. Code Ann. §15-1-49, where there was no evidence that the corporations engaged in affirmative acts of concealment that prevented the individuals from discovering their claims in a timely manner, in that the individuals’ allegations instead focused on the corporations’ alleged conduct prior to, and contemporaneous with, the purchase of the insurance policies. Bland v. Fleet Fin., Inc., 318 F. Supp. 2d 392, 2004 U.S. Dist. LEXIS 14997 (N.D. Miss. 2004).

Loans that were the subject of the individuals’ complaint were all made in or before 1994, and yet the individuals filed suit on February 2, 2002, well over three years after the date of the last loan to any of the individuals, in violation of Miss. Code Ann. §15-1-3. The individuals’ causes of action did not survive because the individuals failed to identify fraudulent concealment by a bank employee which, had it occurred and been proven, could have defeated the time bar, pursuant to Miss. Code Ann. §15-1-67. Stacher v. Am. Gen. Fin., Inc., 2003 U.S. Dist. LEXIS 18713 (S.D. Miss. Mar. 7, 2003).

Insureds’ claim against an individual insurance agent for fraudulent misrepresentation was barred by the three-year statute of limitations, and the statute of limitations was not tolled because the insureds presented no evidence of any affirmative acts of concealment by the agent ; moreover, if the insureds had read the policies, they would have known that the agents were not authorized to change the terms of the contract, and that the policies stated nothing about receiving retirement benefits at age 65. Smith v. Union Nat'l Life Ins. Co., 286 F. Supp. 2d 782, 2003 U.S. Dist. LEXIS 17783 (S.D. Miss. 2003).

Borrower’s misrepresentation and negligence claims against a credit insurer’s employee were time-barred under Miss. Code Ann. §15-1-49 and the statute was not tolled because the borrower received, but did not read, copies of all pertinent documents, which clearly stated that credit insurance was optional. Bell v. Am. Gen. Fin., Inc., 267 F. Supp. 2d 582, 2003 U.S. Dist. LEXIS 10718 (S.D. Miss. 2003).

In a suit arising out of the purchase of two insurance policies, an insured’s claims against three insurance agents for fraud, suppression/omission, negligence, and negligent suppression were barred by the statute of limitations because the insured failed to prove an affirmative act of fraudulent concealment after completion of the insurance sales or that she acted with due diligence in attempting to discover her claims. Williams v. Union Nat'l Life Ins. Co., 2003 U.S. Dist. LEXIS 26332 (S.D. Miss. Sept. 25, 2003), vacated, 2004 U.S. Dist. LEXIS 27494 (S.D. Miss. Sept. 17, 2004).

Trial court did not err in dismissing a fraud and misrepresentation case against an insurer with prejudice because the claim was barred by the six-year statute of limitations in Miss. Code Ann. § 722 (1972); the cause of action was not tolled by Miss. Code Ann. §15-1-67 because the insurer did nothing to prevent two insureds from discovering their cause of action. Stephens v. Equitable Life Assur. Soc'y of the United States, 850 So. 2d 78, 2003 Miss. LEXIS 117 (Miss. 2003).

In borrowers’ suit arising from allegedly fraudulent loan transactions, agents were fraudulently joined and remand was not necessary, because the borrowers could not establish a cause of action against the agents in state court since the viable claims against the agents were time-barred and the statute of limitations was not tolled under the doctrine of fraudulent concealment. Ross v. First Family Fin. Servs., Inc., 2002 U.S. Dist. LEXIS 23212 (N.D. Miss. Aug. 26, 2002).

The statute of limitations was not tolled with regard to the defendant’s claim pertaining to an adjustment of retirement account funds that were in the plaintiff’s name, where the defendant never alleged that the plaintiff fraudulently concealed any misdeeds and the record indicated that the defendant knew of each payment of retirement account funds on behalf of the plaintiff. Hall v. Dillard, 739 So. 2d 383, 1999 Miss. App. LEXIS 157 (Miss. Ct. App. 1999).

In order to toll the statute of limitations, the plaintiffs were required to prove that their son, who defrauded them while acting as their investment advisor, was in privity with the defendant financial services company or acting as an agent of that company. Smith v. Franklin Custodian Funds, Inc., 726 So. 2d 144, 1998 Miss. LEXIS 526 (Miss. 1998).

In a construction defect action, the plaintiff’s allegation that the defendant fraudulently concealed construction deficiencies because “parts of the metal supports were covered by 2 X 8 wooden boards” and the “top concealed some of the faulty welds as well as insulation which covered other welding joints” did not constitute fraudulent concealment of a cause of action within the meaning of §15-1-67. Reich v. Jesco, Inc., 526 So. 2d 550, 1988 Miss. LEXIS 307 (Miss. 1988).

The rules and regulations of a retail credit company and its agreements with its customers to keep its reports confidential did not amount to a fraud or the concealment of a fraud within the purview of this section [Code 1942, § 742], nor did the company have any duty or obligation to reveal the contents of its confidential reports to the person who was the subject of such report (but see 15 USC, § 1681q), and the period of limitation of any cause of action for libel based on such report would commence running at the time the report was received by the company’s customer. Wilson v. Retail Credit Co., 438 F.2d 1043, 1971 U.S. App. LEXIS 11984 (5th Cir. Miss. 1971).

In a libel suit based on the contents of a credit report, the court was of the opinion that due to the qualified privilege of confidential credit reports made in good faith in the every day course of business, the fact that the contents of the report were not earlier revealed to plaintiff did not amount to a concealed fraud within the meaning of this section [Code 1942, § 742]. Wilson v. Retail Credit Co., 325 F. Supp. 460, 1971 U.S. Dist. LEXIS 14248 (S.D. Miss. 1971), aff'd, 457 F.2d 1406, 1972 U.S. App. LEXIS 10066 (5th Cir. Miss. 1972).

Where one of the parties to an agreement for the exchange of land failed to execute a deed to the property he exchanged, but the other party and her son moved thereon, the son continuing to occupy the land thereafter for many years and until the heirs of the first mentioned party brought an action in ejectment, the statute postponing the running of limitations until after the actual or constructive knowledge of concealed fraud was inapplicable, and would be inconsistent with the ten-year statute establishing title by adverse possession, since under the latter statute knowledge of an open, notorious and adverse possession may be presumed. Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578, 1942 Miss. LEXIS 40 (Miss. 1942).

This section [Code 1942, § 742] did not apply to permit recovery for disability payments due more than six years before the commencement of an action therefor, where the insurer’s refusal to pay them was based upon reasonable grounds for a difference of opinion and there was no fraudulent concealment or wilful misrepresentation. Columbian Mut. Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225, 1938 Miss. LEXIS 323 (Miss. 1938).

Statement of agent for insurer who was not present at death of insured that insured died of heart disease, and beneficiary entitled to only indemnity for natural death, was statement of opinion and not misrepresentation on which could be predicated charge of fraud. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

Mere silence of insurer as to contents of proof of death which was submitted by beneficiary’s physician who attended insured, did not constitute fraud which would toll running of statute of limitations, where beneficiary accepted amount payable for natural death and failed to make inquiry for approximately six years as to true facts of insured’s death. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

No concealed fraud existed where a bank paid check to person other than drawer, believing forged endorsement to be genuine, and delivered cancelled check to drawer; limitations commenced running when bank rendered drawer statement showing check charged against it. Masonic Ben. Ass'n v. First State Bank, 99 Miss. 610, 55 So. 408, 1911 Miss. LEXIS 232 (Miss. 1911).

4. Notice or knowledge.

County was not entitled to dismissal of a civil rights claim alleging that the county through its former sheriff and deputy aided a campaign of violence of a white supremacist group by refusing to investigate and by covering up the commission of the murder of plaintiffs’ relatives because the complaint sufficiently alleged a basis under Miss. Code Ann. §15-1-67 for finding that plaintiffs’ cause of action accrued within the three year limitations period when a federal investigation revealed the involvement of the sheriff and deputy and not when the bodies were discovered. Moore v. Franklin County, 638 F. Supp. 2d 703, 2009 U.S. Dist. LEXIS 55349 (S.D. Miss. 2009).

Eighth Amendment claims for equitable relief made under 42 U.S.C.S. § 1983 by death-sentenced inmates challenging their method of execution were barred by the three-year statute of limitations of Miss. Code. Ann. §15-1-49 in that the claims accrued after completion of direct review or the date when the lethal injection statute of Miss. Code Ann. §99-19-51 became effective and the limitations period was not tolled by Miss. Code Ann. §15-1-67 or by equitable estoppel. Walker v. Epps, 550 F.3d 407, 2008 U.S. App. LEXIS 25327 (5th Cir. Miss. 2008), cert. denied, 558 U.S. 829, 130 S. Ct. 57, 175 L. Ed. 2d 45, 2009 U.S. LEXIS 5526 (U.S. 2009).

Where borrowers claimed that they were misled into believing that they needed to obtain credit life and disability insurance in order to obtain loans, the court found that the borrowers’ claims, which accrued more than three years before the lawsuit was filed, were time-barred pursuant to Miss. Code Ann. §15-1-49; tolling pursuant to Miss. Code Ann. §15-1-67 was inapplicable because of affirmative disclosures made in the borrowers’ loan applications and the Federal Disclosure Statements. Benson v. Am. Heritage Life Ins. Co., 2006 U.S. Dist. LEXIS 49851 (S.D. Miss. July 14, 2006).

Alleged sexual abuse victim failed to satisfy either prong of the fraudulent concealment test where she did not present any evidence showing that any party committed any act or conduct of an affirmative nature designed to prevent, and which did prevent, discovery of a claim; because the victim failed to satisfy either prong of the fraudulent concealment test, and because she was aware of the abuse, the statute of limitations was not tolled. Doe v. Roman Catholic Diocese, 947 So. 2d 983, 2006 Miss. App. LEXIS 435 (Miss. Ct. App. 2006), cert. denied, 2007 Miss. LEXIS 90 (Miss. Jan. 25, 2007).

In bank’s suit alleging that an insurer acted fraudulently in representing that an insurance policy purchased by the bank for one of its trusts could be paid for with a single premium payment, the three-year statute of limitations in Miss. Code Ann. §15-1-49 was not tolled by Miss. Code Ann. §15-1-67, as the insurer did not do anything to prevent the bank from discovering that additional premium payments might be due, as was stated in the policy itself. Peoples Bank Asset & Trust Mgmt. Dep't v. Great W. Life & Annuity Ins. Co., 2005 U.S. Dist. LEXIS 16755 (S.D. Miss. Feb. 7, 2005).

Customers’ claims that they were fraudulently induced by insurance company employees to purchase credit insurance policies in connection with consumer loans were barred by the three-year statute of limitations set forth in Miss. Code Ann. §15-1-49 because all claims accrued at the time the loan agreements were executed because the customers were charged with notice where it was undisputed that each loan agreement contained an insurance disclosure which informed the borrower that credit insurance was not required and that the decision to make the loan would not be affected by the borrower’s decision. The customers failed to establish or allege any fraudulent concealment, therefore the customers could not avail themselves of the tolling mechanism provided under Miss. Code Ann §15-1-67. Andrus v. Ellis, 887 So. 2d 175, 2004 Miss. LEXIS 1343 (Miss. 2004).

In an action by Mississippi borrowers against an out-of-state lender and four Mississippi employees of the lender, the borrowers’ myriad claims against the employees were barred by the three-year limitation period of Miss. Code Ann. §15-1-49(1) and the employees had to be dismissed from the action, where the borrowers alleged that defendants had wrongfully induced the borrowers to buy credit insurance when the borrowers obtained their loans, and where Miss. Code Ann. §15-1-67 did not toll the limitation period because the loan documents clearly showed that credit insurance was being purchased. Frye v. Am. Gen. Fin., Inc., 304 F. Supp. 2d 876, 2004 U.S. Dist. LEXIS 8489 (S.D. Miss.), amended, 307 F. Supp. 2d 836, 2004 U.S. Dist. LEXIS 19108 (S.D. Miss. 2004).

Where plaintiff borrowers raised claims, including a claim that the borrowers were wrongfully charged for credit insurance products provided by defendant insurers, the borrowers’ claims were time-barred, as filed more than three years after the borrowers obtained their loans, and the statute was not tolled based on fraudulent concealment of the borrowers’ claims under Miss. Code Ann. §15-1-67, as the borrowers failed to plead or offer any proof of an affirmative act of fraudulent concealment post completion of the loan, nor did they plead or offer any proof that they acted with due diligence in attempting to discover their claims, further, with reasonable diligence, the borrowers would have discovered the alleged fraud on the date they obtained their loans, and the loan and credit insurance documents alone placed them on notice of the terms of their agreements, including the fact that credit insurance was not required. Queen v. Am. Gen. Fin., Inc., 289 F. Supp. 2d 782, 2003 U.S. Dist. LEXIS 24299 (S.D. Miss. 2003).

Contracting party was under a legal obligation to read a contract before signing it, and knowledge of the contents of a contract were imputed to a contract party even if he did not read the contract before signing it; therefore, the statute of limitations on a debtor’s time-barred fraud and negligent misrepresentation claims against a lender’s resident agents was not tolled by any reliance on the agents’ alleged misrepresentations of the contract terms. Brumfield v. Pioneer Credit Co., 291 F. Supp. 2d 462, 2003 U.S. Dist. LEXIS 24347 (S.D. Miss. 2003).

Court reversed itself on a motion to remand because it had erred in concluding that the issue was whether subsequent fraudulent acts had occurred to toll the statute of limitations, when the issue was whether plaintiffs knew or should have known of the fraud, and because plaintiffs did know of the fraud by virtue of documents in their possession, the statute of limitations under Miss. Code Ann. §15-1-76 was not tolled, and there was “no possibility” of recovery against the resident defendants. Rainwater v. Lamar Life Ins. Co., 246 F. Supp. 2d 546, 2003 U.S. Dist. LEXIS 2526 (S.D. Miss. 2003).

Under Miss. Code Ann. §15-1-67, the statute of limitations on the fraudulent concealment claim was tolled where plaintiffs demonstrated reasonable diligence in failing to find the alleged fraud. Rainwater v. Lamar Life Ins. Co., 207 F. Supp. 2d 561, 2002 U.S. Dist. LEXIS 11924 (S.D. Miss. 2002), set aside, 246 F. Supp. 2d 546, 2003 U.S. Dist. LEXIS 2526 (S.D. Miss. 2003).

Where, there being no administration of a decedent’s estate, the decedent’s brother collected payment on a mortgage, owned by the decedent, and paid the amount received to the decedent’s widow and son, the limitation statute applicable to cases of concealed fraud was not available in an action by the daughters of the decedent to recover from the brother’s estate their share of the amount paid over by him to the wife and son, since there was no proof of any fraud and concealment, the mortgage had been recorded on the day of its execution, which was sufficient to put the daughters on notice of its existence, and everything that was thereafter done about it was at all times easily ascertainable by the daughters upon the exercise of any reasonable diligence. Rimmer v. Austin, 191 Miss. 664, 4 So. 2d 224, 1941 Miss. LEXIS 179 (Miss. 1941).

Notice to buyer of corporate bonds of default of corporation on coupons and of resulting organization of bondholders’ protective committee held sufficient notice of falsity of seller’s representations that bonds were safe investment to start running of three-year limitation under this section [Code 1942, § 742]. First Nat'l Bank v. Johnson, 177 Miss. 634, 171 So. 11, 1936 Miss. LEXIS 268 (Miss. 1936).

Statute [Code 1942, § 742] does not run against remainderman unless he knew purchaser from life tenant was claiming full fee. Belt v. Adams, 125 Miss. 387, 87 So. 666, 1921 Miss. LEXIS 127 (Miss. 1921).

The mere filing of a bill to cancel a deed, before service of summons on or publication for a defendant who has no actual notice thereof, is not such constructive notice of the fraud charged as will put in operation against him the statute in cases of concealed frauds. North American Trust Co. v. Lanier, 78 Miss. 418, 28 So. 804, 1900 Miss. LEXIS 81 (Miss. 1900).

5. Reasonable diligence.

Where plaintiff borrowers’ action against defendant lenders, alleging wrongs committed in connection with loan transactions, was barred by Miss. Code Ann. §15-1-49, because the loan documents disclosed all the information the borrowers contended was concealed, and yet they had never even read the documents, due diligence for tolling due to concealment under Miss. Code Ann. §15-1-67 could not be found. Smith v. First Family Fin. Servs., 436 F. Supp. 2d 836, 2006 U.S. Dist. LEXIS 45930 (S.D. Miss. 2006).

Under Miss. Code Ann. §15-1-67, plaintiff is not entitled to the benefits of tolling unless he proves that defendant engaged in affirmative acts of concealment and that even though he acted with due diligence in attempting to discover his cause of action, he was unable to do so. Mendrop v. Shelter Mut. Ins. Co., 2006 U.S. Dist. LEXIS 54783 (N.D. Miss. Aug. 4, 2006).

Plaintiffs’ claim for fraud was barred by the statute of limitations in Miss Code Ann. §15-1-49 because the policies plaintiffs bought from an insurance company explained the terms, and thus nothing prevented plaintiffs from discovering the terms of the policy pursuant to Miss. Code Ann. §15-1-67 even if they were different from what the company and its agent represented. Parker v. Horace Mann Life Ins. Co., 949 So. 2d 57, 2006 Miss. App. LEXIS 374 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 108 (Miss. 2007).

Where investors alleged that investment companies were aware of their agent’s conversion of the investors’ funds before the criminal activity was publicly disclosed, fraudulent concealment did not apply to toll the statutes of limitation; after the agent’s misconduct was discovered, the investors delayed filing their complaints against the companies until well after the limitations periods expired and there was no conduct of the companies that caused the investors’ undue delay. Joe v. Minn. Life Ins. Co., 337 F. Supp. 2d 821, 2004 U.S. Dist. LEXIS 19281 (S.D. Miss. 2004).

Where state residents failed to plead or offer any proof of an affirmative act of fraudulent concealment post completion of the loan, and it was clear that with reasonable diligence the residents would have discovered the alleged fraud on the date they obtained their loans, the statute of limitations in Miss. Code Ann. §15-1-67 was not tolled by fraudulent concealment. Frye v. Am. Gen. Fin., Inc., 307 F. Supp. 2d 836, 2004 U.S. Dist. LEXIS 19108 (S.D. Miss. 2004).

In an action arising from a fatal motor vehicle accident which was allegedly caused by the defendant chasing the decedents and causing them to crash into a truck, the defendant was not entitled to summary judgment on the ground that the statute of limitations expired prior to the commencement of the action. The plaintiffs alleged fraudulent concealment by the defendant and it was for the jury to decide whether the plaintiffs acted with due diligence in investigating the accident. Robinson v. Cobb, 763 So. 2d 883, 2000 Miss. LEXIS 170 (Miss. 2000).

Under Mississippi law, statute of limitations on insured’s claims against life insurer arising out of alleged “churning” was not tolled by fraudulent concealment where insured had ample information at time he purchased second policy, and certainly by time he received his annual statement on original policy, that premiums on new policy were being paid by use of paid up value of old policy. Cunningham v. Massachusetts Mut. Life Ins. Co., 972 F. Supp. 1053, 1997 U.S. Dist. LEXIS 13964 (N.D. Miss. 1997).

The statute of limitations in a legal malpractice action was not tolled through fraudulent concealment even if the defendant attorney did fraudulently conceal his negligence since the plaintiffs, through the exercise of reasonable diligence, should have been able to discover the attorney’s negligence more than 6 years prior to the date on which the complaint was filed where there was very little that the plaintiffs alleged in their complaint that they did not know 9 years before the malpractice suit was filed. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

A person claiming fraud as an excuse for nonaction within the statutory period must exercise reasonable diligence to discover the fraud sooner, or show that he could not with reasonable diligence have so discovered it. Wilson v. Retail Credit Co., 325 F. Supp. 460, 1971 U.S. Dist. LEXIS 14248 (S.D. Miss. 1971), aff'd, 457 F.2d 1406, 1972 U.S. App. LEXIS 10066 (5th Cir. Miss. 1972).

Where a cotenant who held a power of attorney from other cotenants sold timber on land of cotenancy and did not disclose the sale and deposited proceeds in his own bank account, the claim of other cotenants for accounting was not barred by the statute of limitations in view of this section [Code 1942, § 742] providing that a cause accrues when fraud is, or with reasonable diligence might have been discovered. Van Zandt v. Van Zandt, 227 Miss. 528, 86 So. 2d 466, 1956 Miss. LEXIS 722 (Miss. 1956).

Where agent of insurer under life policy containing double indemnity provision tendered check for benefit payable for natural death of insured and stated to beneficiary who was ignorant of circumstances of insured’s death that such amount was all insurer owed beneficiary, the beneficiary’s acceptance of such amount and delivery of policy to insurer and failure for six years to make inquiry as to circumstances of insured’s death, did not constitute “reasonable diligence” to determine cause of insured’s death so as to toll limitations until discovery of true facts. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

To extend period of limitation from date of discovery of fraud by which cause of action was concealed, plaintiff must exercise reasonable diligence to discover facts sooner, or show that he could not have done so. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

Statute [Code 1942, § 742] does not run against complainant exercising reasonable diligence until his discovery of fraud. J. K. Orr Shoe Co. v. Edwards, 111 Miss. 542, 71 So. 816, 1916 Miss. LEXIS 335 (Miss. 1916).

6. Persons affected.

Where trust deed to farm was executed by all of heirs except children of deceased daughter, and part of money advanced was used to discharge ancestor’s trust deeds, right of assignee of trust deed to subrogation to trust deeds as to grandchildren’s undivided interest was barred by six-year limitation, notwithstanding mortgagors’ alleged fraudulent representation that grandchildren were not heirs, where grandchildren did not participate in fraud, and not being joint tenants, but tenants in common with mortgagors, were not their “privies;” term “privies” meaning those who stand in mutual or successive relationship to same rights of property. Burton v. John Hancock Mut. Life Ins. Co., 171 Miss. 596, 157 So. 525, 158 So. 474, 1934 Miss. LEXIS 243 (Miss. 1934).

7. Evidence.

In a case in which the homeowner suffered recurring problems with flash flooding, which caused water to enter his home, the three-year statute of limitations was not tolled based on the doctrine of fraudulent concealment because the homeowner failed to present evidence showing that the neighbors were aware that their wooden fence and landscaping were the cause of the flash flooding; and the homeowner presented no evidence of an affirmative act by the neighbors to prevent the discovery of his claim. Milam v. Kelly, — So.3d —, 2019 Miss. App. LEXIS 361 (Miss. Ct. App. July 30, 2019).

For fraudulent concealment purposes, plaintiff bore the burden of proving that defendant engaged in affirmative acts of concealment and that plaintiff acted with due diligence in attempting to discover defendant’s role but was not able to do so. Patel v. Hill-Rom Co., 194 So.3d 898, 2016 Miss. App. LEXIS 432 (Miss. Ct. App. 2016).

Circuit court erred in granting a corporation and its president summary judgment based on its finding that the six-year statute of limitations had expired because an administrator presented sufficient evidence to establish the presence of a genuine issue of material fact as to whether the fraudulent concealment of escrow funds and the administrator’s due diligence to discover that fraud tolled the six-year statute of limitations . Neyland v. Timberland Mgmt. Servs., 167 So.3d 1272, 2014 Miss. App. LEXIS 614 (Miss. Ct. App. 2014), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 360 (Miss. 2015).

Since the homeowners’ claims against an insurance agent were time-barred pursuant to Miss. Code Ann. §15-1-49 and the homeowners had not shown that they were not entitled to the benefits of tolling under Miss. Code Ann. §15-1-67, the insurance agent was fraudulently joined since the homeowners had no possibility of recovery against the agent; the homeowners’ motion to remand the case was denied. Mendrop v. Shelter Mut. Ins. Co., 2006 U.S. Dist. LEXIS 54783 (N.D. Miss. Aug. 4, 2006).

Consumers’ fraud action against lenders in their sale of credit insurance with consumer loans was barred by the three-year limitations period of Miss. Code Ann. §15-1-49, and consumers failed to show evidence of an affirmative act of fraudulent concealment after the initial insurance sale, as required under Miss. Code Ann. §15-1-67, in order to toll the limitations period. Liddell v. First Family Fin. Servs., 146 Fed. Appx. 748, 2005 U.S. App. LEXIS 18411 (5th Cir. Miss. 2005).

In borrowers’ suit against lenders, insurers, and individuals, arising from loan transactions, removal was appropriate based upon diversity of citizenship because the individuals were fraudulently joined; the claims against the individuals were time-barred and the borrowers presented no evidence of affirmative acts of concealment by defendants for tolling the statute of limitations. Owens v. First Family Fin. Servs., 2003 U.S. Dist. LEXIS 25345 (S.D. Miss. May 29, 2003).

The statute of limitation was tolled with regard to an action arising from an oral agreement in a multimillion dollar oil and gas transaction since the defendant fraudulently concealed the truth regarding the agreement by making numerous false representations and swearing to them under oath. Allred v. Fairchild, 785 So. 2d 1064, 2001 Miss. LEXIS 143 (Miss. 2001).

Evidence, in action for double indemnity commenced more than eleven years after payment of benefit for natural death, held insufficient to justify judgment against insurer on ground of concealed fraud. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

In absence of proof of concealed fraud on part of insurer which would toll statute of limitations until discovery of true facts, action held barred by six-year statute. New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109, 1938 Miss. LEXIS 197 (Miss. 1938).

In suit by purchaser for false representations as to acreage of tract sold, evidence failed to establish that vendor fraudulently concealed false representations after sale, and hence suit begun more than seven years after sale was barred. Dunn v. Dent, 169 Miss. 574, 153 So. 798, 1934 Miss. LEXIS 73 (Miss. 1934).

Evidence held to show that factor charging principal brokerage charges on lumber sold, but not showing them on statements rendered, except in one instance, when it was explained as “demurrage,” which means delay, concealed cause of action for overcharges until shortly before bill was filed. D. S. Pate Lumber Co. v. Weathers, 167 Miss. 228, 146 So. 433, 1933 Miss. LEXIS 86 (Miss. 1933).

8. Pleading.

Plaintiff did not elaborate as to how or when he was able to discover that defendant had manufactured the bed in question, and thus there was insufficient information to conclude that anyone had concealed that fact, plus plaintiff offered no explanation as to why he could not sue defendant based on the information that was available; it was within the circuit court’s discretion to deny plaintiff’s request to amend his complaint, as he did not show that the statute of limitations was tolled due to fraudulent concealment, and his complaint was filed two years beyond the statute. Patel v. Hill-Rom Co., 194 So.3d 898, 2016 Miss. App. LEXIS 432 (Miss. Ct. App. 2016).

In a case in which five car buyers brought their state law claims against an auto financier more than six years after their financing transactions, those claims were untimely. The claims were subject to the three-year limitations period in Miss. Code Ann. §15-1-49(1), and the buyers could not toll the limitations period by using Miss. Code Ann. §15-1-67 because they simply failed to allege a subsequent act of concealment separate from the alleged fraud underlying the cause of action. Archer v. Nissan Motor Acceptance Corp., 550 F.3d 506, 2008 U.S. App. LEXIS 25292 (5th Cir. Miss. 2008).

In a discriminatory lending suit filed by African American loan recipients against an auto financing corporation, the loan recipients’ state law deceptive trade practices and common law claims were barred by the three-year statute of limitations in Miss. Code Ann. §15-1-49(1), which was not tolled by the fraudulent concealment rule codified in Miss. Code Ann. §15-1-67 because the loan recipients admitted that they knew the interest rates were high at the time they signed the loan documents, which clearly displayed the rates being charged. Archer v. Nissan Motor Acceptance Corp., 633 F. Supp. 2d 259, 2007 U.S. Dist. LEXIS 65570 (S.D. Miss. 2007), aff'd, 550 F.3d 506, 2008 U.S. App. LEXIS 25292 (5th Cir. Miss. 2008).

Child was killed by a water heater’s explosion; while minimal, the mother’s and sister’s pleadings in a wrongful death action were factually particular enough to allege fraudulent concealment and to satisfy Miss. R. Civ. P. 9(b), and the circuit court’s decision to deny a motion to dismiss was not an abuse of discretion. State Indus. v. Hodges, 919 So. 2d 943, 2006 Miss. LEXIS 17 (Miss. 2006).

Homeowners’ predatory lending practices claims were time barred under Miss. Code Ann. §15-1-49(1) because their respective transactions occurred well over the three years before the suit was brought and the homeowners failed to show any affirmative act of fraudulent concealment under Miss. Code Ann. §15-1-67 to toll the statute of limitations. Carson v. McNeal, 375 F. Supp. 2d 509, 2005 U.S. Dist. LEXIS 13166 (S.D. Miss. 2005).

Insureds’ fraud and misrepresentation claims arising out of the purchase of life insurance were dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) because the action was barred by the statute of limitations, Miss. Code Ann. §15-1-49, since the insureds did not allege that defendants engaged in any affirmative act or conduct that prevented the insureds from discovering their claims, which would have invoked the tolling provisions of the fraudulent concealment statute, Miss. Code Ann. §15-1-67. O'Bannon v. Guardian Life Ins. Co. of Am., 331 F. Supp. 2d 476, 2004 U.S. Dist. LEXIS 24314 (S.D. Miss. 2004).

Federal district court refused to remand a suit alleging fraud in connection with sales of credit insurance, finding that claims brought by a number of borrowers against nondiverse employees of a lender were time barred, as (1) the limitations period was not tolled under Miss. Code Ann. §15-1-67 due to fraudulent concealment absent a fiduciary relationship between the employees and the borrowers and (2) the borrowers did not act with due diligence as required under §15-1-67, as the borrowers’ loan documents disclosed all of the information concerning credit insurance that allegedly was misrepresented or concealed. Anderson v. City Fin. Co., 2003 U.S. Dist. LEXIS 25226 (S.D. Miss. July 11, 2003).

Insurance purchasers sufficiently alleged in their complaint that an insurance agent engaged in affirmative acts of concealment that prevented the purchasers from discovering their cause of action until the limitations had expired; however, the purchasers alleged specific facts that, if proven, made it reasonably possible for a state court to toll the statute of limitations period. Reed v. Am. Gen. Life & Accident Ins. Co., 192 F. Supp. 2d 641, 2002 U.S. Dist. LEXIS 11405 (N.D. Miss. 2002).

Party averring concealed fraud must prove facts justifying his claim. Gordon v. Anderson, 90 Miss. 677, 44 So. 67, 1907 Miss. LEXIS 109 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action. 15 A.L.R.2d 500.

When statute of limitations or laches commences to run against action to set aside conveyance or transfer in fraud of creditors. 100 A.L.R.2d 1094.

Fraud, misrepresentation, or deception as estopping reliance on statute of limitations. 43 A.L.R.3d 429.

Fiduciary or confidential relationship as affecting estoppel to plead statute of limitations. 45 A.L.R.3d 630.

When statute of limitations commences to run on action under state deceptive trade practice or consumer protection acts. 18 A.L.R.4th 1340.

Fraud as extending statutory limitations period for contesting will or its probate. 48 A.L.R.4th 1094.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations. 88 A.L.R.4th 851.

Modern status of the application of “discovery rule” to postpone running of limitations against actions relating to breach of building and construction contracts. 33 A.L.R.5th 1.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Attorney Malpractice – Tolling or Other Exceptions to Running of Statute of Limitations. 87 A.L.R.5th 473.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 158 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 240, 241.

Cross References —

Other actions having one year statute of limitations, see §§15-1-33,15-1-35.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Defeat of action in general.

4. —Matter of form.

5. —Reversal of judgment.

6. Action improperly dismissed.

7. Standing.

1. In general.

In a medical malpractice case in which the first action filed by the survivors and heirs of the deceased was clearly filed within the two-year statute of limitations found in Miss. Code Ann. §15-1-36(2), but was dismissed pursuant to Miss. Code Ann. §15-1-36(15) because they had not provided the required notice to the hospital and the healthcare provider prior to filing and the hospital and the healthcare provider filed a motion for summary judgment to dismiss the second medical malpractice suit as untimely, the Saving Statute, Miss. Code Ann. §15-1-69, applied to the second filing, and it was not untimely. The first case had been duly commenced. Herrington v. Promise Specialty Hosp., 665 F. Supp. 2d 708, 2009 U.S. Dist. LEXIS 90509 (S.D. Miss. 2009).

Savings statute, Miss. Code Ann. §15-1-69, is designed as remedial legislation intended to protect the good-faith efforts of plaintiffs who make a simple mistake; the statute is not designed to penalize plaintiffs and bar the continuation of an ongoing suit because the drafters of the law surely did not intend that a suit automatically abate or be dismissed upon the death of a party. Harris v. Darby, 17 So.3d 1076, 2009 Miss. LEXIS 447 (Miss. 2009).

Trial court erred in granting a doctor and a medical practice summary judgment in an executrix’s medical malpractice action on the ground that the executrix’s motion to substitute parties pursuant to Miss. R. Civ. P. 25 was barred by Miss. Code Ann. §15-1-69 because §15-1-69 was inapplicable when the action was never abated or dismissed in any manner; had the trial court dismissed the case without prejudice, the savings statute would have applied, and the executrix would have had a full year from that dismissal to re-file the suit, but since the trial court granted summary judgment, it did not trigger the statute. Harris v. Darby, 17 So.3d 1076, 2009 Miss. LEXIS 447 (Miss. 2009).

Where a plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which he can remedy or avoid by a new process, the statute of limitations shall not prevent him from doing so, provided he follows it promptly, by suit within a year; Mississippi’s savings statute is highly remedial, and it ought to be liberally construed. However, the plaintiff must have exercised good faith in filing the first action in the wrong court. Estate of Boles v. Nat'l Heritage Realty, Inc., 2009 U.S. Dist. LEXIS 55825 (N.D. Miss. June 23, 2009).

Although an appellate court rendered void ab initio a wrongful death action because the administratrix lacked standing to file a wrongful death action as a result of the chancery court’s lack of subject matter jurisdiction over the estate, regardless of whether the estate’s first complaint tolled the statute of limitations, the savings statute applied to save the cause of action, and Tolliver did not address the application of the savings statute. The savings statute saved the otherwise time-barred cause of action. Estate of Boles v. Nat'l Heritage Realty, Inc., 2009 U.S. Dist. LEXIS 55825 (N.D. Miss. June 23, 2009).

Pursuant to Miss. Code Ann. §11-46-11 of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to11-46-23, and Miss. Code Ann. §15-1-1, Miss. Code Ann. §15-1-69 did not apply to the MTCA, and it is worth noting that non-tort claims act cases are not controlling as to the applicability of §15-1-69, and because the MTCA has a one-year statute of limitation that is significantly shorter than the catchall three-year statute of limitation, the one-year statute of limitation found in Miss. Code Ann. §11-46-11 is controlling; thus, the court rejected the parents’ claim that Miss. Code Ann. § 15-1-69 applied to the MTCA to toll the statute of limitation under Miss. Code Ann. §11-46-11. Stockstill v. State, 854 So. 2d 1017, 2003 Miss. LEXIS 449 (Miss. 2003).

This section did not apply to an action originally filed in federal court since the plaintiff did not erroneously file the action in good faith where he had moved to another state in an attempt to establish diversity jurisdiction and without a good faith intent to establish residence. Wertz v. Ingalls Shipbuilding, Inc., 790 So. 2d 841, 2000 Miss. App. LEXIS 548 (Miss. Ct. App. 2000).

This section does not extend to suits filed within the permitted one-year grace period after the same cause of action has been dismissed in a court of another state. S & H Grocery, Inc. v. Gilbert Constr. Co., 733 So. 2d 851, 1998 Miss. App. LEXIS 1136 (Miss. Ct. App. 1998).

The “savings” provision of the statute does not apply to suits within the permitted one-year grace period after the same cause of action has been dismissed in a court of another state. S & H Grocery, Inc. v. Gilbert Constr. Co., 724 So. 2d 965, 1998 Miss. App. LEXIS 1016 (Miss. Ct. App. 1998).

On account of all expired time in particular case, plaintiffs could not avail selves of protection afforded by §15-1-69. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

This section is applicable to orders dismissing suits for lack of jurisdiction, and thus operated to save a personal injury action which was dismissed for lack of jurisdiction and refiled a few days beyond six years after plaintiff had reached majority, but within one year from the date of dismissal. Ryan v. Wardlaw, 382 So. 2d 1078, 1980 Miss. LEXIS 1970 (Miss. 1980).

This section [Code 1942, § 744] does not apply where the former action was instituted in another state. C & L Rural Electric Co-op. Corp. v. Kincade, 175 F. Supp. 223, 1959 U.S. Dist. LEXIS 2934 (D. Miss. 1959), aff'd, 276 F.2d 929, 1960 U.S. App. LEXIS 4898 (5th Cir. Miss. 1960).

This section [Code 1942, § 744] does not extend time prescribed for institution of suit under Louisiana compensation laws. Dunn Const. Co. v. Bourne, 172 Miss. 620, 159 So. 841, 1935 Miss. LEXIS 130 (Miss. 1935).

Good faith in the institution of the action dismissed is an element in determining the right to invoke this section [Code 1942, § 744]. Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 1915 Miss. LEXIS 10 (Miss. 1915).

The section [Code 1942, § 744] applies to suits in equity as well as law. Weathersly v. Weathersly, 31 Miss. 662, 1856 Miss. LEXIS 138 (Miss. 1856).

The right given is to the parties to the first suit, and not to different parties. Ross, Strong & Co. v. Sims, 27 Miss. 359, 1854 Miss. LEXIS 57 (Miss. 1854).

The section [Code 1942, § 744] does not abridge the time of limitation, but enlarges it. A second suit may be brought after the expiration of the year if the general statutes do not bar. Lang v. Fatheree, 15 Miss. 404, 1846 Miss. LEXIS 166 (Miss. 1846).

2. Applicability.

Savings statute did not apply because a prior complaint was dismissed without prejudice for want of prosecution. Brown-Howle v. Cmty. Bank, — So.3d —, 2018 Miss. App. LEXIS 527 (Miss. Ct. App. Oct. 23, 2018).

Savings statute was not applicable to the order granting the manufacturer’s motion to dismiss, as the patient filed the second amended complaint without leave of court or permission from defendants. Meeks v. Hologic, Inc., 179 So.3d 1127, 2015 Miss. LEXIS 610 (Miss. 2015).

Because the wife met every requirement in Miss. Code Ann. §93-5-31 to have a divorce revoked, the appellate court erred in reversing the chancery court’s revocation of the parties’ divorce; in part, there was sufficient evidence of reconciliation and no statutory reference was made to the death of one of the parties. Because the action was not abated upon husband’s death, Miss. Code Ann. §15-1-69 was inapplicable. Carlisle v. Allen, 40 So.3d 1252, 2010 Miss. LEXIS 391 (Miss. 2010).

Defendants argued that there was substantial ground for difference of opinion as courts in other jurisdictions have come to contrary conclusions as to the application of their own states’ savings statutes in similar circumstances; however, it was of no consequence to the case that Missouri, Kansas, Utah, Colorado, or any other state would choose not to apply its own savings statute in the circumstances. The issue was whether Mississippi would apply its savings statute, and defendants did not present any evidence that there was substantial ground for a difference of opinion as to that issue. Estate of Boles v. Nat'l Heritage Realty, Inc., 2009 U.S. Dist. LEXIS 55825 (N.D. Miss. June 23, 2009).

3. Defeat of action in general.

Although a second amended malpractice action could be filed under the savings statute, Miss. Code Ann. §15-1-69 since a letter did not substantially comply with the notice provisions of Miss. Code Ann. §15-1-36(15), the 60 day tolling period was not triggered, the statute of limitations had run, and the action should have been dismissed with prejudice. Arceo v. Tolliver, 19 So.3d 67, 2009 Miss. LEXIS 393 (Miss. 2009).

While the wrongful death beneficiaries’ first lawsuit against a railway in federal court when their relative was killed in a railroad crossing accident was timely commenced, and the instant state action was for the same cause of action, dismissal of their state action was proper as their voluntary dismissal of the first federal lawsuit without prejudice did not fall within the protection of Miss. Code Ann. §15-1-69; a voluntary withdrawal did not constitute the “accidental” or “inadvertent” failure of an action, nor were the beneficiaries “defeated” within the meaning of the savings statute when they were nonsuited upon their own request. Marshall v. Kan. City Southern Ry., 7 So.3d 265, 2007 Miss. App. LEXIS 752 (Miss. Ct. App. 2007), rev'd, 7 So.3d 210, 2009 Miss. LEXIS 106 (Miss. 2009).

In November 1997, plaintiff brought suit for wrongful death, but the record reflected that she failed to properly serve process upon defendant within 120 days. Because process was not served within the 120-day period as provided by Miss. R. Civ. P. 4(h), the running of the statute of limitations resumed; further, the statute of limitations ran in March, 2000, some 14 months prior to defendant’s motion to dismiss and some 19 months prior to plaintiff’s filing of a second identical wrongful death action, and therefore, when plaintiff filed her second action, the three year statute of limitation set forth in Miss. Code Ann. §15-1-49 had run. Owens v. Mai, 891 So. 2d 220, 2005 Miss. LEXIS 18 (Miss. 2005).

Trial court erred in denying a summary judgment motion filed by a casino and its employee against the malicious prosecution claim filed by certain individuals. The individuals’ first claim against the casino was dismissed for want of prosecution, and the savings clause in Miss. Code Ann. §15-1-69 did not prevent the second claim, which was based on the same facts, from being barred by the statute of limitation in Miss. Code Ann. §15-1-35. Jackpot Miss. Riverboat, Inc. v. Smith, 874 So. 2d 959, 2004 Miss. LEXIS 641 (Miss. 2004), overruled in part, Knight v. Knight, 85 So.3d 832, 2012 Miss. LEXIS 24 (Miss. 2012).

Code 1942, § 744 allowing one to bring an action within one year after a previous action has been defeated for reasons other than upon the merits did not apply to that portion of the plaintiff’s suit which was founded on a cause of action created by Code 1942, § 1075, and therefore that portion of the suit which was founded on § 1075, and brought more than three years after the alleged destruction of trees, although within one year after defeat of the action for a reason other than upon its merits, was barred by the one-year period of limitations contained in Code 1942, § 1087. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

An action by a Mississippi employee injured while working in another state for compensation under the workmen’s compensation act of such other state, in which the time for making a claim is not a condition attached to the right, is not barred where brought in a Federal court in Mississippi within one year after the dismissal for lack of jurisdiction of a suit for compensation for the aggravation by the injury of the condition caused by a former injury. Pulliam v. Gulf Lumber Co., 312 F.2d 505, 1963 U.S. App. LEXIS 6406 (5th Cir. Miss. 1963).

Order dismissing suit begun before bar of limitations, with nothing indicating it was near abatement, or that dismissal was for any matter of form, held not to bring the case within this section [Code 1942, § 744].W. W. T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8, 1926 Miss. LEXIS 298 (Miss. 1926).

Evidence not disclosing cause of former action held not to bring it within provisions of statute as to commencing new action for same cause as one abated, or in which judgment was reversed on appeal. Cossar v. Grenada Oil Mill, 138 Miss. 890, 103 So. 509, 1925 Miss. LEXIS 92 (Miss. 1925).

Where suit is brought after the expiration of the time designated in a fire insurance policy within which suits must be brought, the suit is barred, notwithstanding a previous suit, which was dismissed, had been brought within that time, since this section [Code 1942, § 744] has no application to a contract which fixes its own period of limitation as to time within which a suit may be brought. Ward v. Pennsylvania Fire Ins. Co., 82 Miss. 124, 33 So. 841 (Miss. 1903).

Where upon the trial of a suit, the court found that the plaintiff did not have the legal title to the claim sued on when the action was commenced, the action was not defeated for any matter of form so as to bring the case within Code of 1871, § 2163, a former enactment of this provision. Meath v. Board of Mississippi Levee Comm'rs, 109 U.S. 268, 3 S. Ct. 284, 27 L. Ed. 930, 1883 U.S. LEXIS 970 (U.S. 1883).

A suit dismissed for want of security for costs is not within the section [Code 1942, § 744]. Memphis & C. R. Co. v. Orr, 52 Miss. 541, 1876 Miss. LEXIS 253 (Miss. 1876).

4. —Matter of form.

Mississippi Supreme Court’s analysis as to whether a dismissal is for a matter of form focuses on the content or substance of the record to determine the purpose or reason for the dismissal; within the context of the savings statute, avoidance or defeat for lack of subject matter jurisdiction is avoidance or defeat for a matter of form. Furthermore, standing is an aspect of subject matter jurisdiction. Estate of Boles v. Nat'l Heritage Realty, Inc., 2009 U.S. Dist. LEXIS 55825 (N.D. Miss. June 23, 2009).

Wrongful death case was not time barred under Miss. Code Ann. §15-1-49 because the savings provision in Miss. Code Ann. §15-1-69 applied since a voluntary dismissal without prejudice in federal court was considered a matter of form where it was based on subject matter jurisdiction. Several beneficiaries continually and in good faith sought to have the merits of their case heard in Mississippi state court, they sought a Fed. R. Civ. P. 54(b) certified judgment to challenge a federal district court’s subject matter jurisdiction, and they timely refiled their second cause of action within one year of the dismissal of the first case. Marshall v. Kan. City S. Rys., 7 So.3d 210, 2009 Miss. LEXIS 106 (Miss. 2009).

Trial court’s dismissal of an action for failure to serve process as required by Miss. R. Civ. P. 4 is not a “matter of form” for purposes of the savings statute, Miss. Code Ann. §15-1-69. Additionally, if service of process is not made upon a defendant in compliance with Miss. R. Civ. P. 4(h), the limitations period beings to run again at the end of 120 days. Owens v. Mai, 891 So. 2d 220, 2005 Miss. LEXIS 18 (Miss. 2005).

Statute of limitations applicable to action founded on judgment or decree (§15-1-43) is tolled when suit to renew decree is filed, but commences to run again when suit to renew is dismissed as stale under §11-53-25; dismissal of stale case is not dismissal for matter of form to which statute of limitations applicable to commencement of new action subsequent to abatement or defeat of original action (§15-1-69) would apply. Deposit Guaranty Nat'l Bank v. Roberts, 483 So. 2d 348, 1986 Miss. LEXIS 2396 (Miss. 1986).

Dismissal of suit for lack of jurisdiction was a matter of form and the plaintiff was entitled to one year thereafter under this section [Code 1942, § 744] within which to file a second suit. Lowry v. International Brotherhood of Boilermakers, etc., 220 F.2d 546, 1955 U.S. App. LEXIS 4494 (5th Cir. Miss. 1955).

Dismissal of suit filed in Federal court within limitation period for lack of jurisdiction is a dismissal for matter of form within this section, hence suit filed within month of dismissal of suit in Federal court is within one year saving provision. Frederick Smith Enterprise Co. v. Lucas, 204 Miss. 43, 36 So. 2d 812, 1948 Miss. LEXIS 341 (Miss. 1948).

Dismissal of a suit in equity because of want of jurisdiction of the subject matter resulting from joinder of independent causes of action is a dismissal for matter of form within the purview of this section [Code 1942, § 744]. Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 1915 Miss. LEXIS 10 (Miss. 1915).

Amended declaration not barred where original filed in time. Yazoo & M. V. R. Co. v. Rivers, 93 Miss. 557, 46 So. 705, 1908 Miss. LEXIS 103 (Miss. 1908).

Where a bill by a ward to review a partition of land, and also to surcharge her guardian’s accounts, is, because of multifariousness, dismissed without prejudice as to the partition, relief being given as to the accounts, the dismissal is for “a matter of form,” and a new bill of review may be filed within one year thereafter. Young v. Walker, 70 Miss. 813, 12 So. 546, 1893 Miss. LEXIS 1 (Miss. 1893).

5. —Reversal of judgment.

The section [Code 1942, § 744] does not apply where the judgment in favor of plaintiff is reversed, and the Supreme Court re-establishes a verdict for the defendant and dismisses the suit. Wilkes v. Coopwood, 39 Miss. 348, 1860 Miss. LEXIS 55 (Miss. 1860).

6. Action improperly dismissed.

Chancery court properly ruled that a teacher’s claim for relief was barred by the statute of limitations because she failed to refile her complaint in chancery court until she again alleged a breach of contract and sexual discrimination as an original complaint; since the teacher failed to properly perfect an appeal of the school district’s decision affirming her termination and to obtain federal ancillary jurisdiction over her state-law claim, no tolling of the statute of limitations occurred. Lacour v. Claiborne County Sch. Dist., 119 So.3d 1128, 2013 Miss. App. LEXIS 481 (Miss. Ct. App. 2013).

In a case in which plaintiff filed a petition to perpetuate testimony in a circuit court, the matter was then removed to federal court, wherein plaintiff sought dismissal, and plaintiff filed a complaint in the circuit court raising the same claims against the same parties before the federal court had dismissed the matter, the circuit court erred in dismissing plaintiff’s post-dismissal complaint because the record supported a finding that the federal court’s dismissal was based upon a “matter of form” not affecting the merits–namely, a lack of jurisdiction due to the absence of a complaint–as its order stated that no “civil action” yet existed. Plaintiff had inadvertently found himself in a procedural quagmire, but he made a good-faith effort to preserve his claim, at no time envincing an intent to abandon his claim, and, accordingly, application of the savings statute, Miss. Code Ann. §15-1-69, to his post-dismissal complaint was appropriate and consistent with the purposes of the statute because he filed the complaint within one year of the federal court’s dismissal. Crawford v. Morris Transp., Inc., 990 So. 2d 162, 2008 Miss. LEXIS 421 (Miss. 2008).

Dismissal of the wife’s second wrongful death suit for death of the deceased, her husband, based on the owner of the mobile park’s employment and negligent supervision of an employee who stabbed and killed the deceased was improper under the Mississippi savings statute, Miss. Code Ann. §15-1-69, because the wife’s suit should not be lost for a matter not affecting the merits of the case when the fault could be remedied merely by new process being issued. Owens v. Mai, 881 So. 2d 278, 2003 Miss. App. LEXIS 1090 (Miss. Ct. App. 2003), rev'd, 891 So. 2d 220, 2005 Miss. LEXIS 18 (Miss. 2005).

7. Standing.

In a wrongful death case in which a circuit court found that the deceased’s girlfriend, who was also his personal representative, had standing to bring the case and a sand company filed an interlocutory appeal of the circuit court’s denial of its motion for summary judgment, since, at the time she filed the suit, the girlfriend had not yet been formally appointed executrix of the deceased’s estate, she did not have standing as his personal representative to bring the present action at that time. The personal representative also lacked standing as the deceased’s executrix under the savings statute. Clark Sand Co. v. Kelly, 2010 Miss. LEXIS 94 (Miss. Feb. 25, 2010), op. withdrawn, sub. op., 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

RESEARCH REFERENCES

ALR.

Estoppel to rely on statute of limitations. 24 A.L.R.2d 1413.

Successive actions as within statutory provision fixing time within which new action may be commenced after nonsuit or judgment not on merits. 54 A.L.R.2d 1229.

Statute permitting new action, after failure of original action timely commenced, as applicable where original action was filed in another state. 55 A.L.R.2d 1038.

Determination of beginning of period allowed by statute for commencement of new action after failure, otherwise than on merits, of action timely begun. 79 A.L.R.2d 1270.

Voluntary dismissal or nonsuit as within provision of statute extending time for new action in case of dismissal or failure of original action otherwise than upon merits. 79 A.L.R.2d 1290.

Character or kind of action or proceeding within operation of statute permitting new action after expiration of period of limitation, upon failure of previous action commenced within the period. 79 A.L.R.2d 1309.

Character or kind of action or proceeding within statute permitting new action after limitation period, upon failure of timely action. 79 A.L.R.2d 1309.

Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction. 6 A.L.R.3d 1043.

Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits. 13 A.L.R.3d 848.

Effect of statute permitting new action to be brought within specified period after failure of original action other than on the merits to limit period of limitations. 13 A.L.R.3d 979.

Application to period of limitations fixed by contract, of statute permitting new action to be brought within specified time after failure of prior action for cause other than on the merits. 16 A.L.R.3d 452.

Tolling or interruption of running of statute of limitations pending appointment of executor or administrator for tortfeasor in personal injury or death action. 47 A.L.R.3d 179.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 251 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 287, 288 et seq.

JUDICIAL DECISIONS

1. In general.

Where the defendant held his several items of setoff against the debt sued on by the plaintiff before they were barred by the statutes of limitation, the fact that the defendant’s items of setoff may have been barred by the statute of limitation at the time the plea of setoff was filed did not preclude the defendant from using the items as a setoff against the debt sued on. Gerald v. Foster, 251 Miss. 63, 168 So. 2d 518, 1964 Miss. LEXIS 329 (Miss. 1964).

A setoff barred may be used defensively, but it cannot be the basis of a judgment against plaintiff for any excess. Feld v. Coleman, 72 Miss. 545, 17 So. 378, 1895 Miss. LEXIS 15 (Miss. 1895).

RESEARCH REFERENCES

ALR.

Claim barred by limitations as subject of setoff, counterclaim, recoupment, or cross bill. 1 A.L.R.2d 630.

Right of illegitimate to take under testamentary gift to “heirs”. 27 A.L.R.2d 1232.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 100-102.

CJS.

54 C.J.S., Limitations of Actions §§ 53, 54.

Cross References —

Consideration for new promise founded in formal legal obligation, see §15-1-3.

Contracts required to be in writing, see §§15-3-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Acknowledgment or new promise in general.

3. Sufficiency of acknowledgment or new promise.

4. Certainty and definiteness.

5. Evidence.

6. Pleading.

1. In general.

When a writing or memorandum is lost or destroyed, both its existence and contents may be proven by parol evidence; the loss or destruction of a memorandum does not deprive it of effect under the Statute of Frauds. Thus, §15-1-29, §15-1-73 and the Statute of Frauds (§15-3-1) did not bar an action to enforce a loan agreement which was allegedly destroyed in a fire where the plaintiff sufficiently proved the existence and contents of the destroyed memorandum. Williams v. Evans, 547 So. 2d 54, 1989 Miss. LEXIS 335 (Miss. 1989).

A judgment is not a contract, and is not embraced in the terms of this section [Code 1942, § 748]. Berkson v. Cox, 73 Miss. 339, 18 So. 934, 1895 Miss. LEXIS 120 (Miss. 1895).

2. Acknowledgment or new promise in general.

Statute of limitations, applicable to all but two items on debit and credit open account, was not tolled by partial payment on the account where there was no written acknowledgment of indebtedness or promise to pay by the debtor. McArthur v. Acme Mechanical Contractors, Inc., 336 So. 2d 1306, 1976 Miss. LEXIS 1552 (Miss. 1976).

Contract between corporation and holder of notes and salary claims against it whereby notes were to be held in escrow for two years to abide payment of a new note given by the corporation to such creditor, payment of which would liquidate the original claims but if the lieu note was not paid at maturity, the original notes would be redelivered and the entire account made current, constituted an acknowledgment in writing of the debt removing the claims from the bar of the respective statutes of limitation. Dyer v. Lowe, 201 Miss. 516, 29 So. 2d 324, 1947 Miss. LEXIS 413 (Miss. 1947).

Even though partial payment on a note executed and delivered in Alabama might operate in substance as a new promise under the Alabama law, the Mississippi statute relating to the remedy would be applicable in case of an attempt to enforce the obligation in Mississippi, and therefore such payments in Alabama would not toll the running of the limitation period, in view of a statutory provision that in actions founded upon contracts the case would not be taken out of the operation of the limitation statute, unless an acknowledgment or promise of the indebtedness should be made in writing signed by the party chargeable therewith. Montgomery v. Yarbrough, 192 Miss. 667, 6 So. 2d 925 (Miss. 1942).

The verbal acknowledgment of an account’s correctness, making it an account stated, will not avoid the statute applicable to open accounts. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938); Floyd v. Pearce, 57 Miss. 140, 1879 Miss. LEXIS 33 (Miss. 1879).

Counterproposal altering original agreement, which is accepted, constitutes new written contract and 6-year statute will be applied accordingly. Edward Thompson Co. v. Foy, 115 Miss. 848, 76 So. 685, 1917 Miss. LEXIS 268 (Miss. 1917).

3. Sufficiency of acknowledgment or new promise.

Buyer’s letter to the seller admitting that its account was overdue and promising to pay the open account on a specific date was sufficiently definite and unequivocal to toll the statute of limitations under Miss. Code Ann. §15-1-73 in the seller’s action to collect the money owed. Harrison Enters. v. Trilogy Communs., Inc., 818 So. 2d 1088, 2002 Miss. LEXIS 36 (Miss. 2002).

The fact that the maker of a promissory note in the original amount of $6,600 made a partial payment of $100 more than six years after the date it became due and payable and at approximately the same time stated in a telephone conversation with an employee of the payee that he acknowledged the indebtedness and promised to make future payments until the entire balance of the indebtedness was canceled was insufficient, in view of the provisions of this section, to toll the statute of limitations. United States Fidelity & Guaranty Co. v. Krebs, 190 So. 2d 857, 1966 Miss. LEXIS 1405 (Miss. 1966).

Chattel deed of trust expressly acknowledging secured indebtedness evidenced by note for exact amount of note secured by prior trust deed held sufficient acknowledgment of indebtedness secured by prior trust deed to toll statute of limitations where original note was identified as being included in indebtedness acknowledged. Richter Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393, 1936 Miss. LEXIS 26 (Miss. 1936).

Letter from debtor stating he thought note had been paid, and continuing “but as I noted that the note. . . had not been stamped with any cancellation stamp, the same certainly must be unpaid,” and offering to settle for lump sum, held not sufficient to remove bar of statute. Philp v. Hicks, 112 Miss. 581, 73 So. 610, 1916 Miss. LEXIS 150 (Miss. 1916).

Deed of conveyance providing as consideration that grantee is to credit grantor’s indebtedness with a certain sum and that such conveyance is not to impair the lien of a clearly identified deed of trust for balance due grantee is a sufficient written acknowledgment of amount secured by deed of trust. Stewart v. Forman, 90 Miss. 85, 43 So. 67, 1907 Miss. LEXIS 37 (Miss. 1907).

An acknowledgment signed by a debtor in these words “I hereby acknowledge that the above balance, $230, is correct,” is sufficient. Tennessee Brewing Co. v. Hendricks, 77 Miss. 491, 27 So. 526, 1899 Miss. LEXIS 75 (Miss. 1899).

An acknowledgment in writing to a managing partner of a debt to him is a sufficient acknowledgment of a debt to his firm, if the debt be shown to be a partnership debt. Yarbrough v. Gilland, 77 Miss. 139, 24 So. 170, 1899 Miss. LEXIS 34 (Miss. 1899).

The following writing was held sufficient, viz: “Credit this on my note in the county treasury. I will be down soon to pay the balance.” Written by a debtor of the county to the treasurer. Heflin v. Kinard, 67 Miss. 522, 7 So. 493, 1890 Miss. LEXIS 106 (Miss. 1890).

The following writing was held sufficient, viz: “I hereby waive the statute of limitations as to the within note and the deed of trust to secure the same;” indorsed on the back of the note. Bowmar v. Peine, 64 Miss. 99, 8 So. 166, 1886 Miss. LEXIS 22 (Miss. 1886).

The following writing was held insufficient, viz: “After hands are paid, appropriate balance due on my account to yourself. I would like to come there and do your work, so I could pay you what I owe you.” Fletcher v. Gillan, 62 Miss. 8, 1884 Miss. LEXIS 3 (Miss. 1884).

The following writing was held insufficient, viz: “I wrote to Mr. M. about the 1st inst. to know how I should send the money, and have not heard from him. I am going to Aberdeen tomorrow and will send fifty dollars, which is all I can spare at present.” Eckford v. Evans, 56 Miss. 18, 1878 Miss. LEXIS 34 (Miss. 1878).

The following writing was held insufficient, viz: “It will suit may convenience to execute my note for the balance due for rent, payable July 1, 1877.” Trustees of Canton Female Academy v. Gilman, 55 Miss. 148, 1877 Miss. LEXIS 118 (Miss. 1877).

The following writing was held sufficient, viz: “We do hereby agree and promise to renew the note for which this mortgage is given, and to give a new mortgage whenever the exact amount due upon said note is ascertained;” indorsed on the back of the mortgage. Hart v. Boyt, 54 Miss. 547, 1877 Miss. LEXIS 48 (Miss. 1877).

An acknowledgment is sufficient, though the writing does not embody an express promise; and an acknowledgment and an agreement to waive the limitation will revive the debt previously barred. Beasley v. Evans, 35 Miss. 192, 1858 Miss. LEXIS 25 (Miss. 1858).

The indorsement of a credit on a note, though signed by both parties, is not a sufficient acknowledgment of the balance. Davidson v. Harrisson, 33 Miss. 41, 1857 Miss. LEXIS 6 (Miss. 1857).

4. Certainty and definiteness.

Acknowledgment or promise that will save bar of statute must identify debt and acknowledge or promise to pay a definite amount, unless amount can be ascertained by calculation from a written instrument. Taylor v. Desoto Lumber Co., 137 Miss. 829, 102 So. 260, 1924 Miss. LEXIS 219 (Miss. 1924).

Debtor’s statement in response to creditor’s statement of account that he was enclosing a check for one thousand dollars, part payment on account, and that he would take care of the balance a little later, held not acknowledgment or promise such as would save bar of statute. Taylor v. Desoto Lumber Co., 137 Miss. 829, 102 So. 260, 1924 Miss. LEXIS 219 (Miss. 1924).

Letters not written to serve as an acknowledgment or promise in order to prevent the bar of the statute, and not precise and definite as to debt and amount, although they show an acknowledgment of an indebtedness, do not take the case out of the operation of the provisions of this chapter. Allen v. Hillman, 69 Miss. 225, 13 So. 871, 1891 Miss. LEXIS 174 (Miss. 1891).

The new promise need not express the exact amount due, but must specify the particular debt, admit its justice, and indicate an intention to pay it; but the expression of an intent to pay is not necessary if the justice of the debt be admitted without reservation. Hart v. Boyt, 54 Miss. 547, 1877 Miss. LEXIS 48 (Miss. 1877).

An acknowledgment of an indefinite balance will not save the bar as to any amount whatever. Mask v. Philler, 32 Miss. 237, 1856 Miss. LEXIS 185 (Miss. 1856).

5. Evidence.

Parol evidence is admissible to identify debt and apply writing to its subject in determining sufficiency of new promise to toll statute of limitations. Richter Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393, 1936 Miss. LEXIS 26 (Miss. 1936).

6. Pleading.

An admission of indebtedness made in a pleading may take the case out of the statute. Kline v. Pearl, 236 Miss. 66, 109 So. 2d 556, 1959 Miss. LEXIS 294 (Miss. 1959).

Statute of limitations begins to run against an acknowledgment of indebtedness made by a pleading, only from the time when the suit was dismissed. Kline v. Pearl, 236 Miss. 66, 109 So. 2d 556, 1959 Miss. LEXIS 294 (Miss. 1959).

Superficial uncertainties as to exact amounts due, desolvable by explanation, are not sufficient to impair identification of an indebtedness under this section [Code 1942, § 478]. Dyer v. Lowe, 201 Miss. 516, 29 So. 2d 324, 1947 Miss. LEXIS 413 (Miss. 1947).

Where defendant, by sworn plea, expressly denies that he wrote, signed, or authorized letter to plaintiff acknowledging correctness of written account sued on, and there is not evidence to contrary, denial must be accepted as true. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938).

Where defendant pleaded the general issue and the three-year statute of limitations, the granting of permission to file a sworn plea, at the trial and over plaintiff’s objections, denying writing of a letter alleged to constitute acknowledgment of indebtedness removing the bar of the three-year statute was within trial court’s discretion. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938).

The alleged error in permitting appellant to file a sworn plea at trial denying writing of letter alleged to constitute acknowledgment of debt taking case out of three-year statute of limitations could not be considered on appeal in absence of cross-assignment of error by appellee. Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912, 1938 Miss. LEXIS 13 (Miss. 1938).

A statement in a letter that the writer owes “merchandise $9.60,” fixing the date, is not invalid because the articles are not specified. Yarbrough v. Gilland, 77 Miss. 139, 24 So. 170, 1899 Miss. LEXIS 34 (Miss. 1899).

RESEARCH REFERENCES

ALR.

Validity of contractual waiver of statute of limitations. 1 A.L.R.2d 1445.

Necessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay. 21 A.L.R.4th 1121.

Am. Jur.

51 Am. Jur. 2d, Limitation of Actions §§ 282 et seq.

12 Am. Jur. Legal Forms 2d, Limitation of Actions, § 167:20 (acknowledgement of debt); §§ 167:32 et seq. (new promise to pay).

CJS.

54 C.J.S., Limitations of Actions §§ 300, 301 et seq.

JUDICIAL DECISIONS

1. In general.

Miss. Code Ann. §15-1-75 has been interpreted to prevent the relation back of tolling to potentially jointly liable parties subsequently amended into existing litigation. Tolling begins when one is actually sued or brought in by amendment regardless of the status of a potentially jointly liable party; §15-1-75 means nothing more. Rainwater v. Lamar Life Ins. Co., 381 F. Supp. 2d 581, 2005 U.S. Dist. LEXIS 21485 (S.D. Miss. 2005).

In Mississippi, suit against one of several persons liable in solido does not interrupt limitation statute as against other not so sued. Dunn Const. Co. v. Bourne, 172 Miss. 620, 159 So. 841, 1935 Miss. LEXIS 130 (Miss. 1935).

Louisiana statute requiring compensation proceedings to be instituted within one year from time cause of action accrued held to bar proceedings in Mississippi against employer not sued within one-year period notwithstanding that under Louisiana law both employer and insurer were liable in solido for compensation and insurer had been sued within the one-year period and that such suit under Louisiana procedural statutes interrupted prescription against debtors in solido, since one-year limitation period constituted part of substantive law which would be enforced in Mississippi while procedural statutes would not be so enforced. Dunn Const. Co. v. Bourne, 172 Miss. 620, 159 So. 841, 1935 Miss. LEXIS 130 (Miss. 1935).

RESEARCH REFERENCES

ALR.

What statute of limitations applies to action for contribution against joint tortfeasor. 57 A.L.R.3d 927.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 161 et seq.

CJS.

54 C.J.S., Limitations of Actions §§ 74 et seq.

JUDICIAL DECISIONS

1. In general.

Notes issued by a railroad company in 1861 and 1862, made payable on demand, and which could not be re-issued as currency after one year from the close of the then existing war, are not within the saving of the section [Code 1942, § 749]. Butts v. Vicksburg & M. R. R. Co., 63 Miss. 462, 1886 Miss. LEXIS 124 (Miss. 1886).

Cross References —

Concealed fraud, see §15-1-67.

Requirement of new promises to be in writing, see §15-1-73.

Ratification of contracts during infancy, see §15-3-11.

Statute of frauds applicable to contracts for sale of personal property not otherwise covered by Uniform Commercial Code, see §75-1-206.

Requirement that contract for sale of goods be in writing, see §75-2-201.

Statute of frauds applicable to sales contracts which are modified, see §75-2-209(3).

Enforceability of guaranty written on negotiable instrument notwithstanding statute of frauds, see §75-3-416.

Formal written requirements of letters of credit, see §75-5-104.

Requirement of land being conveyed only by writing, see §89-1-3.

Recording of marriage contracts, see §89-5-3.

Conveyances and mortgages being made void if not lodged for record, see §89-5-3.

Recording written contracts in relation to land, see §89-5-7.

Parole agreement concerning party walls, see §89-15-1.

What is necessary to validity of conveyance, see §93-3-9.

Restrictions on contracts between husband and wife, see §93-9-7.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Oral promises and contracts.

4. Parol evidence.

5. Sufficiency of writing, generally.

6. —Letters.

7. —Receipts.

8. —Memoranda.

9. More than one writing as constituting contract.

10. Delivery of writing as essential.

11. Signing of writing.

12. Partial performance, generally.

13. Debt, default, or miscarriage of another, generally.

14. —Contractors, subcontractors and materialmen.

15. —Oral promises.

16. — Collateral obligation.

17. —Consideration.

18. —Consideration or benefit flowing to promisor.

19. —Promise to indemnify surety.

20. Agreement upon consideration of marriage.

21. Sale or lease of land, generally.

22. —Applicability.

23. —Necessary terms.

24. —Oral promises and contracts.

25. —Abstract of title.

26. —Latent defects.

27. —Mortgages.

28. —Miscellaneous.

29. —Part performance of contract of sale.

30. —Promise to reconvey.

31. —Boundary and party wall agreements.

32. —Licenses.

33. —Timber contracts.

34. —Leases.

35. —Contract of employment of agent.

36. Contract not to be performed within fifteen months, generally.

37. —Employment.

38. —Sales.

39. —Miscellaneous.

40. —Possibility of performance within fifteen months.

41. Settlement agreements.

1. In general.

Even if there was no enforceable contract, a seller was estopped from denying the deal he struck with a purchaser because the purchaser detrimentally relied on seller’s inducements, most notably selling his home. Swartzfager v. Saul, 213 So.3d 55, 2017 Miss. LEXIS 67 (Miss. 2017).

Constructive trusts are not subject to the statute of frauds. Allred v. Fairchild, 785 So. 2d 1064, 2001 Miss. LEXIS 143 (Miss. 2001).

A party may waive the protection of the Statute of Frauds. Canizaro v. Mobile Communications Corp. of Am., 655 So. 2d 25, 1995 Miss. LEXIS 138 (Miss. 1995).

Security agreements relating to collateral in possession of secured party are not required to be in writing, subject to applicability of the statute of frauds. In re Viscount Furniture Corp., 133 B.R. 360, 1991 Bankr. LEXIS 1630 (Bankr. N.D. Miss. 1991).

Where plaintiff, recipient of certain scholarship funds as financial assistance for medical school costs and tuition, was required to fulfill 4 year service obligation at approved health care facility, and signed private practice assignment agreement with health care facility, with such agreement stating that it would be “negotiable at the end of one year”, and accepted employment there, but was terminated 10 months later with the termination being memorialized as a non-renewal of employment agreement, claim by plaintiff regarding alleged unwritten contract for 4 years is barred by statute of frauds. Regarding one year contract of employment: duration of plaintiff’s contract of employment was not to be confused with existence of an adequate writing to satisfy statute of frauds, and employment agreement relied upon by the plaintiff constitutes sufficient written evidence of a one year contract of employment to satisfy requirement of statute of frauds. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

Statute of frauds does not represent proper basis for dismissal of complaint for wrongful termination prior to end of first year of employment, but conversely, neither does it bar any claim that plaintiff had oral 4 year contract of employment with defendant. Robinson v. Coastal Family Health Center, Inc., 756 F. Supp. 958, 1990 U.S. Dist. LEXIS 18728 (S.D. Miss. 1990).

A contract to devise or bequeath property by will is enforceable, but must be in writing pursuant to the statute of frauds. Although a party may satisfy the court of the existence of an unwritten agreement to devise, the statute of frauds precludes specific performance as a remedy, even where the promisee has done all he or she was expected to do under the agreement. Williams v. Mason, 556 So. 2d 1045, 1990 Miss. LEXIS 34 (Miss. 1990).

The statute of frauds does not bar an action for damages based on fraud even though the promise underlying the fraud is itself unenforceable under the statute of frauds. Crystal Springs Ins. Agency, Inc. v. Commercial Union Ins. Co., 554 So. 2d 884, 1989 Miss. LEXIS 490 (Miss. 1989).

The doctrine of equitable estoppel may be pled as an exception in any case where the statute of frauds is asserted as a defense. Bowers Window & Door Co. v. Dearman, 549 So. 2d 1309, 1989 Miss. LEXIS 433 (Miss. 1989).

Statute of frauds does not apply to claim arising from negligent misrepresentation made in letter by bank written to importer regarding financial arrangements made by bank with manufacturer purchasing material from importer; even if statute did apply, doctrine of equitable estoppel would take case outside statute. Shogyo International Corp. v. First Nat'l Bank, 475 So. 2d 425, 1985 Miss. LEXIS 2180 (Miss. 1985).

Equitable estoppel is exception to §15-3-1. PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 1984 Miss. LEXIS 1676 (Miss. 1984).

Even though §15-3-1(c) provides that no contract for the conveyance of an interest in land is binding unless signed by the party to be charged, equitable estoppel is a well-established exception to the statute of frauds. PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 1984 Miss. LEXIS 1676 (Miss. 1984).

Grantee under deed attempted by interlineation to make his wife additional grantee by writing her name into deed following his signature; such addendum was written without knowledge of original grantor, was not signed by grantee, and was not acknowledged; held, interlineation was ineffective to convey title from either original grantor or from original grantee, as it was in conflict with this section. Perkins v. Kerby, 308 So. 2d 914, 1975 Miss. LEXIS 1857 (Miss. 1975), overruled in part, PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 1984 Miss. LEXIS 1676 (Miss. 1984).

The written authorization to enter into a contract may be found in a partnership agreement whereby one of the parties or corporations under his control were empowered to contract in the name of the latter. Morgan v. Jackson Ready-Mix Concrete, 247 Miss. 863, 157 So. 2d 772, 1963 Miss. LEXIS 365 (Miss. 1963).

Where trust will result in absence of express agreement, fact that such agreement is made will not prevent trust from arising. Pitchford v. Howard, 208 Miss. 567, 45 So. 2d 142, 1950 Miss. LEXIS 275 (Miss. 1950).

The statute of frauds is a personal privilege of the contracting parties sought to be charged, and is not available to anyone else in a collateral proceeding. Wirtz v. Gordon, 187 Miss. 866, 184 So. 798, 1938 Miss. LEXIS 321 (Miss. 1938); Grisham v. Lutric, 76 Miss. 444, 24 So. 169, 1898 Miss. LEXIS 73 (Miss. 1898).

Where defendant’s testimony was objected to on ground it was effort to vary terms of note, but objections not ruled on, finding for plaintiff did not constitute holding that agreement had not been made, but indicated such issue was not decided. Southern Package Corp. v. Beall, 181 Miss. 740, 180 So. 789, 1938 Miss. LEXIS 114 (Miss. 1938).

Fact that contract of sale was within statute did not relieve carrier from liability for damages caused by negligent delay. Parish & Co. v. Yazoo & M. V. R. Co., 103 Miss. 288, 60 So. 322, 1912 Miss. LEXIS 171 (Miss. 1912).

Principal not liable for acts of agent unless within the scope of actual or apparent authority; agent cannot enlarge authority by unauthorized acts. White v. Lee, 97 Miss. 493, 52 So. 206, 1910 Miss. LEXIS 217 (Miss. 1910).

2. Applicability.

Statute of frauds did not bar claim by purported partners because the partners’ claims did not involve a dispute over a contract for the sale of lands, but a dispute over partnership profits and assets. An otherwise enforceable verbal partnership agreement did not constitute a contract for the sale of lands under the statute of frauds simply because the purpose of the partnership included the purchase of real estate. Latham v. Johnson, 262 So.3d 569, 2018 Miss. App. LEXIS 314 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 798, 2019 Miss. LEXIS 48 (Miss. 2019).

If the mobile home purchaser were seeking damages for the breach of debtor’s agreement to sell the mobile home in January 2007 then the Statute of Frauds would apply. But he was seeking to recover damages for fraud, and, therefore, the Statute of Frauds did not preclude his claim. Thomas v. Rice (In re Rice), 526 B.R. 631, 2015 Bankr. LEXIS 527 (Bankr. N.D. Miss. 2015).

Insurance agent’s assertion that claims by intended insurance beneficiaries were barred by the statute of frauds because the change of beneficiary was not done in writing and approved, as required, lacked merit because the statute of frauds only affected matters prior to the execution of the contract or policy; as the issue involved the change of beneficiaries after the execution of the policy, the statute was inapplicable. Strait v. McPhail, 145 So.3d 696, 2013 Miss. App. LEXIS 768 (Miss. Ct. App. 2013), rev'd, 145 So.3d 664, 2014 Miss. LEXIS 422 (Miss. 2014).

Where a telephone company’s constructive license to continue and use telephone lines and fixtures derived from Miss. Code Ann. §77-9-715, the constructive license did not violate the statute of frauds, Miss. Code Ann. §15-3-1, because the statute of frauds did not apply given that the telephone company’s rights arose by operation of law and did not come from a contract. Marlow, LLC v. BellSouth Telecomms., Inc., 2011 U.S. Dist. LEXIS 54309 (S.D. Miss. May 18, 2011), aff'd in part and rev'd in part, 686 F.3d 303, 2012 U.S. App. LEXIS 13425 (5th Cir. Miss. 2012).

Where an amendment to a building purchase and sale agreement, stipulating that the inspection period had expired and the buyers had no further right to terminate the agreement, was signed by the buyers, and then delivered to the sellers, one of whom assented by his signature and the other two communicated their assent to the buyers via email from their agent, the amendment was enforceable against the buyers; the statute of frauds did not require that each of the sellers sign the document in order to enforce it, much less that they had to sign it in order to manifest assent to its terms. Heritage Bldg. Prop., LLC v. Prime Income Asset Mgmt., 43 So.3d 1138, 2009 Miss. App. LEXIS 943 (Miss. Ct. App. 2009), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 482 (Miss. 2010).

Trial court’s grant of an injunction that prohibited a city from providing water to areas outside the city that had recently been annexed was reversed as the utility company’s predecessor in interest had granted the city the right to provide such service. Even though the original agreement was not produced, the agreement was not subject to the statute of frauds as it was not a contract for the sale of land or a lease that ran for longer than a year, and its terms could have been proven by parole evidence. City of Hernando v. N. Miss. Util. Co., 901 So. 2d 652, 2004 Miss. App. LEXIS 1081 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 302 (Miss. 2005).

Under principle that pre-UCC law is applicable unless displaced by particular provisions of Code, UCC statute of frauds, rather than general statute of frauds, applies to alleged oral agreement and subsequent confirmatory letter, where general statute of frauds and UCC provision are in conflict and mandate different results. H & W Industries, Inc. v. Formosa Plastics Corp., 860 F.2d 172, 1988 U.S. App. LEXIS 15357 (5th Cir. Miss. 1988).

The statute of frauds has no application to a contract executed by performance by both parties. Landry v. Moody Grishman Agency, Inc., 254 Miss. 363, 181 So. 2d 134, 1965 Miss. LEXIS 955 (Miss. 1965).

The statute does not apply to a promise to make a will. Boggan v. Scruggs, 200 Miss. 747, 29 So. 2d 86, 1947 Miss. LEXIS 358 (Miss. 1947), overruled, Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

3. Oral promises and contracts.

Oral statement by the principal of a corporate health care provider did not bind the principal individually to pay a corporate debt as it was barred by the statute of frauds. Patton Med. of Gulf Coast, Inc. v. Relle, 269 So.3d 266, 2018 Miss. App. LEXIS 156 (Miss. Ct. App. 2018).

While a chancellor properly found that the relatives were entitled to a new trial, the chancellor erred in finding that the relatives were entitled to an equitable lien because their alleged oral contract failed under the statute of frauds. Barriffe v. Estate of Nelson, 153 So.3d 613, 2014 Miss. LEXIS 492 (Miss. 2014).

Chapter 13 debtor’s claim that he had an oral agreement with a creditor to sell the creditor a company he owned that manufactured and sold bird calls, in exchange for payment of $250,000 in five $50,000 increments over five years and the creditor’s promise to forgive debts the debtor owed under several promissory notes he signed, was barred by two Mississippi statutes of frauds: Miss. Code Ann. §§15-3-1 and75-2-201. Ziegler v. Hood (In re Hood), 2013 Bankr. LEXIS 3709 (Bankr. N.D. Miss. Sept. 3, 2013).

The statute of frauds did not bar a broker’s breach of contract action arising from an oral brokerage agreement, under which the broker undertook to secure a particular corporation as a customer of another corporation for the purchase of its products, where the broker had secured the corporation as a customer for those products and had therefore fully performed its part of the agreement. American Chocolates, Inc. v. Mascot Pecan Co., 592 So. 2d 93, 1991 Miss. LEXIS 977 (Miss. 1991).

Action for fraud and deceit is not barred by §15-3-1 notwithstanding that action is for damages incurred in reliance on oral promise that is itself unenforceable under statute of frauds. Walker v. U-Haul Co. of Mississippi, 734 F.2d 1068, 1984 U.S. App. LEXIS 21143 (5th Cir. Miss. 1984).

Although an action to enforce an oral agreement to devise real property in return for a loan would be unenforceable under the statute of frauds, the claim would be upheld against the estate of the deceased debtor where the claimant did not seek enforcement of the agreement, but probated the agreement for recovery of the indebtedness, which was a consideration for it. Estate of McKellar v. Brown, 404 So. 2d 550, 1981 Miss. LEXIS 2229 (Miss. 1981).

The statute of frauds is a personal right available to the party to an oral contract against whom enforcement is sought by the other party, and the plaintiff cannot invoke the statute for a defendant. Peaslee Gaulbert Paint & Varnish Co. v. Lumpkin, 238 Miss. 637, 119 So. 2d 772, 1960 Miss. LEXIS 448 (Miss. 1960).

Generally, an oral agreement to convey land by will or otherwise is within the statute of frauds, and specific performance of such agreement cannot be enforced. Estate of Collins v. Dunn, 233 Miss. 636, 103 So. 2d 425, 1958 Miss. LEXIS 426 (Miss. 1958).

Failure of answer to allege that oral contract violated statute did not preclude defendant from invoking such defense on appeal. Singletary v. Ginn, 153 Miss. 700, 121 So. 820, 1929 Miss. LEXIS 84 (Miss. 1929).

Failure to discharge mutual monetary obligations on verbal contract otherwise completed does not render contract unenforceable. Singletary v. Ginn, 153 Miss. 700, 121 So. 820, 1929 Miss. LEXIS 84 (Miss. 1929).

Plaintiff cannot rely on law of other state where declaration does not aver that oral promise sued on was made in that state. Craft v. Lott, 87 Miss. 590, 40 So. 426, 1905 Miss. LEXIS 208 (Miss. 1905).

If in a suit on a promissory note the defendants set up by way of set-off and testify to the terms of a parol contract between the parties and services rendered thereunder, it is competent for the plaintiff to state in evidence his version of the contract, even though the terms thereof, as testified to by plaintiff, make the contract within the statute. Timberlake v. Thayer, 76 Miss. 76, 23 So. 767, 1898 Miss. LEXIS 68 (Miss. 1898).

4. Parol evidence.

Nothing in the statute of frauds requires that the contract itself be in writing. The statute is satisfied so long as there is “some memorandum or note thereof.” For the prevention of frauds, the statute merely prescribes the form a part of the evidence must take. Oral testimony regarding the fact is admissible as well. Where the writing has been destroyed or is presently unavailable, the parties may employ parol evidence to prove “both its existence and contents.” The “memorandum or note” serves but to show a basis for believing that the offered oral evidence rests on a real action, and that a contract to sell has been made between the parties. Putt v. Corinth, 579 So. 2d 534, 1991 Miss. LEXIS 178 (Miss. 1991).

When a writing or memorandum is lost or destroyed, both its existence and contents may be proven by parol evidence; the loss or destruction of a memorandum does not deprive it of effect under the Statute of Frauds. Thus, §15-1-29, §15-1-73 and the Statute of Frauds (§15-3-1) did not bar an action to enforce a loan agreement which was allegedly destroyed in a fire where the plaintiff sufficiently proved the existence and contents of the destroyed memorandum. Williams v. Evans, 547 So. 2d 54, 1989 Miss. LEXIS 335 (Miss. 1989).

The rule that a written contract cannot be changed or modified by parol evidence of what was said and done by the parties at the time of making of the contract does not preclude the subsequent parol modification of the written contract, provided the contract is not one which under the statute is required to be in writing. Nason v. Morrissey, 218 Miss. 601, 67 So. 2d 506, 1953 Miss. LEXIS 576 (Miss. 1953).

When grantee or devisee obtains possession and title to land intended for another by actual fraud, on proof of the fraud a trust will be raised in favor of the latter, and the trust may be established by parol. Pitchford v. Howard, 208 Miss. 567, 45 So. 2d 142, 1950 Miss. LEXIS 275 (Miss. 1950).

5. Sufficiency of writing, generally.

The minutes of a city’s public utility commission, which were signed by the president and secretary of the utilities commission, were approved at a subsequent meeting, and evidenced an intent to buy land, identify the land, and set out the purchase price, were sufficient to constitute a “memorandum or note” satisfying the statute of frauds. Putt v. Corinth, 579 So. 2d 534, 1991 Miss. LEXIS 178 (Miss. 1991).

Nonconsenting interest owner in natural gas unit whose interest was force integrated into drilling unit would only be liable for operating expenses upon payout; furthermore, consent by such interest owner to pay expenses sooner must be in writing and signed by owner to comply with statute of frauds in order to be enforceable. Hunt Energy Corp. v. Crosby-Mississippi Resources, Ltd., 732 F. Supp. 1378, 1989 U.S. Dist. LEXIS 16531 (S.D. Miss. 1989), aff'd, 979 F.2d 1533, 1992 U.S. App. LEXIS 31864 (5th Cir. 1992).

Description of land in a mineral lease as “being a part of the N 1/2 of SE 1/4 and a part of the S 1/2 of the NE 1/4 of Section 9, Township 2 N, Range 2 E, and containing 100 acres, more or less” is too vague to sustain its validity. Silvey v. Upton, 202 Miss. 485, 32 So. 2d 267, 1947 Miss. LEXIS 303 (Miss. 1947).

In order to comply with this section [Code 1942, § 264] the memorandum must contain words appropriate to, and indicating an intention thereby, to convey or lease land, must identify the land, set forth the purchase price, or, if a lease, the rent to be paid and the terms of payment. Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So. 2d 100, 1947 Miss. LEXIS 399 (Miss. 1947).

Sale contract must describe land with reasonable certainty or identify other writings by aid of which description can be made reasonably certain. Taylor v. Sayle, 163 Miss. 822, 142 So. 3, 1932 Miss. LEXIS 91 (Miss. 1932).

Contract for sale of land which rests partly in writing and partly in parol is void. Taylor v. Sayle, 163 Miss. 822, 142 So. 3, 1932 Miss. LEXIS 91 (Miss. 1932).

Memorandum must contain substantial terms of contract so as to be understood from contract itself without resorting to parol evidence. Kervin v. Biglane, 144 Miss. 666, 110 So. 232, 1926 Miss. LEXIS 396 (Miss. 1926).

Written memorandum failing to state purchase price and terms was held insufficient to compel specific performance. Sturm v. Dent, 141 Miss. 648, 107 So. 277, 1926 Miss. LEXIS 476 (Miss. 1926).

However, acceptance of order free from ambiguity completes a contract. Allen & Co. v. Monroe County Hay Exchange, 123 Miss. 502, 86 So. 297, 1920 Miss. LEXIS 47 (Miss. 1920).

Seller accepting telegraph order in clear language cannot set up misunderstanding. Allen & Co. v. Monroe County Hay Exchange, 123 Miss. 502, 86 So. 297, 1920 Miss. LEXIS 47 (Miss. 1920).

A writing for the sale of land which designates the promisors as “Phillips & Bro.” is not defective, under the statute of frauds, for want of parties. Langstaff Hardware Co. v. Wallace, 28 So. 871 (Miss. 1900).

Telegrams containing an order for the purchase of goods, and a reply, unless they show the substantial terms of the bargain, including the price, do not meet the requirements of the statute. Rector Provision Co. v. Sauer, 69 Miss. 235, 13 So. 623, 1891 Miss. LEXIS 135 (Miss. 1891).

If the writing disclose an uncertainty which parol evidence is not admissible to explain, it cannot be helped by an averment that the parties meant a particular thing. Fisher v. Kuhn, 54 Miss. 480, 1877 Miss. LEXIS 30 (Miss. 1877).

The word “promise” is used in the statute. The English originally used the word “agreement.” Under our statute, the consideration need not be expressed in the writing, though it was necessary under the English. Wren v. Pearce, 12 Miss. 91, 1845 Miss. LEXIS 2 (Miss. 1845).

6. —Letters.

In a dispute brought by a father against his son to set aside a deed, had the parties not reached a settlement agreement, a chancery court would have been justified in awarding the son attorney’s fees because the father’s suit was frivolous; the deed did not reflect that the son was obligated to build a house on the property, and the only document that might have supported the father’s argument was a letter that contained no signatures or any other acknowledgement from the son. Merideth v. Merideth, 986 So. 2d 363, 2008 Miss. App. LEXIS 388 (Miss. Ct. App. 2008).

Letters held insufficient to take out of the statute of frauds a primary contractor’s alleged promise to pay a debt owed by a subcontractor to a subcontractor. Redd v. L & A Contracting Co., 246 Miss. 548, 151 So. 2d 205, 1963 Miss. LEXIS 478 (Miss. 1963).

Letter merely expressing an expectation to pay all claims was not a sufficient written promise to pay debt. Corinth, Shilo & Savannah Turnpike Co. v. Gooch, 113 Miss. 50, 73 So. 869, 1916 Miss. LEXIS 11 (Miss. 1916).

Letter held too vague and indefinite to constitute memorandum taking contract out of statute. Craft v. Lott, 87 Miss. 590, 40 So. 426, 1905 Miss. LEXIS 208 (Miss. 1905).

7. —Receipts.

A receipt reciting a certain sum as payment by the person named “on the place on which he now lives” is not a sufficient memorandum of the sale of land to satisfy the statute. Culpepper v. Chain, 202 Miss. 309, 32 So. 2d 266, 1947 Miss. LEXIS 278 (Miss. 1947).

A receipt by one other than the owner, acknowledging a down payment of a purchase price on certain lots and reciting that certain notes and a deed of trust were to be given for the balance, was insufficient as a memorandum of the contract of sale under this section [Code 1942, § 264], in that it failed to state in what county and state such lots were situated and it did not purport to be made on behalf of the owner of the property in question. Paine v. Mikell, 187 Miss. 125, 192 So. 15, 1939 Miss. LEXIS 88 (Miss. 1939).

Vendor’s receipt for sum “to apply on purchase of land on the south side of the town of Darling, to be measured later and paid for at the rate of $30 per acre,” held void for want of certainty. Nickerson v. Fithian Land Co., 118 Miss. 722, 80 So. 1, 1918 Miss. LEXIS 125 (Miss. 1918).

8. —Memoranda.

The promissory note signed by the parties satisfied the Statute of Frauds as a “memorandum or note”, and because the grocery store was described both by name and physical address, the land was described with reasonable certainty. Theobald v. Nosser, 752 So. 2d 1036, 1999 Miss. LEXIS 399 (Miss. 1999).

Writing providing that for a money consideration plaintiff was given limited time within which to purchase from defendant a designated number of acres of timbered land, lying in two specified counties, at a certain price per acre, held insufficient, and parol evidence inadmissible to cure deficiency. Scherck v. Moyse, 94 Miss. 259, 48 So. 513, 1908 Miss. LEXIS 47 (Miss. 1908).

Memorandum must include all material features of agreement so that resort to parol testimony will be unnecessary, except to show situation of parties and application of terms of the contract. Gulfport Cotton Oil, Fertilizer & Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, 1909 Miss. LEXIS 346 (Miss. 1909).

A memorandum of a bargain of sale to the effect that the seller could spare the purchasers a specified quantity of corn, to be delivered at a stated time, is insufficient to take the sale out of the statute of frauds. Willis v. State, 27 So. 524 (Miss. 1900).

A memorandum in writing, to take a case out of the statute, must contain the substantial terms of the contract, so that they may be understood from the contract itself or some other writing to which it refers, without resorting to parol evidence. McGuire v. Stevens, 42 Miss. 724, 1869 Miss. LEXIS 41 (Miss. 1869); Waul v. Kirkman, 27 Miss. 823, 1854 Miss. LEXIS 136 (Miss. 1854).

9. More than one writing as constituting contract.

Memorandum of promise to answer for debt of another need not be in one writing. Central Shoe Co. v. J. P. Conn & Co., 160 Miss. 151, 133 So. 126, 1931 Miss. LEXIS 132 (Miss. 1931).

Telegrams and letter held sufficient memorandum to bind guarantor for payment of account. Central Shoe Co. v. J. P. Conn & Co., 160 Miss. 151, 133 So. 126, 1931 Miss. LEXIS 132 (Miss. 1931).

If paper signed by party sought to be charged makes such reference to another writing that, construing them together, all terms of bargain are expressed, it is sufficient, and parol evidence is admissible to identify paper referred to and apply reference. Central Shoe Co. v. J. P. Conn & Co., 160 Miss. 151, 133 So. 126, 1931 Miss. LEXIS 132 (Miss. 1931).

Memorandum may consist of several distinct writings, provided they are so related that the paper signed may be held to be an approval of the other documents. Gulfport Cotton Oil, Fertilizer & Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, 1909 Miss. LEXIS 346 (Miss. 1909).

Statement in letter of defendant held not to constitute acceptance of terms of contract as detailed in letter of plaintiff. Gulfport Cotton Oil, Fertilizer & Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, 1909 Miss. LEXIS 346 (Miss. 1909).

Statements in private letters of the owner of lands to his broker in regard to the latter’s fee that he will sell it to a designated person are not alone sufficient to sustain a bill brought by such person for specific performance of a contract of sale. Keene v. Lowenthal, 83 Miss. 204, 35 So. 341, 1903 Miss. LEXIS 34 (Miss. 1903).

Telegrams containing an order for the purchase of goods, and a reply, unless they show the substantial terms of the bargain, including the price, do not meet the requirements of the statute. Rector Provision Co. v. Sauer, 69 Miss. 235, 13 So. 623, 1891 Miss. LEXIS 135 (Miss. 1891).

The memorandum may be in two or more writings, if they be connected physically or by internal reference. Fisher v. Kuhn, 54 Miss. 480, 1877 Miss. LEXIS 30 (Miss. 1877).

10. Delivery of writing as essential.

Stipulations in a contract for performance periods may be made to run from a specified date prior to the date of delivery. Hughes v. Franklin, 201 Miss. 215, 29 So. 2d 79, 1947 Miss. LEXIS 388 (Miss. 1947).

Memorandum of sale of standing timber, though complete in all other respects, is not sufficient compliance with statute of frauds, unless delivered to buyer. Howie v. Swaggard, 142 Miss. 409, 107 So. 556, 1926 Miss. LEXIS 99 (Miss. 1926).

Oral agreement to sell house and put purchaser in possession, followed by execution but not delivery of deed, was no change of interest. Osler v. Atlas Assurance Co., 127 Miss. 511, 90 So. 185, 1921 Miss. LEXIS 253 (Miss. 1921).

The writing, though complete in all other respects, is not sufficient unless it has been delivered. Jelks v. Barrett, 52 Miss. 315, 1876 Miss. LEXIS 216 (Miss. 1876); Johnson v. Brook, 31 Miss. 17, 1856 Miss. LEXIS 25 (Miss. 1856).

11. Signing of writing.

The statutory signing requirements of §§15-3-1,89-1-3,89-1-29 and91-9-1 [repealed] were satisfied with respect to a deed of trust relating to homestead property, even though the wife neglected to sign the deed of trust document, where her signature appeared on the 2 attachments to the deed of trust-the property description and the adjustable rate mortgage rider-which constituted an integral part of the deed of trust. United Miss. Bank v. GMAC Mortgage Co., 615 So. 2d 1174, 1993 Miss. LEXIS 21 (Miss. 1993).

A contract to buy and sell lands signed by only two of the three owners is not null and void under §15-3-1 where the owners who signed were acting as agents for the third owner who assented to and ratified both their actions and the terms of the contract. Hamilton v. Bradford, 502 F. Supp. 822, 1980 U.S. Dist. LEXIS 16367 (S.D. Miss. 1980).

A corporation’s contract for architectural services satisfied the statute of frauds and the architectural firm could enforce the contract where it had been initialed by the corporation’s vice president, and initialing was his usual way of authenticating a document, and where the same vice president wrote and signed a memorandum expressly referring to the contract; though the contract had subsequently been sent to the corporation’s president for him to sign, and he had failed to do so, the vice president’s signature was adequate since the jury had found that he had authority to execute the contract. Affiliated Invest., Inc. v. Turner, 337 So. 2d 1263, 1976 Miss. LEXIS 1606 (Miss. 1976).

Where a new highway eliminated an S-curve between the lands of the vendor and the adjoining landowner, and they made an oral exchange, void under the statute of frauds, whereby the title to all of the vendor’s lands south of the highway would become vested in the adjoining landowner, and title to all of the landowner’s land north of the present highway would be vested in the vendor, and where the adjoining landowner talked to the purchaser during a survey of the vendor’s lot but made no claim to the land until construction of a house by the purchaser was completed, the purchaser having acted in good faith believing that he had title, the landowner was estopped to assert his legal title to the land north of the highway. Martin v. Franklin, 245 So. 2d 602, 1971 Miss. LEXIS 1381 (Miss. 1971).

It is not necessary that the contract should have been also signed by the party seeking to enforce it. Cooley v. Stevens, 240 Miss. 581, 128 So. 2d 124, 1961 Miss. LEXIS 488 (Miss. 1961).

A note or memorandum in writing, expressing the consideration, and subscribed by the party to be charged therewith, is not required in a contract of novation. Peaslee Gaulbert Paint & Varnish Co. v. Lumpkin, 238 Miss. 637, 119 So. 2d 772, 1960 Miss. LEXIS 448 (Miss. 1960).

Where both the original note and the instalment agreement indorsed on the back of the note were signed by the party charged with the payment of the indebtedness this section [Code 1942, § 264] was not applicable to the case. Freeman v. Truitt, 238 Miss. 623, 119 So. 2d 765, 1960 Miss. LEXIS 447 (Miss. 1960).

Officers’ and directors’ contract to pay all bank’s losses held not within statute of frauds because schedule attached thereto was unsigned. Love v. Dampeer, 159 Miss. 430, 132 So. 439, 1931 Miss. LEXIS 62 (Miss. 1931).

But unsigned memorandum of terms of sale of standing timber is not covered by signature of vendor on back of check given him by vendee in part payment, unless it is referred to in check, or physically attached thereto in such manner as to be part thereof. Howie v. Swaggard, 142 Miss. 409, 107 So. 556, 1926 Miss. LEXIS 99 (Miss. 1926).

Written memorandum to answer debt of another, signed with initials not showing by whom or to whom payable, held within statute. Postal Tel. & Cable Co. v. Friedhof, 127 Miss. 498, 90 So. 182, 1921 Miss. LEXIS 251 (Miss. 1921).

Contract to sell timber, not signed by assignee, held enforceable by him against seller. Young v. Adams, 122 Miss. 1, 84 So. 1, 1920 Miss. LEXIS 412 (Miss. 1920).

Memorandum must be signed by party to be charged. Gulfport Cotton Oil, Fertilizer & Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, 1909 Miss. LEXIS 346 (Miss. 1909).

A written agreement for the sale of land is enforceable against a vendor who signed it, though neither the agreement nor any contract to pay the price was signed by the vendee, where such vendee afterwards offers in writing to perform the contract. Peevey v. Haughton, 72 Miss. 918, 17 So. 378, 1895 Miss. LEXIS 14 (Miss. 1895).

It is a sufficient compliance with the statute, if only “the party charged” shall have signed the writing, whether the other shall have signed or not. Marqueze v. Caldwell, 48 Miss. 23, 1873 Miss. LEXIS 31 (Miss. 1873); Williams v. Tucker, 47 Miss. 678, 1873 Miss. LEXIS 22 (Miss. 1873).

12. Partial performance, generally.

Part performance of an oral exclusive-dealer agreement will not take it out of the statute. Stahlman v. National Lead Co., 318 F.2d 388, 1963 U.S. App. LEXIS 5265 (5th Cir. Miss. 1963).

But contract for purchase and sale of corporate stock was held taken out of the statute by part performance. Pugh v. Gressett, 136 Miss. 661, 101 So. 691, 1924 Miss. LEXIS 170 (Miss. 1924).

Part performance, or any other thing, will not make an exception. Fisher v. Kuhn, 54 Miss. 480, 1877 Miss. LEXIS 30 (Miss. 1877).

13. Debt, default, or miscarriage of another, generally.

At the summary judgment stage, it could not be held that promissory and equitable estoppel foreclosed a guarantor’s reliance on Miss. Code Ann. §15-3-1 to avoid liability under a guaranty contract because there remained genuine issues of material fact as to whether the guarantor promised to pay the seller’s customer’s entire debt; there remained genuine issues of fact as to whether the seller relied to its detriment on the guarantor’s signing of a guaranty where the evidence showed that although the seller did not do any further business with the customer, the seller asserted that in reliance on the guaranty, it did not repossess the equipment and materials that the customer had in her possession; and it could not be held as a matter of law that the guarantor could not reasonably have expected that the seller would rely on his alleged promise in this way. Sukup Mfg. v. Rushing, 634 F. Supp. 2d 694, 2009 U.S. Dist. LEXIS 49088 (S.D. Miss. 2009).

Where there existed a genuine issue of fact as to whether decedent contracted in his own behalf for claimant to repair his son’s bulldozer, or whether the original obligation, which was not in writing, was on behalf of his son, the claimant was entitled to the opportunity to prove at an evidentiary hearing that his claim did not violate §15-3-1(a). Crawler Parts, Inc. v. Hill, 441 So. 2d 1357, 1983 Miss. LEXIS 3052 (Miss. 1983).

One sued by a guarantor who has discharged its obligation cannot claim that under this statute the guarantor could not have been required to do so. Powell v. Sowell, 245 Miss. 53, 145 So. 2d 168, 146 So. 2d 576, 1962 Miss. LEXIS 531 (Miss. 1962).

The statute does not apply in the case of a sale made to a third person solely upon the credit of the promisor. Rotenberry v. Quitman County Farmers Ass'n, 238 Miss. 867, 120 So. 2d 566, 1960 Miss. LEXIS 474 (Miss. 1960).

Where a third party promised to pay for the damage sustained by the plaintiff, if the plaintiff would release second party involved in collision, the oral promise was within the statute of frauds inasmuch as the second party was still subject to suit. Harris v. Griffin, 226 Miss. 74, 83 So. 2d 765, 1955 Miss. LEXIS 608 (Miss. 1955).

And the test is whether the other person continues liable. Wade v. Long, 168 Miss. 434, 151 So. 564, 1934 Miss. LEXIS 338 (Miss. 1934).

Where promise to pay another’s debt arises out of new and original consideration, moving between newly contracting parties, it is “original undertaking” and not within statute. Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599, 1931 Miss. LEXIS 161 (Miss. 1931).

Where beneficiary of trust deed induced others to make loan to enable borrowers to pay trust deed, his promise to pay indebtedness within two years if borrowers failed to do so was within statute of frauds. Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599, 1931 Miss. LEXIS 161 (Miss. 1931).

Promise to answer for debt, default, or miscarriage of another person, for which the other person himself continues liable, is within statute of frauds. Harris v. Griffin, 226 Miss. 74, 83 So. 2d 765, 1955 Miss. LEXIS 608 (Miss. 1955); Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599, 1931 Miss. LEXIS 161 (Miss. 1931).

One cannot sue father for services rendered on son’s plantation, unless father’s promise to pay therefor is in writing. Hannah v. Covington, 155 Miss. 825, 125 So. 418, 1930 Miss. LEXIS 125 (Miss. 1930).

Whether one purchasing goods from plaintiff was running business for defendant held for jury. Ricketts v. Drew Grocery Co., 155 Miss. 459, 124 So. 495, 1929 Miss. LEXIS 312 (Miss. 1929).

Surety company held estopped to deny authority of agent delivering appeal bond, or that signature was binding on it. Champenois & Blanks v. Donald Co., 153 Miss. 719, 121 So. 485, 1929 Miss. LEXIS 77 (Miss. 1929).

But agreement between attorney and client fixing amount of former’s fee and providing he was to pay costs in the Supreme Court if the case was reversed, held not within statute. Grace v. Floyd, 104 Miss. 613, 61 So. 694, 1913 Miss. LEXIS 77 (Miss. 1913).

The fact that goods were bought for and used by a person who is under no legal obligation to pay for them does not afford such a moral obligation as will support his verbal promise to pay, and this, too, though the person legally bound has escaped liability. Hendricks v. Robinson & Stevens, 56 Miss. 694, 1879 Miss. LEXIS 195 (Miss. 1879).

Where a person for whose use goods are purchased is liable to pay for them, any other promise by a third person to pay the debt is within the statute. Wallace v. Wortham, 25 Miss. 119, 1852 Miss. LEXIS 157 (Miss. 1852).

14. —Contractors, subcontractors and materialmen.

Once owner wholly satisfies his contract with defaulting contractor, subcontractors, laborers and materialmen have no lien on property or any valid claim against owner for debts owed by contractor, and any promise to pay more than was originally due contractor is gratuitous and is clearly within statute of frauds. B & G Crane Service, Inc. v. Dolphin Titan International, Inc., 762 F.2d 1292, 1985 U.S. App. LEXIS 30599 (5th Cir. La.), cert. denied, 474 U.S. 904, 106 S. Ct. 271, 88 L. Ed. 2d 232, 1985 U.S. LEXIS 3982 (U.S. 1985).

A verbal agreement by a property owner to pay materialmen for supplies they had furnished a contractor who abandoned construction of a house for the owner prior to its completion is invalid under the provisions of this section [Code 1942, § 264]. Phillips v. F. G. & H. Millwork Mfg. Co., 190 So. 2d 843, 1966 Miss. LEXIS 1399 (Miss. 1966).

Prime contractor’s oral agreement to pay rental for machinery used by subcontractor is not within the statute where the owner of the machinery supposed that he was renting it to the prime contractor. General Electric Co. v. Hans, 242 Miss. 119, 133 So. 2d 275, 1961 Miss. LEXIS 537 (Miss. 1961).

15. —Oral promises.

As a deceased partner had not been personally liable to repay the other partner for unequal advances he made to the partnership, the former’s alleged oral promise to repay the latter was a promise to pay another’s debt that was unenforceable under Miss. Code Ann. §15-3-1(a). In re Estate of Fitzner, 881 So. 2d 164, 2003 Miss. LEXIS 30 (Miss. 2003).

Assuming promise by president of mortgage company that borrower would not be required to repay loan was agreement to pay borrower’s debt if borrower could not afford to do so himself, statute of frauds would be applicable, and borrower could not obtain specific performance of oral agreement; action for fraud can be maintained on basis of contract or promise that is itself unenforceable under statute of frauds, and therefore, while borrower could not recover on contract itself, assuming one existed, damages incurred in reliance on president’s fraudulent oral promise are recoverable. Southern Mortg. Co. v. O'Dom, 699 F. Supp. 1223, 1987 U.S. Dist. LEXIS 14228 (S.D. Miss. 1987).

The oral contract by which a rice growers’ association agreed to reimburse a warehouseman for certain handling-out charges in connection with the sale of stored grain belonging to the association’s grower-members was not a special promise to answer for the debt or default of another where there was no binding and subsisting obligation on the part of the growers, or any other third party, to pay the charges, was not a contract of guaranty, but an enforceable contract binding upon the association. Mississippi Rice Growers Asso. v. Pigott, 191 So. 2d 399, 1966 Miss. LEXIS 1210 (Miss. 1966).

An oral agreement among creditors of an insolvent firm, including the holder of a trust deed to the firm’s property, that all operating expenses incurred before a fixed date would be paid in cash was not a special promise to answer for the debt of another, but enforceable as a waiver of the mortgagee’s prior claim to a suspended credits account which estopped the mortgagee, when operations ceased, from appropriating the fund to its own use in disregard of the respective claims of such other creditors who had deferred action to collect their overdue accounts on the strength of the agreement. Smaller War Plants Corp. v. Queen City Lumber Co., 200 Miss. 627, 27 So. 2d 531, 1946 Miss. LEXIS 333 (Miss. 1946).

Oral agreement by adult patient’s father and brother that they would pay patient’s hospital and medical bill if patient died held unenforceable as special promise to answer for another’s debt. Wade v. Long, 168 Miss. 434, 151 So. 564, 1934 Miss. LEXIS 338 (Miss. 1934).

Where defendant orally promised plaintiff that if plaintiff would furnish certain third parties with goods she would see her paid, the promise was within the statute of frauds. Wray v. Cox, 86 Miss. 638, 38 So. 344, 1905 Miss. LEXIS 40 (Miss. 1905).

16. — Collateral obligation.

If party to whom consideration moves becomes personally liable for debt, another’s promise to pay it, though made at same time, and upon same consideration, is “collateral undertaking” within statute. Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599, 1931 Miss. LEXIS 161 (Miss. 1931).

Defendant contractor’s promise to plaintiff subcontractor was unenforceable pursuant to the statute of frauds, Miss. Code Ann. §15-3-1, as any promise by the contractor to pay a second subcontractor’s debt was a collateral obligation subject to the statute of frauds; because plaintiff subcontractor was not harmed by relying on the contractor’s alleged promise to satisfy the second subcontractor’s debt, equitable estoppel was not applicable. McLane Servs. v. Alstom Power, Inc., 2006 U.S. Dist. LEXIS 39973 (S.D. Miss. June 5, 2006).

If person making promise enters into original obligation, statute of frauds does not apply, and if he enters into collateral obligation, it does. Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599, 1931 Miss. LEXIS 161 (Miss. 1931).

17. —Consideration.

In an action on an open account wherein it was alleged that the plaintiff had agreed with a third party, which was indebted to the defendants in an amount in excess of the account, to transfer the defendants’ account and to look to the third party for payment, the contract of substitution, if consummated, constituted a novation, and it was not necessary for the third party to sign a writing for the purpose of showing consideration. Peaslee Gaulbert Paint & Varnish Co. v. Lumpkin, 238 Miss. 637, 119 So. 2d 772, 1960 Miss. LEXIS 448 (Miss. 1960).

Where the assumption is simultaneous with the creation of the debt, the test of liability is whether the person who received the consideration was or was not bound. Bloom v. McGrath & Compton, 53 Miss. 249, 1876 Miss. LEXIS 61 (Miss. 1876).

The receipt or nonreceipt of the consideration by the party promising does not determine, in every case, whether the promise be within or without the statute, but the question remains whether he assumed an independent obligation or whether responsibility be contingent. Olive v. Lewis, 45 Miss. 203, 1871 Miss. LEXIS 69 (Miss. 1871).

18. —Consideration or benefit flowing to promisor.

The agreement of an employer to pay for the debt, default, or miscarriage of his employee failed not only for want of consideration but also because it was not in writing. Forrest County Cooperative Asso. v. McCaffrey, 253 Miss. 486, 176 So. 2d 287, 1965 Miss. LEXIS 1007 (Miss. 1965).

Oral modification of contract between principal contractor and subcontractor, whereby principal contractor guaranteed payment of premiums on subcontractor’s liability insurance in consideration of agreement that they should be paid out of monthly earnings, did not violate statute of frauds, since he was binding himself to answer in a special manner for his own debt. Hartford Acci. & Indem. Co. v. Hewes, 193 Miss. 850, 11 So. 2d 309, 1943 Miss. LEXIS 11 (Miss. 1943).

Oral agreement of second mortgagee that if mortgagor would pay part of indebtedness secured by first trust deed, and if third party would advance remainder of indebtedness to prevent foreclosure of first trust deed, third party should have first lien on land covered, held valid and binding. Taylor v. Phillips, 182 Miss. 539, 181 So. 855, 1938 Miss. LEXIS 192 (Miss. 1938).

Alleged oral promise of president of lessor of golf course to pay laborers and materialmen who contracted with lessee to make repairs and improvements was void, since it was promise to answer for debt or miscarriage of another person which promise had to be in writing. Wenger v. First Nat'l Bank, 174 Miss. 311, 164 So. 229, 1935 Miss. LEXIS 71 (Miss. 1935).

Entries showing goods were charged to tenant could be explained by showing original agreement for sale on credit to landlord; oral agreement to sell goods on credit to landlord for himself and tenant, but to enter charges against tenant, made landlord primarily liable and did not violate statute of frauds. Benson v. Berry-Dampeer Co., 158 Miss. 237, 130 So. 157, 1930 Miss. LEXIS 40 (Miss. 1930).

Promise to answer for another’s debt or default supported by independent consideration flowing to promisor is not within statute; statute does not apply to novation. True-Hixon Lumber Co. v. McDonough, 154 Miss. 720, 123 So. 855, 1929 Miss. LEXIS 181 (Miss. 1929).

Agreement to pay for cars furnished by railroad to third party for promisor, if destroyed by fire, held not within statute. Home Ins. Co. v. Moore & Rawls, 151 Miss. 189, 117 So. 524, 1928 Miss. LEXIS 293 (Miss. 1928).

Promise of vendor’s agent to purchaser to pay taxes out of purchase money received from purchaser held not promise to answer for debt or default or miscarriage of another. Palmer v. Bridges, 151 Miss. 12, 117 So. 328, 1928 Miss. LEXIS 272 (Miss. 1928).

Performance of duty of third person involving only application of funds or discharge of duty owing by promisor is not within statute. Palmer v. Bridges, 151 Miss. 12, 117 So. 328, 1928 Miss. LEXIS 272 (Miss. 1928).

Agreement of owner of building to become liable as surety for material furnished contractor is within statute. Vicksburg Mfg. & Supply Co. v. J. H. Jaffray Constr. Co., 94 Miss. 282, 49 So. 116, 1908 Miss. LEXIS 57 (Miss. 1908).

Agreement of traveling salesman to pay 50 per cent of losses on customers dealt with by him, being part of his contract of employment, is not within statute. Meyer-Bridges Co. v. Badeau, 90 Miss. 27, 43 So. 609, 1907 Miss. LEXIS 78 (Miss. 1907).

Where a debtor conveyed his stock of goods in consideration of a promise of the buyer to pay certain of the debtor’s debts, the promise is not within the statute of frauds. Wear & Boogher Dry Goods Co. v. Kelly, 84 Miss. 236, 36 So. 258, 1904 Miss. LEXIS 34 (Miss. 1904).

A promise made to a debtor to pay a debt which he owes to a third person is not within the statute. Ware v. Allen, 64 Miss. 545, 1 So. 738, 1886 Miss. LEXIS 106 (Miss. 1886).

Where the vendee of land agreed to pay a part of the purchase-money to a creditor of the vendor, the agreement is, not to pay the debt of another, but to pay his own debt to a person other than his own creditor, and it is not within the statute. Lee v. Newman, 55 Miss. 365, 1877 Miss. LEXIS 143 (Miss. 1877).

19. —Promise to indemnify surety.

Oral promise to reimburse plaintiff as surety on bond of defendant’s father for any loss he might incur by reason of his suretyship held within statute. Craft v. Lott, 87 Miss. 590, 40 So. 426, 1905 Miss. LEXIS 208 (Miss. 1905).

An oral promise to indemnify a person for becoming surety on another’s bail bond is within the statute. May v. Williams, 61 Miss. 125, 1883 Miss. LEXIS 84 (Miss. 1883).

20. Agreement upon consideration of marriage.

Special chancellor committed manifest error and was clearly erroneous in dismissing a former wife’s contempt action against her former husband because the parties’ agreement and the final decree of divorce complied with the writing and signature requirements of the statute of frauds; the agreement was an enforceable contract that satisfied the statute of frauds because the husband signed the agreement, and the agreement was confirmed in the judgment Jones v. Jones, 239 So.3d 1091, 2018 Miss. App. LEXIS 106 (Miss. Ct. App. 2018).

Oral agreement of prospective husband to renounce rights in realty of prospective bride is void. Pardue v. Ardis, 101 Miss. 884, 58 So. 769, 1912 Miss. LEXIS 22 (Miss. 1912).

An agreement to convey, in consideration of marriage, a tract of land of a certain value, is void under the statute, where the promisor has four tracts of that value, and the writing contains nothing to identify the one referred to, except that it was to be chosen by the promisee, although the marriage is consummated on the faith of the promise. Cole v. Cole, 99 Miss. 335, 54 So. 953, 1910 Miss. LEXIS 30 (Miss. 1910).

An agreement is not within the statute, as upon consideration of marriage, where it is made after the contract to marry has become binding, though it is in contemplation of marriage. Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140, 1904 Miss. LEXIS 8 (Miss. 1904).

An agreement made in contemplation of marriage after the contract to marry has become binding is not an agreement in consideration of marriage within the meaning of this section [Code 1942, § 264]. Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140, 1904 Miss. LEXIS 8 (Miss. 1904).

21. Sale or lease of land, generally.

Chancellor property dismissed purchasers’ breach of contract claim because no writing memorialized the purported contract that they alleged had been breached. Elchos v. Haas, 178 So.3d 1183, 2015 Miss. LEXIS 504 (Miss. 2015).

Appellate court affirmed the grant of summary judgment in favor of defendant as there was no intent to form a joint venture to buy property by defendant and plaintiff, and thus, Miss. Code Ann. §15-3-1(c) required a written document to transfer an interest in land which did not exist here. Roffman v. Wilson, 914 So. 2d 279, 2005 Miss. App. LEXIS 783 (Miss. Ct. App. 2005).

The principal purpose of the statute of frauds is to require the contracting parties to reduce to writing the specific terms of their contract, especially an agreement affecting lands for more than one year, and thus to avoid dependence on the imperfect memory of the contracting parties, after the passage of time, as to the terms of the contract. Sharpsburg Farms, Inc. v. Williams, 363 So. 2d 1350, 1978 Miss. LEXIS 2205 (Miss. 1978).

A contract to furnish sand is not one pertaining to the sale of lands. Morgan v. Jackson Ready-Mix Concrete, 247 Miss. 863, 157 So. 2d 772, 1963 Miss. LEXIS 365 (Miss. 1963).

The defense of the statute is personal and may not be raised by a third party. Davis v. Stegall, 246 Miss. 593, 151 So. 2d 813, 1963 Miss. LEXIS 485 (Miss. 1963).

The statute [Code 1942, § 264] does not make a contract void but only allows the defense to its enforcement. Davis v. Stegall, 246 Miss. 593, 151 So. 2d 813, 1963 Miss. LEXIS 485 (Miss. 1963).

An option to purchase land is required to be in writing. Nason v. Morrissey, 218 Miss. 601, 67 So. 2d 506, 1953 Miss. LEXIS 576 (Miss. 1953).

Memorandum agreement for sale of land which does not expressly promise merely quitclaim deed raises presumption that warranty deed was intended, as it is general usage and custom of purchasers to demand and receive warranty deeds. Jones v. Hickson, 204 Miss. 373, 37 So. 2d 625, 1948 Miss. LEXIS 376 (Miss. 1948).

The payment of the purchase price for land, or the agreed rental therefor, does not eliminate the need for a proper written instrument. Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So. 2d 100, 1947 Miss. LEXIS 399 (Miss. 1947).

Defendant held estopped from asserting invalidity of his oral agreement to pay materialman where because of such agreement materialman failed to protect his lien. Delta Lumber Co. v. Wall, 119 Miss. 350, 80 So. 782, 1919 Miss. LEXIS 9 (Miss. 1919).

Where an offer to purchase land presents two alternative propositions a mere acceptance of the offer without specifying which proposition is accepted does not create a contract which can be specifically enforced. Welsh v. Williams, 85 Miss. 301, 37 So. 561, 1904 Miss. LEXIS 136 (Miss. 1904).

Two persons, each owner of land under bond for title, cannot exchange the tracts by changing possession and delivering their respective title-bonds to each other. Connor v. Tippett, 57 Miss. 594, 1880 Miss. LEXIS 8 (Miss. 1880).

22. —Applicability.

Any modification of a contract that comes under the statute of frauds must be in writing, including modifications to contract for the purchase of land. Favre Prop. Mgmt., LLC v. Cinque Bambini, 863 So. 2d 1037, 2004 Miss. App. LEXIS 32 (Miss. Ct. App. 2004).

The statute of frauds pertaining to a claim for an interest in real property does not apply as a bar to a suit seeking adjudication of the existence of a partnership and for an accounting, since the partnership was a fiduciary relationship. Kelly v. Windham, 204 So. 2d 477, 1967 Miss. LEXIS 1206 (Miss. 1967).

The statute [Code 1942, § 264] applies to the sale of realty at auction. Though the auctioneer act as the agent of both parties, seller and buyer, yet, in order to make the sale valid, the auctioneer or his clerk must, at the time of the sale, make a sufficient memorandum. Jelks v. Barrett, 52 Miss. 315, 1876 Miss. LEXIS 216 (Miss. 1876).

Parol partition of lands between co-owners, followed by occupancy in severalty, is valid. Pipes v. Buckner, 51 Miss. 848, 1876 Miss. LEXIS 150 (Miss. 1876); Wildey v. Bonney's Lessee, 31 Miss. 644, 1856 Miss. LEXIS 135 (Miss. 1856).

And it does not embrace cases of trust. Jones v. M'Dougal, 32 Miss. 179 (Miss. 1856).

This part [Code 1942, § 264] of the statute has reference alone to the sale of lands, and not to a contract to purchase by one person for the benefit of another. Soggins v. Heard, 31 Miss. 426, 1856 Miss. LEXIS 90 (Miss. 1856).

The statute [Code 1942, § 264] does not apply to a contract for the parties to become jointly interested in a purchase about to be made. Evans v. Green, 23 Miss. 294, 1852 Miss. LEXIS 205 (Miss. 1852).

A sheriff’s sale is not within the statute. He is the agent of both parties, and his memorandum is sufficient to take the case out of it. Endicott v. Penny, 22 Miss. 144, 1850 Miss. LEXIS 114 (Miss. 1850).

23. —Necessary terms.

The chancellor properly refused to order specific performance of a contract for the sale of land where the description within the contract was ambiguous, referring to both the east-west and north-south dimensions of the land in approximate terms, and referring to no monument establishing the northern boundary of the lot in question, and where both the plaintiff’s interpretation and the defendant’s interpretation of the lot dimensions from the description were too vague and uncertain to justify a judicial sanction. McCarty v. Lawrence, 231 So. 2d 775, 1970 Miss. LEXIS 1602 (Miss. 1970).

Memorandum of agreement to sell realty interest, to satisfy this section [Code 1942, § 264] must contain the substantial terms of the contract expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence, and when reference is made in the memorandum to another writing, it must be so clear as to prevent the possibility of one paper being substituted for another. Hamilton v. Morrison, 146 F.2d 533, 1945 U.S. App. LEXIS 3506 (5th Cir. Miss. 1945).

One of the necessary terms of contract to sell interest in land is a sufficient description of the land. Hamilton v. Morrison, 146 F.2d 533, 1945 U.S. App. LEXIS 3506 (5th Cir. Miss. 1945).

An agreement to convey, in consideration of marriage, a tract of land of a certain value, is void under the statute, where the promisor has four tracts of that value, and the writing contains nothing to identify the one referred to, except that it was to be chosen by the promisee, although the marriage is consummated on the faith of the promise. Cole v. Cole, 99 Miss. 335, 54 So. 953, 1910 Miss. LEXIS 30 (Miss. 1910).

24. —Oral promises and contracts.

In an action by the buyers for specific performance of a real estate contract, the court rejected the sellers’ contention that the statute of frauds barred relief because the buyers failed to submit a written contract within 30 days after an oral agreement for the purchase of the property was read into the record in court, as a written contract had already been entered into by the parties that contained sufficient terms to withstand the statute of frauds, and the oral agreement merely contained elaborations on the contract. Brown v. Thomas, 757 So. 2d 1091, 2000 Miss. App. LEXIS 214 (Miss. Ct. App. 2000).

In action by plaintiff timber company against defendant timber company alleging that defendant fraudulently induced plaintiff to purchase certain property by orally promising that defendant, which had previously acquired timber rights on such property, would sell or trade such timber to plaintiff after plaintiff subsequently purchased such property, plaintiff’s fraudulent inducement claim was barred even if it could have been raised under state’s general statute of frauds, because alleged promise to convey timber rights was contract for sale of “goods” subject to statute of frauds. T.K. Stanley, Inc. v. Scott Paper Co., 793 F. Supp. 707, 1992 U.S. Dist. LEXIS 9416 (S.D. Miss. 1992), aff'd, 5 F.3d 529, 1993 U.S. App. LEXIS 24816 (5th Cir. Miss. 1993).

In an action to recover the purchase price for the sale of borrow material from plaintiff seller’s land, the oral contract was governed by the statute of frauds affecting the transfer of an interest in land. Bell v. Hill Bros. Constr. Co., 419 So. 2d 575, 1982 Miss. LEXIS 2142 (Miss. 1982).

Code 1942, § 264 does not require a cancellation of a lease to be in writing. Perkins v. Blackledge, 285 So. 2d 761, 1973 Miss. LEXIS 1297 (Miss. 1973).

An oral agreement on the part of mother that if her daughter would return to Mississippi and there operate a flower shop and discharge the construction lien thereon she would convey the flower shop property to the daughter was unenforceable under the statute of frauds. Fletcher v. Nemitz, 186 So. 2d 232, 1966 Miss. LEXIS 1300 (Miss. 1966).

Where a landowner expressly consents or agrees that the building erected on his land does not become realty but remains the property of the person annexing it, the agreement may be oral and is not within the statute of frauds since this agreement involves no sale of interest of land. Connolly v. McLeod, 212 Miss. 133, 52 So. 2d 473, 1951 Miss. LEXIS 435 (Miss. 1951).

Contracts by parol for land are generally regarded as voidable merely, and when vendor is able and willing to perform, vendee cannot recover what he has paid if vendee avoids contract. Vanlandingham v. Jenkins, 207 Miss. 882, 43 So. 2d 578, 1949 Miss. LEXIS 399 (Miss. 1949).

Earnest money paid by vendee on making of oral contract for purchase of realty is liquidated damages and not a penalty, and if vendor is willing and able to perform contract it cannot be recovered back on repudiation of transaction by vendee. Vanlandingham v. Jenkins, 207 Miss. 882, 43 So. 2d 578, 1949 Miss. LEXIS 399 (Miss. 1949).

Purchaser under parol contract for sale of land may recover any amounts paid vendor as for money had and received, when vendor refuses to complete transaction by execution of necessary deed, but he cannot sue for specific performance, since the oral contract is unenforceable under statute of frauds. Hardy v. Candelain, 204 Miss. 328, 37 So. 2d 360, 1948 Miss. LEXIS 370 (Miss. 1948).

A suit to establish a resulting trust arising out of the conveyance of land to a third party pursuant to an oral agreement whereby one person was to advance all funds necessary to purchase the land and another was to repay him half of the amount, each to acquire an undivided one-half interest, with an understanding that the deed would be executed to such third party to be held by her until the loan was repaid, was not an effort to enforce an oral contract for the purchase of land. Shepherd v. Johnston, 201 Miss. 99, 28 So. 2d 661, 1947 Miss. LEXIS 374 (Miss. 1947).

This section [Code 1942, § 264] did not preclude relief to the complainant by way of a conveyance of the land involved where a money lender paid the purchase price of land on behalf of the complainants who were then lessees in possession thereof, and took title thereof in his own name as security for the purchase price under an oral agreement to convey it to the complainant upon payment of the purchase price. Tanous v. White, 186 Miss. 556, 191 So. 278, 1939 Miss. LEXIS 243 (Miss. 1939).

Where the executrix under the will of the grantor in a deed of trust, which will devised the land secured by such deed of trust to the executrix and two minor children, and vested the executrix with power to convey the land by deed or otherwise, entered into an oral agreement with a holder of bonds issued under such deed of trust, to consent to a foreclosure thereof, and purchase of the property at such foreclosure sale by the bondholder, the oral agreement was not within the purview of the statute of frauds in view of the fact that such agreement was fully performed by the bondholder by advancing the tax redemption money and a loan to the executrix, the institution and completion of the foreclosure proceeding, consented to by all of the parties to the agreement, and the delivery of possession of the land by the executrix to the purchaser at such sale. Wirtz v. Gordon, 187 Miss. 866, 184 So. 798, 1938 Miss. LEXIS 321 (Miss. 1938).

A prenuptial parol contract as to the rights of the parties about to be married, in the real estate of each other, is not enforceable. Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140, 1904 Miss. LEXIS 8 (Miss. 1904).

A lender of money to a borrower to pay off a mortgage on his homestead, on his verbal promise to secure the debt by a deed of trust on the land, cannot enforce the verbal promise, nor will he be subrogated to the right of the mortgagee whose mortgage was satisfied. Berry v. Bullock, 81 Miss. 463, 33 So. 410, 1902 Miss. LEXIS 178 (Miss. 1902).

An agreement between plaintiff and defendant in an action of ejectment, by which judgment was entered for the plaintiff for the whole of the land sued for, but the execution was to be restricted to a part, is not within the statute. Natchez v. Vandervelde, 31 Miss. 706, 1856 Miss. LEXIS 144 (Miss. 1856).

25. —Abstract of title.

Where contract for sale and purchase of land contains stipulation obligating vendor to furnish abstract of his title to vendee, but no particular time is fixed in which it is to be furnished, implication arises that abstract is to be furnished within reasonable time in view of all circumstances, and compliance by vendor with this implication is obligatory. Vanlandingham v. Jenkins, 207 Miss. 882, 43 So. 2d 578, 1949 Miss. LEXIS 399 (Miss. 1949).

When vendor has reason to believe that abstract of his title will not be required at all by vendee, he is entitled to reasonable time for furnishing it when thereafter demanded, and vendee has no right to rescind contract to purchase without giving reasonable time for the furnishing of abstract of title. Vanlandingham v. Jenkins, 207 Miss. 882, 43 So. 2d 578, 1949 Miss. LEXIS 399 (Miss. 1949).

26. —Latent defects.

Extrinsic evidence may be used to repair a latent defect in a description to land if the clue to certainty, and thus avoidance of the statute of frauds, is contained in the writings. Frostad v. Kitchens, 377 F.2d 475, 1967 U.S. App. LEXIS 6466 (5th Cir. Miss. 1967).

Memorandum agreement for sale of 120 acres, “Old Hatcher Place” is not void for failure to meet requirements of statute of frauds, since omission of state and county is latent defect which may be repaired by extrinsic evidence where there are other means of local identification. Jones v. Hickson, 204 Miss. 373, 37 So. 2d 625, 1948 Miss. LEXIS 376 (Miss. 1948).

27. —Mortgages.

Summary judgment was properly awarded to a mortgagee in a mortgagor’s action for wrongful foreclosure because an alleged agreement between the mortgagor and a bank teller that the mortgagor’s two payments on the loan would stop foreclosure proceedings was barred by the statute of frauds; there was no additional consideration for the alleged forbearance by the mortgagee. Thompson v. First Am. Nat'l Bank, 19 So.3d 784, 2009 Miss. App. LEXIS 214 (Miss. Ct. App. 2009).

In a suit by grantors for cancellation of deed alleged to have been given as a mortgage, where the deed was in fact a mortgage, and not a sale with all obligation to resell the land reconveyed, the grantee could not use the statute of frauds as a defense and equity had the power to cancel the deed, as well as a subsequent deed from the grantee to a person not innocent purchaser for value. Emmons v. Emmons, 217 Miss. 594, 64 So. 2d 753, 1953 Miss. LEXIS 467 (Miss. 1953).

A lender of money to a borrower to pay off a mortgage on his homestead, on his verbal promise to secure the debt by a deed of trust on the land, cannot enforce the verbal promise, nor will he be subrogated to the right of the mortgagee whose mortgage was satisfied. Berry v. Bullock, 81 Miss. 463, 33 So. 410, 1902 Miss. LEXIS 178 (Miss. 1902).

28. —Miscellaneous.

Trail court did not err by rejecting a seller’s notion that a writing was merely an undelivered gift inter vivos because the purchaser could have asserted equity rights, certainly more than a mere “dispute or controversy” between himself and the seller over the property; the seller’s own hand-picked wording in the writing acknowledged that the contract was made after the seller received good and valuable consideration. Swartzfager v. Saul, 213 So.3d 55, 2017 Miss. LEXIS 67 (Miss. 2017).

Trial court properly rule for a purchaser in his action seeking damages and specific performance because the seller’s writing, along with the purchaser’s mapped out description, constituted a valid, enforceable agreement for the sale of property under the Statute of Frauds; the seller’s writing did not fail to include a price to be paid but did not include the price already paid, and consideration had already changed hands, specifically the purchaser’s forbearance of any claim to the property. Swartzfager v. Saul, 213 So.3d 55, 2017 Miss. LEXIS 67 (Miss. 2017).

Where defendant, an industrial plant seller, had ongoing discussions with plaintiff potential purchasers after the potential purchasers’ closing date had passed, and there was no evidence that an agreement was actually reached as to a change in financing, a change in financing was a substantial change that could not be enforced under Miss. Code Ann. §15-3-1(c)’s statute of frauds, and thus, when the seller sold the property to different buyer, the seller was granted summary judgment on the potential purchaser’s breach of contract claim. Fibre Corp. v. GSO Am., Inc., 2005 U.S. Dist. LEXIS 37906 (S.D. Miss. Dec. 8, 2005).

In an action by a homeowners’ association to enforce a lien on defendant’s property after defendant had failed to pay an annual assessment to the association for maintenance of common areas, the chancery court properly ruled that the assessment was a covenant running with the land and that defendant was liable, despite defendant’s contentions that the action was barred by the statute of frauds since there was no signed writing binding defendant to pay the fee, and since the amount of the assessment was not set forth in the deed; the deed provided that defendant was required to pay an assessment, and defendant could not claim the benefit conferred by the deed and renounce the covenant. The statute of frauds has no application to a covenant running with the land even though the covenant imposes a burden on the land. William W. Bond, Jr. & Associates, Inc. v. Lake O'The Hills Maintenance Asso., 381 So. 2d 1043, 1980 Miss. LEXIS 1919 (Miss. 1980).

Where a brother, who had no written authorization to represent his sister, without mentioning the sister’s name entered into a contract to sell to another a parcel of the sister’s land, the contract was not enforceable as against the sister. Leavenworth v. Lloyd, 229 Miss. 880, 92 So. 2d 224, 1957 Miss. LEXIS 337 (Miss. 1957).

Signed receipts indicating a sale for $8,000, $20 cash and balance due at a named date, of “1/4 royalty under 113 acres of land” in a named county, did not constitute a sufficient memorandum to satisfy this section [Code 1942, § 264] as neither the land nor the kind of royalty was described, and fact that purchaser in seller’s presence folded the first receipt and transfer form together and kept them was unavailing. Hamilton v. Morrison, 146 F.2d 533, 1945 U.S. App. LEXIS 3506 (5th Cir. Miss. 1945).

Land contract, though within statute of frauds and unenforceable, not void; until its affirmance by vendor of land contract within statute of frauds, relation of parties, that of vendor and purchaser, and not that of landlord and tenant; vendor, disaffirming land contract within statute of frauds, not entitled to recover from purchaser for use and occupation of premises for period between making of contract and disaffirmance. Harvey v. Daniels, 133 Miss. 40, 96 So. 746, 1923 Miss. LEXIS 109 (Miss. 1923).

A written agreement for the sale of land is enforceable against a vendor who signed it, though neither the agreement nor any contract to pay the price was signed by the vendee, where such vendee afterwards offers in writing to perform the contract. The offer makes the contract mutual, and it cannot be said that there is a want of consideration. Peevey v. Haughton, 72 Miss. 918, 17 So. 378, 1895 Miss. LEXIS 14 (Miss. 1895).

29. —Part performance of contract of sale.

Neither part performance of an oral contract with respect to the sale of land, nor the expenditure of money in reliance upon it, are sufficient to take it out of the statute of frauds. Reid v. Horne, 187 So. 2d 316, 1966 Miss. LEXIS 1347 (Miss. 1966).

Under an oral contract for the cutting and hauling of pulpwood to the railroad and loading the same on cars for shipment to defendants, with a guarantee to the plaintiff of employment under the contract for a period of not less than two years, the supplying of pulpwood for a period of four months did not constitute such part performance as to take the case out of the operation of statute of fraud. Poole v. Johns-Manville Products Corp., 210 Miss. 528, 49 So. 2d 891, 1951 Miss. LEXIS 291 (Miss. 1951).

Statute of frauds was inapplicable to preclude enforcement of a will executed in complainant’s favor pursuant to an oral agreement to make such will in return for the caring of deceased by complainant, even though the agreement and the will contemplated the transfer of land, where the complainant performed her part of the agreement but the deceased subsequently executed a new will leaving all his property to another, since the oral agreement was completely executed. Johnston v. Tomme, 199 Miss. 337, 24 So. 2d 730, 1946 Miss. LEXIS 202 (Miss. 1946).

Part performance of oral contract for sale of land does not take case out of statute requiring such contracts to be in writing. Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 1946 Miss. LEXIS 201 (Miss. 1946); Milam v. Paxton, 160 Miss. 562, 134 So. 171, 1931 Miss. LEXIS 194 (Miss. 1931).

Parol promise that deceased’s realty and personalty would some day belong to the promisees if they continued to look after deceased’s property, was unenforceable under the statute of frauds, where the promisees were never placed in possession of such property, irrespective of whether the transfer of the property was to be by will, deed or otherwise, and regardless of whether the promisees performed their part of the arrangement. Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 1946 Miss. LEXIS 201 (Miss. 1946).

Where parol agreement that deceased’s property will someday belong to certain persons if they continue looking after such property, includes both realty and personalty, the transaction is not separable in respect to enforceability under statute of frauds. Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 1946 Miss. LEXIS 201 (Miss. 1946).

Unpaid purchase money gives rise to enforceable equitable vendor’s lien independent of contract. Haden v. Sims, 168 Miss. 64, 150 So. 210, 1933 Miss. LEXIS 167 (Miss. 1933).

Provision of contract that purchaser bought on conditions announced by auctioneer held not to entitle vendor to specific performance on parol showing that land which vendor could not convey was excepted by auctioneer. Taylor v. Sayle, 163 Miss. 822, 142 So. 3, 1932 Miss. LEXIS 91 (Miss. 1932).

In the absence of writing identifying land, stating purchase price and terms of payment, vendee under oral contract was not entitled to specific performance. Milam v. Paxton, 160 Miss. 562, 134 So. 171, 1931 Miss. LEXIS 194 (Miss. 1931).

Part performance will not take parol sale of lands out of statute of frauds; exceptions to statute of frauds on account of part performance will not be ingrafted on statute; fact that vendor fraudulently evaded part of agreement to reduce part of contract to writing is not sufficient to take case out of statute. Howie v. Swaggard, 142 Miss. 409, 107 So. 556, 1926 Miss. LEXIS 99 (Miss. 1926).

Acceptance of part of purchase price does not render valid parol contract for sale of land, nor estop acceptor from refusing to carry out contract. Howie v. Swaggard, 142 Miss. 409, 107 So. 556, 1926 Miss. LEXIS 99 (Miss. 1926).

The statute does not prevent recovery from the vendee of land, who has taken possession under a conveyance for part cash and part to be paid in installments, to secure which a lien is reserved on the unpaid purchase money, although the vendee may have signed no written promise to pay. Washington v. Soria, 73 Miss. 665, 19 So. 485, 1896 Miss. LEXIS 190 (Miss. 1896).

30. —Promise to reconvey.

Oral agreement by purchaser of land at foreclosure sale, to reconvey property to former owner upon payment of purchase price plus interest within 90 days of sale, was unenforceable option contract under statute of frauds; former owner failed to satisfy burden of proving exception to statute of frauds. Dew v. Langford, 666 So. 2d 739, 1995 Miss. LEXIS 594 (Miss. 1995).

An oral agreement between the grantor and grantee to cancel a deed does not satisfy the statute of frauds even though an attorney purporting to represent both parties enters a notation on the margin of the record to the effect that the deed is so cancelled. Wilson v. Combs, 203 Miss. 286, 33 So. 2d 830, 1948 Miss. LEXIS 266 (Miss. 1948).

An oral executory promise by grantee to reconvey land to grantors if latter not satisfied is void under the statute of frauds. Carter v. Dabbs, 196 Miss. 692, 18 So. 2d 747, 1944 Miss. LEXIS 250 (Miss. 1944).

Alleged oral agreement between former owner of tax forfeited land and holders of patents thereto from state, that the latter would reconvey to him upon payment by him of the moneys expended for the patents, was not effective to create a constructive trust and was unenforceable under this section [Code 1942, § 264]. Lewis v. Williams, 186 Miss. 701, 191 So. 479, 1939 Miss. LEXIS 256 (Miss. 1939).

An oral agreement between the parties to reduce the parol promise to reconvey to writing is void and does not take the case out of the statute. Lewis v. Williams, 186 Miss. 701, 191 So. 479, 1939 Miss. LEXIS 256 (Miss. 1939).

Nor can an oral contract to sell or reconvey, or for the sale of land, be specifically enforced in a court of equity, even though it be partially performed. Lewis v. Williams, 186 Miss. 701, 191 So. 479, 1939 Miss. LEXIS 256 (Miss. 1939).

Oral agreement of grantee to make reconveyance of land conveyed held within statute of frauds and unenforceable. Palmer v. Spencer, 161 Miss. 561, 137 So. 491, 1931 Miss. LEXIS 285 (Miss. 1931).

Parol agreement to reconvey land bid in at sale under deed of trust is within the statute. Campbell v. Bright, 87 Miss. 443, 40 So. 3, 1905 Miss. LEXIS 160 (Miss. 1905).

A promise to reconvey lands is within the statute, whether made before or after the conveyance to the promisor. Clearman v. Cotton, 66 Miss. 467, 6 So. 156, 1889 Miss. LEXIS 129 (Miss. 1889).

A contract by a judgment-creditor who has purchased the land of his debtor at execution-sale, that the latter may redeem the land by payment of the debt, is within the statute. Rutland v. Brister, 53 Miss. 683, 1876 Miss. LEXIS 133 (Miss. 1876).

31. —Boundary and party wall agreements.

Oral agreement, under which adjacent owners erected a two story building with party wall on ground floor and common hallway on second story, did not create an easement by grant. Binder v. Weinberg, 94 Miss. 817, 48 So. 1013, 1909 Miss. LEXIS 363 (Miss. 1909).

A parol agreement between coterminous owners, fixing an uncertain and disputed boundary between their lands, followed by possession, is valid and binding. Archer v. Helm, 69 Miss. 730, 11 So. 3, 1892 Miss. LEXIS 1 (Miss. 1892).

It is competent to establish boundaries by parol, yet the establishment of a boundary between two government survey subdivisions in conflict with the official survey cannot be by parol. It is within the statute. May v. Baskin, 20 Miss. 428, 1849 Miss. LEXIS 54 (Miss. 1849).

32. —Licenses.

An oral agreement allegedly granting one party an “irrevocable license” to construct and maintain a road across the lands of another is unenforceable by reason of the statute of frauds. Reid v. Horne, 187 So. 2d 316, 1966 Miss. LEXIS 1347 (Miss. 1966).

An oral grant of a license to cut and remove timber is not one of an interest in realty within the statute of frauds. Towles v. Hodges, 235 Miss. 258, 108 So. 2d 884, 1959 Miss. LEXIS 423 (Miss. 1959).

A verbal agreement to convey land to a county for school purposes, by which third parties are induced to erect a schoolhouse thereon, is an irrevocable license for the purpose for which it was made as long as the house is used for the purpose specified. Agnew v. Jones, 74 Miss. 347, 23 So. 25, 1896 Miss. LEXIS 186 (Miss. 1896).

The statute [Code 1942, § 264] does not prevent a defendant, sued in trespass, from showing a parol license. New Orleans, J. & G. N. R. Co. v. Moye, 39 Miss. 374, 1860 Miss. LEXIS 61 (Miss. 1860).

33. —Timber contracts.

Oral contract to supply timber to paper mill was contract for sale of timber not a brokerage contract and was therefore unenforceable due to lack of writing evidencing contract; agreement did not fall within any exceptions to UCC Statute of Frauds. Futch v. James River-Norwalk, Inc., 722 F. Supp. 1395, 1989 U.S. Dist. LEXIS 12113 (S.D. Miss.), aff'd, 887 F.2d 1085, 1989 U.S. App. LEXIS 15434 (5th Cir. Miss. 1989).

An oral contract for the sale of standing timber is unenforceable. Dobson v. Masonite Corp., 359 F.2d 921, 1966 U.S. App. LEXIS 6375 (5th Cir. Miss. 1966).

An agreement for services in cutting and clearing land of timber is not within the statute of frauds. Dobson v. Masonite Corp., 359 F.2d 921, 1966 U.S. App. LEXIS 6375 (5th Cir. Miss. 1966).

The question of whether an oral contract for clearing 9,200 acres of land of all oak trees whether dead, diseased, or merchantable, was an agreement for the sale of timber or one for the performance of personal services was a question of fact to be determined by the jury. Dobson v. Masonite Corp., 359 F.2d 921, 1966 U.S. App. LEXIS 6375 (5th Cir. Miss. 1966).

An oral grant of a license to cut and remove timber is not one of an interest in realty within the statute of frauds. Towles v. Hodges, 235 Miss. 258, 108 So. 2d 884, 1959 Miss. LEXIS 423 (Miss. 1959).

One who merely sells property to which he has no title is not liable for trespass committed by his vendee and therefore purchaser of standing timber under oral agreement was not liable for trespass in cutting the timber committed by person to whom purchaser sold the standing timber by oral agreement. Hudson v. Landers, 215 Miss. 447, 61 So. 2d 312, 1952 Miss. LEXIS 584 (Miss. 1952).

Oral contract for sale of growing timber is within statute of frauds and is merely license which authorizes entry upon land and cutting and removal of timber thereon, but license is revocable at will of seller. Rowan v. Rosenblatt, 206 Miss. 259, 39 So. 2d 873, 1949 Miss. LEXIS 259 (Miss. 1949).

Purchaser of growing timber under oral contract cannot recover damages for loss of profits for alleged breach of contract when owner of timber revokes oral agreement and sells land and uncut timber to another. Rowan v. Rosenblatt, 206 Miss. 259, 39 So. 2d 873, 1949 Miss. LEXIS 259 (Miss. 1949).

Written agreement, unenforceable as conveyance of standing timber, is sufficient to constitute valid license or permit for cutting and removal of timber and when timber is cut into logs for removal from lands, title to logs passes to purchaser, subject to right of seller to enforce lien for purchase money thereon. Dixie Pine Products Co. v. Breland, 205 Miss. 610, 39 So. 2d 265, 1949 Miss. LEXIS 450 (Miss. 1949).

Written agreement for sale of standing timber which does not describe land is unenforceable under statute of frauds after license, or permit, as evidenced by the writing, to cut and remove timber is revoked by seller. Dixie Pine Products Co. v. Breland, 205 Miss. 610, 39 So. 2d 265, 1949 Miss. LEXIS 450 (Miss. 1949).

Contract of sale of standing timber, which is unenforceable under statute of frauds, attaches to trees as chattels as fast as they are severed from realty, and purchaser is entitled to remove them as his own, and owner of land has no right to take the timber without due process of law. Dixie Pine Products Co. v. Breland, 205 Miss. 610, 39 So. 2d 265, 1949 Miss. LEXIS 450 (Miss. 1949).

Purchaser of standing timber who cuts timber before his license or permit for cutting is terminated by revocation or expiration by limitation of time is entitled to reasonable time in which to cut up timber felled and to remove it. Dixie Pine Products Co. v. Breland, 205 Miss. 610, 39 So. 2d 265, 1949 Miss. LEXIS 450 (Miss. 1949).

Contract for purchase of standing timber is within statute. Queen City Hoop Co. v. Barnett, 127 Miss. 66, 89 So. 819, 1921 Miss. LEXIS 208 (Miss. 1921).

But contract for the purchase of all timber on certain land to be cut into logs and delivered by seller at a certain place was not within statute requiring writing. Turner v. Planters' Lumber Co., 92 Miss. 767, 46 So. 399, 1908 Miss. LEXIS 232 (Miss. 1908).

A parol agreement authorizing the cutting of standing timber on lands is within the statute of frauds. A sale of growing timber by parol is a license and authorizes an entry upon the land, which is revocable at the will of the seller. Walton v. Lowrey, 74 Miss. 484, 21 So. 243, 1896 Miss. LEXIS 165 (Miss. 1896).

The term “land” embraces not only the soil, but its natural produce, growing upon and affixed to it; hence a sale of growing timber is within the statute. Harrell v. Miller, 35 Miss. 700, 1858 Miss. LEXIS 74 (Miss. 1858).

34. —Leases.

In suits involving alleged oral agreements assertedly made by agents for the renewal or extension of written leases, the burden of proof is on the person asserting such an agreement not only to establish agency, but he must establish the agent’s authority as well. Stilley v. Illinois C. R. Co., 209 Miss. 414, 47 So. 2d 840, 1950 Miss. LEXIS 406 (Miss. 1950).

The date specified in a mineral lease, not the date of delivery or actual signing by the various owners, is the effective date of the lease. Hughes v. Franklin, 201 Miss. 215, 29 So. 2d 79, 1947 Miss. LEXIS 388 (Miss. 1947).

This section, and not 1930, § 2949, applies to contracts by an attorney in fact for the making of a lease. Hytken v. Bianca, 186 Miss. 323, 186 So. 624, 188 So. 311, 1939 Miss. LEXIS 199 (Miss. 1939).

Under this section [Code 1942, § 264] a lease, if otherwise void, is valid in equity as a contract to make a lease, where the agent’s appointment is in writing. Hytken v. Bianca, 186 Miss. 323, 186 So. 624, 188 So. 311, 1939 Miss. LEXIS 199 (Miss. 1939).

The court is without the power to engraft upon the statute an exception which would exclude from its provisions an oral lease for three years because of money expended on the leased premises by the lessee upon reliance of the oral promise of the lessor. Tanner v. Walsh, 184 Miss. 147, 183 So. 278, 1938 Miss. LEXIS 304 (Miss. 1938).

Where written ten-year lease gave lessee option of renewal for additional five years on same terms, was assigned and lessee’s assignee remained in possession after expiration of original term, exclusion of lease and assignment from evidence in action for rent by lessor’s successor in interest held error, since original parties to lease did not contemplate execution of new lease as necessary for renewal, and therefore original lease included the renewal term as covenant running with the land and satisfied statute of frauds after oral renewal. Economy Stores, Inc. v. Moran, 178 Miss. 62, 172 So. 865, 1937 Miss. LEXIS 202 (Miss. 1937).

Tenant, entering under contract unenforceable under statute of frauds, held to become a tenant from year to year. Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79, 1921 Miss. LEXIS 235 (Miss. 1921).

Appointment of agent executing lease for more than one year must be by deed. Hutchinson v. Platt, 119 Miss. 606, 81 So. 281, 1919 Miss. LEXIS 38 (Miss. 1919).

Surrender of lease and possession by landlord rendered lease having more than year to run a completed, executed contract, unaffected by statute of frauds. Bradbury v. McLendon, 119 Miss. 210, 80 So. 633, 1918 Miss. LEXIS 28 (Miss. 1918).

Mortgagee taking for value without notice held not chargeable with unrecorded assignment of lease. Corinth Bank & Trust Co. v. Wallace, 111 Miss. 62, 71 So. 266, 1916 Miss. LEXIS 241 (Miss. 1916).

Tenant holding under five-year oral agreement was tenant from year to year. Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003, 1915 Miss. LEXIS 18 (Miss. 1915).

One who has verbally leased lands for three years, who intends to enter and cultivate the same, may, before actual entry, execute a valid deed of trust or mortgage upon the crops to be grown during the coming year. Grisham v. Lutric, 76 Miss. 444, 24 So. 169, 1898 Miss. LEXIS 73 (Miss. 1898).

The clause relating to leases has reference to the duration of the term, and not to the time of its commencement. A verbal lease for a term not more than a year is good, even if the term is to begin in the future. McCroy v. Toney, 66 Miss. 233, 5 So. 392, 1888 Miss. LEXIS 95 (Miss. 1888).

A verbal lease of land “for the crop season of 1880,” which might or might not be for more than one year, is not within the statute. John Chaffe & Sons v. Benoit, 60 Miss. 34, 1882 Miss. LEXIS 5 (Miss. 1882).

35. —Contract of employment of agent.

A contract to sell the land of another for a commission is not required to be in writing. Lowe v. Hodges, 726 So. 2d 1289, 1998 Miss. App. LEXIS 1108 (Miss. Ct. App. 1998).

Authority from owner of land in favor of another to sell the same is not required to be in writing, and the expiration date thereof may later be waived by parol or by conduct of the parties. Partee v. Pepple, 197 Miss. 486, 20 So. 2d 73, 1944 Miss. LEXIS 314 (Miss. 1944), but see Mitchell v. Rawls, 493 So. 2d 361, 1986 Miss. LEXIS 2587 (Miss. 1986).

Under this section [Code 1942, § 264] a lease, if otherwise void, is valid in equity as a contract to make a lease, where the agent’s appointment is in writing. Hytken v. Bianca, 186 Miss. 323, 186 So. 624, 188 So. 311, 1939 Miss. LEXIS 199 (Miss. 1939).

However, the appointment of agent executing lease for more than year, must be by deed. Hutchinson v. Platt, 119 Miss. 606, 81 So. 281, 1919 Miss. LEXIS 38 (Miss. 1919).

The statute does not affect an agent’s right to compensation for selling land pursuant to oral instructions. Cook v. Smith, 119 Miss. 375, 80 So. 777, 1919 Miss. LEXIS 6 (Miss. 1919); Hancock v. Dodge, 85 Miss. 228, 37 So. 711, 1904 Miss. LEXIS 121 (Miss. 1904).

A contract that complainant is to find a purchaser for defendant’s land and receive therefor a part of the proceeds of the sale is not a contract for the sale of land, and therefore need not be in writing. Lesley v. Rosson, 39 Miss. 368, 1860 Miss. LEXIS 60 (Miss. 1860).

36. Contract not to be performed within fifteen months, generally.

Appellate court affirmed the grant of summary judgment in favor of defendant because the alleged contract between plaintiff and defendant violated the statute of frauds in Miss. Code Ann. §15-3-1(c) and (d), as it was not in writing, it dealt with the leasing of real estate, and the term of the contract extended for more than 15 months. Glinsey v. Newson, 911 So. 2d 661, 2005 Miss. App. LEXIS 651 (Miss. Ct. App. 2005).

Oral agreement not performable within statutory period is not taken out of the statute by providing that it may be terminated by either party within such period. Stahlman v. National Lead Co., 318 F.2d 388, 1963 U.S. App. LEXIS 5265 (5th Cir. Miss. 1963).

Possibility of performance within 15 months takes an oral contract out of the statute. Morgan v. Jackson Ready-Mix Concrete, 247 Miss. 863, 157 So. 2d 772, 1963 Miss. LEXIS 365 (Miss. 1963).

To bring a particular contract within the statute there must be a negation of the right to perform it within 15 months. United States Finance Co. v. Barber, 247 Miss. 800, 157 So. 2d 394, 1963 Miss. LEXIS 358 (Miss. 1963).

An oral agreement to be performed within the statutory period is not within the statute of frauds although it is a modification of an earlier agreement. Flowood Corp. v. Chain, 247 Miss. 434, 152 So. 2d 915, 1963 Miss. LEXIS 314 (Miss. 1963).

Where the time for performance is not fixed, the contract will not be presumed to be within the statute. Duff v. Snider, 54 Miss. 245, 1876 Miss. LEXIS 26 (Miss. 1876).

37. —Employment.

An oral contract of employment which extends for more than 15 months is subject to the statute of frauds and thus unenforceable. Floyd v. Segars, 572 F.2d 1018, 1978 U.S. App. LEXIS 11278 (5th Cir. Miss. 1978).

Contracts of present employment and of indefinite duration are not within this provision, being terminable at any time and therefore susceptible of performance within 15 months. United States Finance Co. v. Barber, 247 Miss. 800, 157 So. 2d 394, 1963 Miss. LEXIS 358 (Miss. 1963).

Where complaint alleged that shortly prior to specified date complainant entered into an oral contract of employment as manager of manufacturing plant from one year from date thus specified with provision for employment from year to year thereafter using the words shortly prior as meaning more than three months. Greer v. Crawford Corp., 220 Miss. 97, 70 So. 2d 69, 1954 Miss. LEXIS 413 (Miss. 1954).

In action for the amount due under oral contract of employment for one year, trial court erred in overruling motion to require specific allegations in complaint as to when and where the alleged contract was consummated, in view of the fact that such information was necessary to determine whether the Alabama statute of frauds, under which the contract could not have been performed within the required time, or the Mississippi statute was applicable. Edmondson v. Edmondson, 209 Miss. 596, 48 So. 2d 121, 1950 Miss. LEXIS 418 (Miss. 1950).

Verbal contract of employment to begin in future and continue for year is void. Gulfport Cotton Oil, Fertilizer & Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, 1909 Miss. LEXIS 346 (Miss. 1909).

38. —Sales.

But oral exclusive sales agency contract for no specific period, but considered as permanent so long as buyer paid for goods, was held invalid. Gerachi v. Sherwin-Williams Co., 156 Miss. 36, 125 So. 410, 1930 Miss. LEXIS 131 (Miss. 1930).

An oral agreement to buy goods from a person exclusively for five years if he sell as reasonably as others, is within the statute. Mallett v. Lewis, 61 Miss. 105, 1883 Miss. LEXIS 80 (Miss. 1883).

39. —Miscellaneous.

A bankruptcy debtor’s pre-petition payment to law firms, and their retention of retainers without further action, created valid security interest in favor of law firms; perfection of security interest was achieved by law firms’ continuous possession of debtor’s funds, subject to the status of frauds and amounts of compensation actually allowed by court. In re Viscount Furniture Corp., 133 B.R. 360, 1991 Bankr. LEXIS 1630 (Bankr. N.D. Miss. 1991).

An action on an oral agreement to purchase a saw mill’s entire output of railroad crossties, evidenced only by a promissory note, was properly barred by the statute of frauds where the promissory note did not contain the substantial terms of the contract and where the contract was intended to last for as long as the sawmill was in business. Roberts v. Southern Wood Piedmont Co., 571 F.2d 276, 1978 U.S. App. LEXIS 11689 (5th Cir. Miss. 1978).

The statute of frauds did not operate to preclude a suit on a corporate merger agreement, merely because a contemplated oral employment contract was never committed to writing, where the plaintiff did not attempt to enforce the employment contract, but only the basic merger agreement itself, and where the contemplated employment arrangement was merely a condition precedent to closing, and a collateral matter separate and apart from, the binding bilateral merger agreement. Mid-Continent Tel. Corp. v. Home Tel. Co., 319 F. Supp. 1176, 1970 U.S. Dist. LEXIS 10081 (N.D. Miss. 1970).

An oral agreement between two parties to acquire jointly the corporate stock owned by another as soon as possible, or whenever the shares could be obtained, was a contract possible of performance within 15 months and did not violate this section. Jones v. McGahey, 187 So. 2d 579, 1966 Miss. LEXIS 1352 (Miss. 1966).

Oral dealership agreement, capable of performance within 15 months, is not within the statute of frauds though parties contemplated possible duration for an indefinite period. Hazell Machine Co. v. Shahan, 249 Miss. 301, 161 So. 2d 618, 1964 Miss. LEXIS 392 (Miss. 1964).

Oral agreement that one party shall have a permanent right to distribute the other’s products is one not performable within 15 months, and hence unenforceable. Stahlman v. National Lead Co., 318 F.2d 388, 1963 U.S. App. LEXIS 5265 (5th Cir. Miss. 1963).

Where testator executes will in compliance with oral agreement with the devisee that the latter will render unique and necessary personal services to testator involving a substantial change in the status and manner of living of the promisee, and such services have been performed, so that a revocation of the will amounts to fraud upon the devisee rendering it impossible or impracticable to restore devisee to prior situation, equity will hold such will to be irrevocable and the rights thereunder may be established. Johnston v. Tomme, 199 Miss. 337, 24 So. 2d 730, 1946 Miss. LEXIS 202 (Miss. 1946).

Suit based on oral agreement in 1929 that, until terminated by either party, insurer would renew fire policy yearly, under which policy was renewed for 1930 and 1931 but not 1932, held within statute of frauds barring action on agreement not to be performed within fifteen months. Fireman's Fund Ins. Co. v. Williams, 170 Miss. 199, 154 So. 545, 1934 Miss. LEXIS 124 (Miss. 1934).

Oral agreement to keep fire insurance policy in force and renew policy three years from date of agreement was within statute of frauds. Green v. Hartford Fire Ins. Co., 157 Miss. 316, 128 So. 107, 1930 Miss. LEXIS 299 (Miss. 1930).

One cannot be held chargeable to physicians for services to another plantation owner’s tenants not rendered within year of making oral contract. Hannah v. Covington, 155 Miss. 825, 125 So. 418, 1930 Miss. LEXIS 125 (Miss. 1930).

Appointment of agent executing lease for more than one year must be by deed. Hutchinson v. Platt, 119 Miss. 606, 81 So. 281, 1919 Miss. LEXIS 38 (Miss. 1919).

40. —Possibility of performance within fifteen months.

In an action arising out of an oral agreement between cotton merchants to enter into a joint venture with no definite date for its termination, the action was not barred by the statute of limitations where the last transaction of the venture took place on July 24, 1970, and the action was commenced sometime prior to December 12, 1972; nor was the action barred by §15-3-1 where the oral agreement had been of an indefinite duration and susceptible of performance within 15 months and where the agreement had been substantially performed by both parties. Beane v. Bowden, 399 So. 2d 1358, 1981 Miss. LEXIS 2030 (Miss. 1981).

An oral contract for the cutting and hauling of pulp wood to the railroad and loading the same on cars for shipment to the defendant with a guarantee to the plaintiff of employment under the contract for a period of not less than two years, whether regarded as a contract for employment or a contract for the purchase of pulp wood, could not be performed within a space of fifteen months from the making thereof and the contract is unenforceable under this section [Code 1942, § 264]. Poole v. Johns-Manville Products Corp., 210 Miss. 528, 49 So. 2d 891, 1951 Miss. LEXIS 291 (Miss. 1951).

A promise to wash, iron and cook for another in return for a promise of a devise of property may be performed in less than fifteen months and, therefore, is not within the statute. Boggan v. Scruggs, 200 Miss. 747, 29 So. 2d 86, 1947 Miss. LEXIS 358 (Miss. 1947), overruled, Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

But oral contract for personal services not performable within fifteen months is unenforceable. Moore v. Smart, 171 Miss. 248, 157 So. 467, 1934 Miss. LEXIS 237 (Miss. 1934).

Where oral contract is unenforceable under statute of frauds, parties thereto may thereafter enter into new oral contract identical in terms with former, but recognition of former contract does not result in formation of new contract unless parties intended thereby to enter into new contract. Moore v. Smart, 171 Miss. 248, 157 So. 467, 1934 Miss. LEXIS 237 (Miss. 1934).

Where oral contract for personal services was unenforceable because not performable within fifteen months, evidence that in subsequent conversation employer declined to put contract in writing, but stated what he had thereunder agreed to pay and that he would comply therewith, held not to show formation of new contract which would be enforceable. Moore v. Smart, 171 Miss. 248, 157 So. 467, 1934 Miss. LEXIS 237 (Miss. 1934).

A contract which may or may not be performed in one year is not within the statute. Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140, 1904 Miss. LEXIS 8 (Miss. 1904).

A contract by a railroad company to give a designated person employment for the life of such person is not within the statute, since it may be fully performed within a year. Jackson v. Illinois C. R. Co., 76 Miss. 607, 24 So. 874, 1898 Miss. LEXIS 106 (Miss. 1898).

A contract of employment which is possible to be performed within the space of one year from the making thereof is not within the statute. A. B. Smith Co. v. Jones, 75 Miss. 325, 22 So. 802, 1897 Miss. LEXIS 108 (Miss. 1897).

41. Settlement agreements.

To hold that a settlement agreement dictated into the record in the presence of a presiding judge ‘but which required the execution of a deed to real estate’ is not enforceable would undermine the inherent power of the court to enforce settlement agreements reached in the presence of the court. Nothing in the statute of frauds requires such a holding. Scarbrough v. Long, 112 F. Supp. 2d 609, 2000 U.S. Dist. LEXIS 13416 (S.D. Miss. 2000).

RESEARCH REFERENCES

ALR.

Oral agreement restricting use of real property as within statute of frauds. 5 A.L.R.2d 1316.

Performance as taking contract not to be performed within a year out of the statute of frauds. 6 A.L.R.2d 1053.

Sale or contract for sale of standing timber as within provisions of statute of frauds respecting sale or contract of sale of real property. 7 A.L.R.2d 517.

Statutory necessity and sufficiency of written statement as to amount of compensation in broker’s contract to procure purchase, sale, or exchange of real estate. 9 A.L.R.2d 747.

Undelivered lease or contract (other than for sale of land), or undelivered memorandum thereof, as satisfying statute of frauds. 12 A.L.R.2d 508.

Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds. 15 A.L.R.2d 1330.

Sufficiency of memorandum of lease agreement to satisfy the statute of frauds, as regards terms and conditions of lease. 16 A.L.R.2d 621.

Question, as one of law for court or of fact for jury, whether oral promise was an original one or was a collateral promise to answer for the debt, default, or miscarriage of another. 20 A.L.R.2d 246.

Sufficiency of description or designation of land in contract or memorandum of sale, under statute of frauds. 23 A.L.R.2d 6.

Necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds. 23 A.L.R.2d 164.

Construction and effect of exception making statute of frauds provision inapplicable where goods are manufactured by seller for buyer. 25 A.L.R.2d 672.

Rights as between vendor and vendee under land contract in respect of interest. 25 A.L.R.2d 951.

Rights of parties under oral agreement to buy or bid in land for another. 27 A.L.R.2d 1285.

Oral contract for personal services so long as employee is able to continue in work, to do satisfactory work, or the like, as within statute of frauds relating to contracts not to be performed within a year. 28 A.L.R.2d 878.

Oral acceptance of written offer by party sought to be charged as satisfying statute of frauds. 30 A.L.R.2d 972.

What constitutes part performance sufficient to take agreement in consideration of marriage out of statute of frauds. 30 A.L.R.2d 1419.

Effect of attempted cancelation or erasure in memorandum otherwise sufficient to satisfy statute of frauds. 31 A.L.R.2d 1112.

Statute of frauds: promise by stockholder, officer, or director to pay debt of corporation. 35 A.L.R.2d 906.

Sufficiency, under the statute of frauds, of description or designation of land in contract or memorandum of sale which gives right to select the tract to be conveyed. 46 A.L.R.2d 894.

What constitutes promise made in or upon consideration of marriage within statute of frauds. 75 A.L.R.2d 633.

Oral surrender of written lease. 78 A.L.R.2d 933.

Doctrine of part performance with respect to renewal option in lease not complying with statutes of frauds. 80 A.L.R.2d 425.

Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds. 81 A.L.R.2d 991.

Price fixed in contract violating statute of frauds as evidence of value in action on quantum meruit. 21 A.L.R.3d 9.

Statute of frauds: validity of lease or sublease subscribed by one of the parties only. 46 A.L.R.3d 619.

Comment Note.–Statute of frauds and conflict of laws. 47 A.L.R.3d 137.

Action by employee in reliance on employment contract which violates statute of frauds as rendering contract enforceable. 54 A.L.R.3d 715.

Promissory estoppel as basis for avoidance of statute of frauds. 56 A.L.R.3d 1037.

Exceptions to rule that oral gifts of land are unenforceable under statute of frauds. 83 A.L.R.3d 1294.

Liability for interference with invalid or unenforceable contract. 96 A.L.R.3d 1294.

Check given in land transaction as sufficient writing to satisfy statute of frauds. 9 A.L.R.4th 1009.

Promise by one other than principal to indemnify one agreeing to become surety or guarantor as within statute of frauds. 13 A.L.R.4th 1153.

Promissory estoppel as basis for avoidance of UCC statute of frauds (UCC § 2-201). 29 A.L.R.4th 1006.

Antenuptial contracts: parties’ behavior during marriage as abandonment estoppel, or waiver regarding contractual rights. 56 A.L.R.4th 998.

Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement. 72 A.L.R.4th 132.

Applicability of statute of frauds to promise to pay for legal services furnished to another. 84 A.L.R.4th 994.

Satisfaction of statute of frauds by e-mail. 110 A.L.R.5th 277.

Sufficiency of description of terms and conditions of lease, or lease provision, so as to comply with statute of frauds. 12 A.L.R.6th 123.

Am. Jur.

72 Am. Jur. 2d, Statute of Frauds §§ 4 et seq.

23 Am. Jur. Pl & Pr Forms (Rev), Statute of Frauds, Forms 11 et seq. (answer that agreement not in writing).

19 Am. Jur. Pl & Pr Forms, Statute of Frauds, Forms 19:8 et seq. (answer that agreement not in writing).

1 Am. Jur. Proof of Facts 2d, Part Performance of Oral Land Contract, §§ 8 et seq. (proof of possession by purchaser); §§ 17 et seq. (proof of improvements made by purchaser); §§ 26 et seq. (proof of payment by purchaser of consideration and of property taxes).

38 Am. Jur. Proof of Facts 2d 91, Fraudulent Misrepresentation as to Use to Which Real Property Could be Put.

CJS.

37 C.J.S., Frauds, Statute of §§ 3-31, 33-116, 117-160.

Law Reviews.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

Williamson and Redfern, Lender liability in Mississippi: Part II loan commitments and agreements. 59 Miss. L. J. 71, Spring, 1989.

Editor’s Notes —

Former §15-3-3 was entitled: “Fraudulent conveyances, judgments, loans and the like.” For present similar provisions, see the Uniform Fraudulent Transfer Act, §§15-3-101 et seq.

Editor’s Notes —

Section 15-3-3, referred to in the section, was repealed by Laws of 2006, ch. 371, § 13, effective from and after July 1, 2006.

JUDICIAL DECISIONS

1. In general.

2. Husband and wife.

3. Mortgages and deeds of trust.

1. In general.

Transfer not fraudulent under statute where conveyance was to satisfy antecedent debts and advancements; to induce wife to put up money for husband’s bail and lawyer in murder case; [to settle property rights related to divorce,] where wife had filed for divorce earlier with property settlement unresolved, and as result of signing over property this removed any such issue from dispute concerning divorce, it having been held that transfer of money or property in good faith between husband and wife as settlement of property rights and in lieu of alimony in contemplation of divorce proceedings is not without sufficient consideration where divorce is subsequently obtained. Barbee v. Pigott, 507 So. 2d 77, 1987 Miss. LEXIS 2475 (Miss. 1987).

When immediate family member is preferred as creditor, clear and satisfactory proof of valid and subsisting debt which would be enforced and payment exacted regardless of fortune or misfortune of debtor must be shown. Barbee v. Pigott, 507 So. 2d 77, 1987 Miss. LEXIS 2475 (Miss. 1987).

Fraudulent conveyance with sole purpose of cheating creditors is void as to such creditors whether supported by consideration or not. Barbee v. Pigott, 507 So. 2d 77, 1987 Miss. LEXIS 2475 (Miss. 1987).

If a bank withholds deed to it from record by agreement with its president, the grantor, to give him a fictitious credit, it is fraudulent in fact as against the president’s creditors who became such without notice of the deed, and the bank’s claim thereunder will be postponed to the rights of such creditors. Robertson & Co. v. Columbus Ins. & Banking Co., 85 Miss. 234, 38 So. 100 (Miss. 1904).

It has been held that this section [Code 1942, § 267] applies only to Code 1942, § 265 being inconsistent with Code 1942, § 266. Jennings v. Wilson, 71 Miss. 42, 14 So. 259, 1893 Miss. LEXIS 159 (Miss. 1893).

The change of the form of the debt, or the renewal of its evidence, does not make a prior creditor a subsequent one. Thomson v. Hester, 55 Miss. 656, 1878 Miss. LEXIS 28 (Miss. 1878); Cook v. Ligon, 54 Miss. 652, 1877 Miss. LEXIS 70 (Miss. 1877).

Under this statute [Code 1942, § 267] a subsequent purchaser cannot set aside a conveyance made to defraud existing creditors only. Prestidge v. Cooper, 54 Miss. 74, 1876 Miss. LEXIS 13 (Miss. 1876).

And a subsequent creditor must show that the deed was intended to defraud him. Hilliard v. Cagle, 46 Miss. 309, 1872 Miss. LEXIS 7 (Miss. 1872).

A conveyance to secure a pre-existing debt does not make the person so secured a bona fide purchaser under the section [Code 1942, § 267]. Pope v. Pope, 40 Miss. 516, 1866 Miss. LEXIS 91 (Miss. 1866).

2. Husband and wife.

A trial court properly dismissed a former wife’s fraudulent conveyance claim against her former husband, based upon the former husband’s conveyance of 15.2 acres of farm property to his father for inadequate consideration, where the husband had tendered the amount of the child support judgment owed to the former wife. However, since the matter was to be remanded for a determination of an additional amount of child support owed by the former husband, the judgments would be vacated to the extent necessary to provide the lower court with the opportunity to consider the need for security with regard to the child support arrearage or any of the father’s further obligations to and for the benefit of his children. McPhail v. McPhail, 564 So. 2d 839, 1990 Miss. LEXIS 163 (Miss. 1990).

Debtor has right to prefer one creditor over another, even if creditor is wife, and conveyance to satisfy pre-existing debt which equals value of property conveyed is valid over claim of other creditors. Barbee v. Pigott, 507 So. 2d 77, 1987 Miss. LEXIS 2475 (Miss. 1987).

Conveyance was not fraudulent where, when deed was executed, husband and wife did not have close family relationship, but were instead hostile and adverse, and wife was creditor trying to protect interest; while joint tenant or tenant in common could violate fraudulent conveyance statute in conveyance to remaining owner, this was not classic case of harried debtor transferring all of this property to third party, but was case where husband transferred his interest in their property to wife. Barbee v. Pigott, 507 So. 2d 77, 1987 Miss. LEXIS 2475 (Miss. 1987).

Deeds which were executed without consideration were not fraudulent conveyances within the meaning of §15-3-5, where they were executed before the date on which debtor-creditor relationships arose, and where they were clearly not executed with the intent to defraud the creditors in question. Morgan v. Sauls, 413 So. 2d 370, 1982 Miss. LEXIS 1881 (Miss. 1982).

Where a husband conveyed real estate to his father, to whom he was indebted, allegedly for the purpose of placing the property beyond the ordinary process of the court, and for the purpose of withholding from the wife and her two minor children the property rights therein under the law, and the deed was executed only a few days before, and not recorded until a few days after, wife filed a bill for divorce and maintenance, the chancellor could set aside the conveyance without incorporating in the decree a specific finding that the value of the property conveyed was substantially in excess of the amount of the indebtedness actually owing by the grantor to the grantee. Blount v. Blount, 231 Miss. 398, 95 So. 2d 545, 96 So. 2d 232, 97 So. 2d 240, 1957 Miss. LEXIS 525, 1957 Miss. LEXIS 526, 1957 Miss. LEXIS 527 (Miss. 1957).

A transfer by a husband to his wife, with intent to defraud existing creditors, is valid as to a subsequent creditor of the husband who had knowledge of the transaction and consented thereto, and dealt with the wife as the real owner for several years before the debt with the husband was contracted. Donoghue v. Shull, 85 Miss. 404, 37 So. 817, 1904 Miss. LEXIS 155 (Miss. 1904).

3. Mortgages and deeds of trust.

Oral agreement of second mortgagee that if mortgagor would pay part of indebtedness secured by first trust deed, and if third party would advance remainder of indebtedness to prevent foreclosure of first trust deed, third party should have first lien on land covered, held valid and binding. Taylor v. Phillips, 182 Miss. 539, 181 So. 855, 1938 Miss. LEXIS 192 (Miss. 1938).

Deed of trust on firm property to secure existing indebtedness and indebtedness that may accrue in the future, held mere security and valid. Lawrence Lumber Co. v. A. J. Lyon & Co., 93 Miss. 859, 47 So. 849, 1908 Miss. LEXIS 161 (Miss. 1908).

Deed of trust to wife to secure a valid debt while grantor was financially embarrassed and indebted to others, held not fraud on other creditors. Godfrey Frank & Co. v. Doughty, 47 So. 643 (Miss. 1908).

RESEARCH REFERENCES

ALR.

Assumption of mortgage as consideration for conveyance attacked as in fraud of creditors. 6 A.L.R.2d 270.

Transaction in consideration of discharge of antecedent debt owed by one other than grantor as based on “fair consideration” under Uniform Fraudulent Conveyance Act. 30 A.L.R.2d 1209.

Conveyance as fraudulent where made in contemplation of possible liability for future tort. 38 A.L.R.3d 597.

Am. Jur.

38 Am. Jur. Proof of Facts 2d 91, Fraudulent Misrepresentation as to Use to Which Real Property Could be Put.

39 Am. Jur. Proof of Facts 2d 733, Gift Rather Than Loan.

Cross References —

Use of words “bank”, “banking”, “bankers”, “trust company”, etc., see §81-3-3.

JUDICIAL DECISIONS

1. In general.

2. Construction, generally.

3. Reservation of title to property by seller.

4. Assignment.

5. Use of property as essential to application of statute.

6. Trading in own name.

7. Trading with undisclosed principal.

8. Particular businesses.

1. In general.

Trustee of debtor corporation held title to all equipment in debtor’s store premises, free and clear of any interest claimed therein by debtor’s incorporators, who had never conveyed the equipment to the corporation, where incorporators failed to comply with statute by posting a sign on debtor’s premises indicating such ownership, and there was nothing on record in Mississippi Secretary of State’s office or chancery clerk’s office showing such claim to ownership. In re Elvis Presley Heights Supermarket, Inc., 13 B.R. 956, 1981 Bankr. LEXIS 2991 (Bankr. N.D. Miss. 1981).

The Business Sign Statute (§15-3-7) does not violate the Due Process Clause of the Fourteenth Amendment and was not repealed by implication in §75-10-103, but was virtually continued by express direction in §75-2-326(3)(a); furniture and office equipment “used or acquired” in the business was subject to execution and sale under the statute. In re Bruneau's, Inc., 642 F.2d 146, 1981 U.S. App. LEXIS 14441 (5th Cir. Miss. 1981).

This section [Code 1942, § 273] does not apply where the contract creating the lien is recorded prior to the attachment by the creditors. National Cash Register Co. v. Thompson, 210 Miss. 37, 48 So. 2d 608, 1950 Miss. LEXIS 318 (Miss. 1950).

This section [Code 1942, § 273] fixes the ownership in the property, but takes no part in a contest between creditors of the common debtor who used or acquired the property which is the subject of the contest. National Cash Register Co. v. Thompson, 210 Miss. 37, 48 So. 2d 608, 1950 Miss. LEXIS 318 (Miss. 1950).

Accordingly, purchase money liens on automobile trailers which were seized and removed from leased premises of the purchaser by landlord under attachment writ seeking to collect unpaid rent were not displaced by landlord’s lien and were not affected by the fact that there was no sign on the trailers indicating that the seller had any lien thereon. Dorsey v. Latham, 194 Miss. 253, 11 So. 2d 897, 1943 Miss. LEXIS 46 (Miss. 1943).

The state tax collector could not attach the truck of one engaged in the restaurant and cattle business but which was owned by another under an unrecorded conditional sales contract, to subject it to the payment of penalties for violation of the intoxicating liquor laws, since this section [Code 1942, § 273] applied only to contract debts and was not intended to cover such an obligation as that incurred under the intoxicating liquor statute. General Motor Acceptance Corp. v. Gully, 194 So. 473 (Miss. 1940); International Harvester Co. v. Gully, 188 Miss. 115, 194 So. 472, 1940 Miss. LEXIS 21 (Miss. 1940).

The forfeiture provided by the intoxicating liquor statute (Code 1942, § 2639) is not within the purview of this section [Code 1942, § 273], although in a broad sense it might be a debt constituting the state, county and municipality creditors, since this section was intended to cover only contract debts and has nothing to do with fines and forfeitures for violation of the criminal laws of the state. International Harvester Co. v. Gully, 188 Miss. 115, 194 So. 472, 1940 Miss. LEXIS 21 (Miss. 1940).

Statute providing that all property used or acquired in business transacted by person without disclosure of principal shall be liable for debts of such person held not to prevent such person from selling or pledging property used and acquired by him in his business; hence only right pledgor’s general creditors have in pledge is to subject interest of pledgor to payment of debts. Wood Preserving Corp. v. Coney Grocery Co., 176 Miss. 406, 168 So. 864, 1936 Miss. LEXIS 133 (Miss. 1936).

Under this statute [Code 1942, § 273] a merchant’s agreement to return goods to the manufacturer when requested is inoperative as to the merchant’s creditors, and as to his trustee in bankruptcy who is entitled to all the rights and remedies of a creditor who has a lien by attachment or otherwise. In re Matheny, 57 F.2d 330, 1932 U.S. Dist. LEXIS 1121 (D. Miss. 1932).

When property was shipped into Mississippi, placed on sale in the store of a purchaser doing business as a trader under a sign, and there permitted to remain in his undisturbed possession as his property until the date of filing of a petition in bankruptcy, the lien or privilege for the purchase money given to the seller by a Louisiana statute was lost, and the vendor cannot prevail as against the trustee in bankruptcy vested with all the rights, remedies, and powers of creditors holding a lien thereof by equitable proceedings. In re Smith, 51 F.2d 290, 1931 U.S. Dist. LEXIS 1488 (D. Miss. 1931).

Automobile conditionally delivered to dealer and used in dealer’s business must be treated as dealer’s property, as against creditors. Durant Motor Co. v. Simpson, 160 Miss. 313, 133 So. 672, 1931 Miss. LEXIS 170 (Miss. 1931).

Notwithstanding Louisiana statute giving purchase-money lien, Louisiana seller held not entitled to priority where merchandise was sold to Mississippi buyer who had undisturbed possession thereof until buyer’s bankruptcy petition. In re Caver, Caver & Co., 42 F.2d 293, 1930 U.S. Dist. LEXIS 1149 (D. Miss. 1930).

This statute [Code 1942, § 273] does not invalidate the conditional sales contract as between the parties, and therefore a vendor may not be allowed upon the purchaser’s bankruptcy to waive the benefit of a conditional sales contract and obtain priority over other creditors by claiming a vendor’s lien. In re Whatley, 30 F.2d 979, 1929 U.S. Dist. LEXIS 1886 (D. Miss. 1929).

Business Sign Statute does not derange priority of lien between creditors of common debtor. Campbell Paint & Varnish Co. v. Hall, 131 Miss. 671, 95 So. 641, 1923 Miss. LEXIS 213 (Miss. 1923); Crump v. Hill, 105 F.2d 124, 1939 U.S. App. LEXIS 3267 (5th Cir. Miss. 1939); Dodds v. Pratt, 64 Miss. 123, 8 So. 167, 1886 Miss. LEXIS 27 (Miss. 1886).

The section [Code 1942, § 273] has no application in a contest between creditors of the common debtor. Kinney v. Paine, 68 Miss. 258, 8 So. 747, 1890 Miss. LEXIS 69 (Miss. 1890).

Where a person undertook to form a stock company, but failed to do so, and carried on the business individually, without any sign indicating the company, the property used by him in the prosecution of such business is not liable to a judgment recovered against the fictitious company. Adams v. Berg, 65 Miss. 3, 3 So. 465, 1887 Miss. LEXIS 2 (Miss. 1887).

The section [Code 1942, § 273] does not apply in favor of the creditors of the trader so as to prevent a rescission of the sale and recovery of the goods by one induced to sell the same to such trader under his fraudulent representations. Frank v. Robinson, 65 Miss. 162, 3 So. 253, 1887 Miss. LEXIS 28 (Miss. 1887).

Where property is placed in the custody of a trader, to be sold by him as part of his stock, or under such circumstances as to appear to be his, and furnish him a basis of credit, it is within the section [Code 1942, § 273]. Shannon v. J. C. Blum & Co., 60 Miss. 828, 1883 Miss. LEXIS 20 (Miss. 1883).

2. Construction, generally.

This statute, being highly penal, is to be strictly construed against any claim thereunder. State Tax Com. v. Mitchell, 235 Miss. 264, 109 So. 2d 154, 1959 Miss. LEXIS 424 (Miss. 1959).

This section [Code 1942, § 273] is highly penal and is to be strictly construed against any claim thereunder. Yellow Mfg. Acceptance Corp. v. American Oil Co., 191 Miss. 757, 2 So. 2d 834, 1941 Miss. LEXIS 161 (Miss. 1941); Merchants Grocery Co. v. Gulley Grocery Co., 210 Miss. 33, 48 So. 2d 606, 1950 Miss. LEXIS 317 (Miss. 1950).

The purpose of the statute [Code 1942, § 273] is to defeat secret liens, and should not be tortured into a strained construction to defeat honest transactions entered into in accordance with upright business practices. Floyd v. C. Nelson Mfg. Co., 93 F.2d 857, 1938 U.S. App. LEXIS 3677 (5th Cir. 1938).

3. Reservation of title to property by seller.

This statute does not preclude the assertion of rights under a duly recorded title retention contract adequately describing the property. Floyd v. C. Nelson Mfg. Co., 93 F.2d 857, 1938 U.S. App. LEXIS 3677 (5th Cir. 1938).

But it does cut off and defeat lien claimants under instruments describing the property claimed insufficiently to identify it. Liquid Carbonic Corp. v. Phillips, 68 F.2d 515, 1934 U.S. App. LEXIS 4895 (5th Cir. Miss. 1934).

The exception made by the courts from the operation of this statute [Code 1942, § 273] of liens created by duly recorded instruments presupposes that the description in such instrument must have been such as to enable a third person to identify the property to the exclusion of all other property without the assistance of external evidence. In re Caver, Caver & Co., 42 F.2d 293, 1930 U.S. Dist. LEXIS 1149 (D. Miss. 1930).

Descriptive words in instruments retaining title held insufficient within statute providing that property used in business shall be liable for debt. In re Caver, Caver & Co., 42 F.2d 293, 1930 U.S. Dist. LEXIS 1149 (D. Miss. 1930).

Recorded instrument retaining title without specifically describing property was void as to trustee in bankruptcy for buyers. In re Caver, Caver & Co., 42 F.2d 293, 1930 U.S. Dist. LEXIS 1149 (D. Miss. 1930).

Landlord cannot subject for rent due by person transacting business as trader property which he acquired under recorded contract of sale reserving title. Fitz Gerald v. American Mfg. Co., 114 Miss. 580, 75 So. 440 (Miss. 1917).

This section [Code 1942, § 273] has no application against the original seller, who, to secure the purchase money, reserves title by an instrument signed by the purchaser and duly acknowledged and recorded. Tufts v. Stone, 70 Miss. 54, 11 So. 792, 1892 Miss. LEXIS 78 (Miss. 1892).

Where a hotel keeper purchased a cooking range under a recorded agreement that the title was to remain in the seller until the price was paid, one who succeeded him as owner of the hotel could not hold the range by virtue of this section [Code 1942, § 273]. John Van Range Co. v. Allen, 7 So. 499 (Miss. 1890).

4. Assignment.

Successive assignments of book accounts as security for a loan, the assignee having exercised complete dominion over the accounts, are not invalidated as to other creditors of the assignor by failure to comply with the statute. Crump v. Hill, 105 F.2d 124, 1939 U.S. App. LEXIS 3267 (5th Cir. Miss. 1939).

Assignment of fire insurance policies on a stock of goods before loss are not within the operation of the statute. In re Star Gorcery Co., 2 F. Supp. 21, 1933 U.S. Dist. LEXIS 1837 (D. Miss. 1933).

The right of a seller to retake property upon default in the payment of the purchase-price, the title to which was reserved in him, is not destroyed by an assignment by the purchaser for the benefit of his creditors, and is not affected by the statute. Gayden v. Tufts, 68 Miss. 691, 10 So. 53, 1891 Miss. LEXIS 39 (Miss. 1891).

5. Use of property as essential to application of statute.

Articles repossessed by a dealer’s assignee of conditional sales contracts and mingled by him, with a view to resale, with the stock in trade of the dealer without disclosing such assignee’s ownership, are “used or acquired” in the dealer’s business within the meaning of the statute [Code 1942, § 273] and therefore subject to claims of the dealer’s creditors. State Tax Com. v. Mitchell, 235 Miss. 264, 109 So. 2d 154, 1959 Miss. LEXIS 424 (Miss. 1959).

The mere permissive possession of property by a trader, where he has no right to use it in his business, does not bring him within the operation of the sign statute, and therefore, upon the default of purchasers of automobiles under conditional sales contracts held by a foreign credit corporation, the permissive possession of the automobiles by a dealer did not bring him within the operation of the statute. Yellow Mfg. Acceptance Corp. v. American Oil Co., 191 Miss. 757, 2 So. 2d 834, 1941 Miss. LEXIS 161 (Miss. 1941).

Bankrupt’s trustee held not entitled to recover value of automobile repossessed by finance company, which was conditionally sold to bankrupt, who represented in finance papers that automobile was for personal use, but who used automobile in his business in violation of his agreement, in absence of evidence that finance company knew bankrupt was using automobile in his business or that it authorized him to do so. Archibald v. General Motors Acceptance Corp., 172 Miss. 278, 159 So. 843, 1935 Miss. LEXIS 131 (Miss. 1935).

In action by bankrupt’s trustee to recover value of automobile repossessed by finance company, evidence that bankrupt, in application for credit, stated automobile was for personal use, that conditional seller’s title was assigned to finance company with bankrupt’s consent, and that finance company did not know bankrupt was using automobile in his business, sustained burden imposed on finance company, to defeat trustee’s recovery, of showing it owned automobile and that automobile was not acquired or used by bankrupt with its consent. Archibald v. General Motors Acceptance Corp., 172 Miss. 278, 159 So. 843, 1935 Miss. LEXIS 131 (Miss. 1935).

This section [Code 1942, § 273] does not apply to property neither used nor acquired in the trader’s business. Longino v. Delta Bank, 76 Miss. 395, 24 So. 901, 1898 Miss. LEXIS 113 (Miss. 1898).

Unless the property be “used or acquired” in the business with the consent of the real owner, it does not become liable under the section [Code 1942, § 273]. Adams v. Berg, 67 Miss. 234, 7 So. 225, 1889 Miss. LEXIS 52 (Miss. 1889).

The mere permissive possession by a trader of property, where he has neither an interest in nor right to “use” it in his business, does not bring it within the section [Code 1942, § 273]. Hall's Self-Feeding Cotton Gin Co. v. Berg, 65 Miss. 184, 3 So. 372, 1887 Miss. LEXIS 32 (Miss. 1887).

6. Trading in own name.

Where trustee showed that bankrupt transacted business in own name, used automobile in business, displayed it for sale, and showed adjudication in bankruptcy, finance company which resold automobile had burden of showing that automobile belonged to it, was not acquired or used by bankrupt in his business with its consent, or that finance company had such lien, of which trustee had actual or constructive notice, as would make statute inoperative. Archibald v. General Motors Acceptance Corp., 172 Miss. 278, 159 So. 843, 1935 Miss. LEXIS 131 (Miss. 1935).

Where a decedent had conducted the business of trader in his own name, although the money for purchasing the stock had been furnished by another, his administratrix had the presumptive right of possession of the stock until all creditors of the decedent had been paid, and could maintain replevin therefor, although no actual debts against the estate were shown, where the time allowed creditors to probate accounts had not expired. Hunter v. Forrest, 115 Miss. 7, 75 So. 753, 1917 Miss. LEXIS 176 (Miss. 1917).

In such case, the right of possession of the administratrix was superior to that of the true owner of the stock. Hunter v. Forrest, 115 Miss. 7, 75 So. 753, 1917 Miss. LEXIS 176 (Miss. 1917).

Creditors held entitled to treat gas engine in hands of hardware company as property of the hardware company where the place of business bore no sign showing it was agent for the manufacturer. Gillaspy v. International Harvester Co., 109 Miss. 136, 67 So. 904, 1915 Miss. LEXIS 125 (Miss. 1915).

Person operating business for sale of pianos in own name was a trader, and pianos acquired individually were liable for his debts. Merchants' & Farmers' Bank v. Schaaf, 108 Miss. 121, 66 So. 402, 1914 Miss. LEXIS 178 (Miss. 1914).

The goods of a merchant whose business sign does not specify ownership in the defendant in execution are not liable to his creditor because the merchant caused the goods purchased by him to be shipped in the defendant’s name and carried on the business correspondence and paid a privilege tax in his name, but without his knowledge or consent. Albin v. Howard, 74 Miss. 370, 20 So. 844, 1896 Miss. LEXIS 113 (Miss. 1896).

One carrying on business in his own name, under a sign bearing his name, with the addition of the word “proprietor,” although insolvent, may sell in good faith the property employed in such business to a creditor in satisfaction of his debt, inasmuch as the creditor might, under this section, have enforced such application by law. Columbus Buggy Co. v. Turley, 73 Miss. 529, 19 So. 232, 1895 Miss. LEXIS 154 (Miss. 1895).

Where wagons are placed in the custody of a merchant and kept in a lot adjoining his store, to be sold as a part of his stock, they are subject to his debts, though sold on commission for a manufacturer, who reserves the legal title as security for the price. Citizens' Bank v. Studebaker Bros. Mfg. Co., 71 Miss. 544, 14 So. 733, 1893 Miss. LEXIS 116 (Miss. 1893).

The requirement of a sign applies only to him who appends to his name in business such words as “agent,” “factor” or “company,” or the like; and where a married woman transacts a mercantile business in her own name and with her own means, though it be conducted by her husband as her agent, the goods are not liable for the husband’s debts for want of a sign. Harris v. Robson, 68 Miss. 506, 9 So. 829, 1891 Miss. LEXIS 20 (Miss. 1891); Schoolfield, Hananer & Co. v. Wilkins, 60 Miss. 238, 1882 Miss. LEXIS 38 (Miss. 1882).

It is erroneous to assume that the debtor, by “conducting” the business, was “transacting business in his own name,” within the meaning of the statute [Code 1942, § 273]. Harris v. Robson, 68 Miss. 506, 9 So. 829, 1891 Miss. LEXIS 20 (Miss. 1891).

The goods of a principal are not liable to the debts of a mere clerk. To make the goods liable to the debts of one not the owner, under the statute, he must have “transacted the business in his own name.” Carberry v. Worrell, 68 Miss. 573, 9 So. 290, 1891 Miss. LEXIS 2 (Miss. 1891).

The name on a business sign on the house in which a mercantile business is conducted does not, per se, fix the ownership of the goods in him whose name is on the sign and make them liable for his debts. Wolf & Marks v. Kahn, 62 Miss. 814, 1885 Miss. LEXIS 153 (Miss. 1885).

But if one transacts business in his own name for the secret benefit of another, the property used or acquired in the business will be liable for the debts of the former. Wolf & Marks v. Kahn, 62 Miss. 814, 1885 Miss. LEXIS 153 (Miss. 1885).

A cotton-buyer transacts “business” within the meaning of the section [Code 1942, § 273] if he have an office in a town, and on the door of which is an advertisement of his business signed by himself. Gumbel v. Koon, 59 Miss. 264, 1881 Miss. LEXIS 115 (Miss. 1881).

7. Trading with undisclosed principal.

Where judgment debtor conducted filling station under agreement with third party who furnished gas and oil for sale at fixed commission, and no sign was posted disclosing ownership of property, gas and oil found at filling station held subject to execution taken out by judgment creditor to satisfy judgment, notwithstanding ownership of such oil and gas by third party. Louisiana Oil Corp. v. Robbins, 169 Miss. 39, 152 So. 846, 1934 Miss. LEXIS 36 (Miss. 1934).

Automobiles repossessed by a finance company, displayed for sale by a dealer with the finance company’s consent under a sign bearing only the dealer’s name, are to be treated in favor of his creditors, and therefore in favor of his trustee in bankruptcy, as his property. In re Waynesboro Motor Co., 60 F.2d 668, 1932 U.S. Dist. LEXIS 1389 (D. Miss. 1932).

Evidence held not to warrant finding that wife violated the law in failing to change sign over place of business after purchase from husband. Whittington v. Yazoo Delta Mortg. Co., 148 Miss. 861, 114 So. 752, 1927 Miss. LEXIS 80 (Miss. 1927).

Conduct of business by bankrupt’s wife with husband as manager without sign on building held not a violation of the Sign Statute. Rubenstein v. Lynchburg Shoe Co., 125 Miss. 528, 88 So. 14, 1921 Miss. LEXIS 139 (Miss. 1921).

Upon buying given commodity from H. & B. partnership defendant became debtor of H. & B., and fact that B. did not disclose he was also member of B. Bros. Co. which was indebted to defendant, did not authorize instructed verdict for defendant. Hobbs & Buck v. Herman Grocer Co., 113 Miss. 332, 74 So. 26, 1916 Miss. LEXIS 22 (Miss. 1916).

Creditors of clerk who had same name as one of partners and frequently drew checks on partnership account, could not hold partnership property liable for their debts because there was no sign on the building naming members of the firm. J. M. Robinson, Norton Co. v. Godsey, 111 Miss. 171, 71 So. 312, 1916 Miss. LEXIS 262 (Miss. 1916).

Receiver held entitled to possession of gasoline engines in hands of hardware company acting as agent of harvester company without sign indicating agency, although the harvester company commenced a replevin action before appointment of the receiver. P. E. Payne Hardware Co. v. International Harvester Co., 110 Miss. 783, 70 So. 892, 1916 Miss. LEXIS 199 (Miss. 1916).

The name of the principal or the real owner was not disclosed by a sign, “McAdams & Sons, Agents for Sheldon, Dale & Co.,” and therefore an execution against the agents was good as against property in their possession and belonging to their principals. F. M. Dale & Co. v. Harrahan, 85 Miss. 49, 37 So. 458, 1904 Miss. LEXIS 127 (Miss. 1904).

Where a mercantile business was conducted under the name of “Ormond Grocery Company,” without a sign disclosing the real owner, the property used and acquired therein is subject to the debts of the party transacting the business, although he was in fact the agent of an undisclosed principal. Meridian Land & Industrial Co. v. J. B. Ormond & Co., 82 Miss. 758, 35 So. 179, 1903 Miss. LEXIS 192 (Miss. 1903).

The proceeds of a policy of fire insurance on goods acquired and used in such business, and burned, are liable to the creditors of the party who transacted the business and may be garnished by them. Meridian Land & Industrial Co. v. J. B. Ormond & Co., 82 Miss. 758, 35 So. 179, 1903 Miss. LEXIS 192 (Miss. 1903).

Where one transacts business in his own name, without a sign disclosing that another owns an interest therein, all the property used in the business is liable for his debts; and this although such other is interested as a silent partner and personally assists in carrying on the business, ostensibly as clerk. Howe v. Kerr, 69 Miss. 311, 13 So. 730, 1891 Miss. LEXIS 154 (Miss. 1891).

Where a merchant sold his stock of goods and remained in the store as clerk of the buyer, who had no sign, it not appearing who was transacting the business, the goods were not liable for the debts of the seller. Bufkin v. Lyon, 68 Miss. 255, 10 So. 38, 1890 Miss. LEXIS 84 (Miss. 1890).

But the husband in such a case will be allowed to claim property as exempt under § 307, Code 1942. Stein v. Hamblett, 66 Miss. 112, 5 So. 524, 1888 Miss. LEXIS 72 (Miss. 1888).

Where the wife is the actual partner in a mercantile firm, and makes her husband her agent and manager, he thereby becomes her agent within the meaning of the section [Code 1942, § 273], and must disclose the name of his principal in the sign. Evans v. Henley, 66 Miss. 148, 5 So. 522, 1888 Miss. LEXIS 79 (Miss. 1888).

A business conducted by the husband, who usually superintended and managed it, having a sign in the words “Carr’s Stable,” and advertising the same as “Carr’s Stable,” managed by him, is within the section [Code 1942, § 273] as his property, even though the wife owns the property, leased the building, and paid the privilege license, which was posted in the office of the stable, and the books and accounts were in her name. Hamblet v. Steen, 65 Miss. 474, 4 So. 431, 1888 Miss. LEXIS 25 (Miss. 1888).

The effect of the statute [Code 1942, § 273] is to make all of the property used or acquired in the business the property of him who transacts the business, and liable for his debts, without regard to the sign under which the business is conducted, unless by a proper sign the name of the true owner be disclosed. Paine v. Hall's Safe & Lock Co., 64 Miss. 175, 1 So. 56, 1886 Miss. LEXIS 36 (Miss. 1886); Loeb & Bloom v. John P. Morton & Co., 63 Miss. 280, 1885 Miss. LEXIS 62 (Miss. 1885).

Creditors, whether antecedent or subsequent, and with or without notice of the undisclosed principal, can avail themselves of the section [Code 1942, § 273]. Quin v. Myles, 59 Miss. 375, 1882 Miss. LEXIS 120 (Miss. 1882); Gumbel v. Koon, 59 Miss. 264, 1881 Miss. LEXIS 115 (Miss. 1881).

Property used in a bar and billiard-room, conducted under the sign of “Empire Saloon,” is liable to the satisfaction of judgment against an employee who conducts the business under the name of the owner “ & Co.,” under a written contract with the owner that he is to receive a part of the profits for his services. Quin v. Myles, 59 Miss. 375, 1882 Miss. LEXIS 120 (Miss. 1882).

8. Particular businesses.

Electrical appliance dealer is a “trader” within this provision [Code 1942, § 273]. State Tax Com. v. Mitchell, 235 Miss. 264, 109 So. 2d 154, 1959 Miss. LEXIS 424 (Miss. 1959).

The integration of the services and activities of a business, which included a gas filling station, the sale of soft drinks, beer, and cigarettes, and the operation of bar and dance hall, subjected the property used or acquired therein to liability to creditors under the business sign statute, as against the claim of the conditional seller of electric refrigerators used in such business. Ellzey v. Frederic, 191 Miss. 633, 3 So. 2d 849, 1941 Miss. LEXIS 173 (Miss. 1941).

One who carries on the business of a gasoline filling station is a “trader” within the meaning of the business sign statute. Ellzey v. Frederic, 191 Miss. 633, 3 So. 2d 849, 1941 Miss. LEXIS 173 (Miss. 1941).

The statute [Code 1942, § 273] applies only where the business transacted is that of a trader or one ejusdem generis, and where there are separate or distinct lines of business carried on by the same corporation the property of the non-trading one is not within the statute. In re Hemming, 51 F.2d 850, 1931 U.S. Dist. LEXIS 1582 (D. Miss. 1931).

Bankrupt wagon manufacturer was “trader” as to road-building machines purchased by him for resale, so as to entitle trustee to their possession for benefit of general creditors. In re Hemming, 51 F.2d 850, 1931 U.S. Dist. LEXIS 1582 (D. Miss. 1931).

Business Sign Statute held not applicable to sale of restaurant operated under name of “Elite Cafe” where merchandise was not sold in usual mercantile way, and there was no claim against property conveyed. Carnaggio Bros. v. Greenwood, 142 Miss. 885, 108 So. 141, 1926 Miss. LEXIS 132 (Miss. 1926).

Undertaker not merchant or trader within Business Sign Statute. Sayers & Scoville Co. v. Doak, 127 Miss. 216, 89 So. 917, 1921 Miss. LEXIS 216 (Miss. 1921).

Acquisition and use of jitney buses for hire does not come within this section [Code 1942, § 273]. Orr v. Jackson Jitney Car Co., 115 Miss. 140, 75 So. 945, 1917 Miss. LEXIS 193 (Miss. 1917).

Statute [Code 1942, § 273] inapplicable to woman keeping restaurant and boarding house. Oliver v. Ferguson & Allen, 112 Miss. 521, 73 So. 569, 1916 Miss. LEXIS 141 (Miss. 1916).

A single sale does not make one a trader. Durham v. Slidell Liquor Co., 94 Miss. 140, 49 So. 739, 1904 Miss. LEXIS 1 (Miss. 1904).

This section [Code 1942, § 273] has no application to a person transacting business solely as an insurance agent. I. L. Lyons & Co. v. S. S. Steele & Co., 86 Miss. 261, 38 So. 371, 1905 Miss. LEXIS 47 (Miss. 1905).

The section [Code 1942, § 273] does not apply to a person engaged in the business of buying rough lumber, planing it for building purposes, and reselling it. Willis v. Memphis Grocery Co., 19 So. 101 (Miss. 1896).

The section [Code 1942, § 273] does not apply to a person conducting the business of milling and ginning in the country, for the public, but only to traders and persons ejusdem generis. Yale & Bowling v. Taylor Mfg. Co., 63 Miss. 598, 1886 Miss. LEXIS 146 (Miss. 1886).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partnership §§ 52 et seq.

Cross References —

Notice of loss of mortgaged cattle, see §69-29-13.

Protection of mortgages in order of priority, see §83-13-7.

Insurance mortgage clause, see §83-13-9.

Proof of loss, see §83-13-13.

JUDICIAL DECISIONS

1. In general.

The intent of the legislature and the force and effect of this section [Code 1942, § 276] is to freeze the proceeds of the insurance in the hands of the insurance companies until creditors of the holder of the insurance have had an opportunity to protect themselves in regard to the loss. Doty v. Atkinson, 262 F. Supp. 477, 1966 U.S. Dist. LEXIS 6877 (N.D. Miss. 1966).

Where, in violation of this section [Code 1942, § 276], the insured did not give notice to his creditors of the amount of insurance which he carried on his stock of goods within five days after sustaining a fire loss and assigned the proceeds of the policy within eight days after loss, the assignment was void and the assignee held the proceeds of the policy as trustee for the insured’s creditors, and this was true despite the fact that the assignee had paid the insured the face value of the policy. Doty v. Atkinson, 262 F. Supp. 477, 1966 U.S. Dist. LEXIS 6877 (N.D. Miss. 1966).

This provision [Code 1942, § 276] has no application except to transfers or assignments made after the fire occurs. In re Star Gorcery Co., 2 F. Supp. 21, 1933 U.S. Dist. LEXIS 1837 (D. Miss. 1933).

Assignment of proceeds of fire insurance policy 8 days after loss without notice to creditors and payment to assignee less than 15 days after fire, renders assignee a trustee of the funds for all creditors including assignee. Citizens' Nat'l Bank v. Yazoo Grocery Co., 113 Miss. 87, 73 So. 877, 1916 Miss. LEXIS 15 (Miss. 1916).

Cross References —

Saving rights of infants, see §11-5-115.

Saving in favor of those under disabilities, see §15-1-59.

Requirement that certain contracts be in writing, see §15-3-1.

Assailing chancery decree collaterally, see §91-1-31.

Competency of persons eighteen years of age or older to contract in matters affecting personal property, see §93-19-13.

JUDICIAL DECISIONS

1. In general.

A finance company could not maintain an action against the minor maker of a note for default of a car finance contract, even though he made several payments after achieving maturity, where the minor did not ratify the contract in writing after reaching the age of maturity, as required by statute, and where he expressly disaffirmed the contract. Ray v. Acme Finance Corp., 367 So. 2d 186, 1979 Miss. LEXIS 2215 (Miss. 1979).

Where a minor lost her life during the time in which she had a right to rescind a contract made during her infancy for the purchase of an automobile, the administrator of the minor’s estate could properly disaffirm the claim against the estate based on a conditional sales contract for the purchase of the automobile and was not estopped to rescind the contract or to deny ratification of the contract. Johnson Motors, Inc. v. Coleman, 232 So. 2d 716, 1970 Miss. LEXIS 1638 (Miss. 1970).

The administrator of a minor’s estate seeking to disaffirm a claim against the estate based on the conditional sale of an automobile, was entitled to a judgment against the automobile dealer for the value of an automobile which the minor had inherited and traded in on the purchase of a new automobile. Johnson Motors, Inc. v. Coleman, 232 So. 2d 716, 1970 Miss. LEXIS 1638 (Miss. 1970).

A mere acknowledgment in writing is not sufficient. There must be an express promise to pay. Edmunds v. Mister, 58 Miss. 765, 1881 Miss. LEXIS 35 (Miss. 1881).

RESEARCH REFERENCES

ALR.

Failure to disaffirm as ratification of infant’s executory contract. 5 A.L.R.2d 7.

Liability of surety on infant’s contract or obligation, where contract is disaffirmed by infant. 44 A.L.R.3d 1417.

Cross References —

Sales under decrees of chancery courts, see §§11-5-93 et seq.

Sales under execution, see §§13-3-161 et seq.

RESEARCH REFERENCES

ALR.

Implied power of executor or testamentary trustee to sell real estate. 23 A.L.R.2d 1000.

Power of sale given trustee by will or trust instrument as surviving termination of trust. 43 A.L.R.2d 1102.

Cross References —

Presumption attending certificates, see §13-1-81.

JUDICIAL DECISIONS

1. In general.

When a writing or memorandum is lost or destroyed, both its existence and contents may be proven by parol evidence; the loss or destruction of a memorandum does not deprive it of effect under the Statute of Frauds. Thus, §15-1-29, §15-1-73 and the Statute of Frauds (§15-3-1) did not bar an action to enforce a loan agreement which was allegedly destroyed in a fire where the plaintiff sufficiently proved the existence and contents of the destroyed memorandum. Williams v. Evans, 547 So. 2d 54, 1989 Miss. LEXIS 335 (Miss. 1989).

In proceeding under bulk sales statute to hold purchaser for debt, value of goods when sold must be alleged and proved. McLendon v. People's Bank of Lumberton, 111 So. 843 (Miss. 1927).

Cross References —

Attorney General may institute and prosecute suits to vacate fraudulent conveyances, see §7-3-35.

Creditors may attack fraudulent conveyances, see §11-5-75.

Fraudulent conveyances, judgments, loans and the like, and exceptions, see §15-3-5.

Attorney general giving approval to district attorney to prosecute suits to vacate fraudulent conveyances, see §25-31-25.

Fraudulent purchases of public land being declared void, see §29-1-11.

Insurance rehabilitation and liquidation – voiding of fraudulent transfers, see §83-24-27.