....

.....

State, Angling v. (Ala.).
State, Banks v. (Ala.).
State, Blau v. (Miss.)
State, Brass v. (Fla.)..
State, Brown v. (Ala.).
State, Bryan v. (Fla.).
State, Burnes v. (Miss.).
State, Caddell v. (Ala.).
State, Carle v. (Ala.).
State, Carr v. (Fla.)..
State, Collins v. (Ala.).
State, Collins v. (Ala.).
State, Cousins v. (Miss.).

State, Cowan v. (Ala.)....

State, Cox v. (Ala.)..
State, Deal v. (Ala.).
State, Dillard v. (Ala.).
State, Durr v. (Ala.).
State, Ferrell v. (Fla.).
State, Fooshee v. (Miss.).
State, Freeney v. Ala.).
State, Green v. (Ala.).
State, Greene v. (Ala.).
State, Hainsworth v. (Ala.)..
State, Hall v. (Ala.).

State, Henderson v. (Ala.).
State, Henry v. (Ala.).
State, Hill v. (Ala.).
State. Hilliard v. (Ala.).
State, Holmes v. (Ala.).
State, Hudson v. (Ala.).
State, Jackson v. (Ala.).
State, Jackson v. (Ala.)..
State, Jackson v. (Ala.).
State, Jackson v. (Fla.).
State, Jarvis v. (Ala.).
State, Jenkins v. (Miss.).
State, Johnson v. (Ala.).
State, Johnson v. (Ala.).
State, Jones v. (Ala.).
State, Jones v. (Ala.)..
State, Joseph v. (Ala.).
State, Kennedy v. (Ala.).
State, Kimble v. (Fla.)...
State, King v. (Ala.)..
State, Kiunie v. (Ala.).
State, Knuckols v. (Ala.).
State, Lane v. (Miss.).

State, Lawrence v. (Fla.).
State, Little v. (Ala.)..
State, Longshore v. (Ala.).
State, McCray v. (Fla.).

....

State, McMaster v. (Miss.). State, McNish v. (Fla.).. State, Martin v. (Ala.)....

243 State, Wright v. (Ala.).

.1038 State, Wright v., two cases (Ala.).

191 State, Wright v. (Miss.)

323

Page

.1011

177

.1035

279

187

233

.1009

.1033 State ex rel. Bachet v. Sommerville (La.) 953 892 State ex rel. Byrnes v. Sommerville (La.) 757 403 State ex rel. Cotonio v. Marmouget (La.)... 408 993 State ex rel. Des Allemands Lumber Co. v. Allen (La.).. 804 193 State ex rel. Lindner v. New Orleans (La.) 582 168 State ex rel. Mounier v. Board of Pharma23 851 State ex rel. New Orleans & C. R. Light & Power Co. v. St. Paul (La.).

cy (La.)

159

.1033

750

State, Pope v. (Ala.).

State, Pulpus v. (Miss.).
State, Reed v. (Ala.).
State, Ringeman v. (Ala.).
State, Roberson v. (Fla.).
State, Roden v. (Ala.).
State, Rogers v. (Miss.).
State, Rollings v. (Ala.).
State, Sandwich v. (Ala.).
State, Short v. (Miss.).
State, Sims v. (Ala.).
State, Smith v. (Ala.).
State, Smith v. (Ala.).
State, Stanley v. (Miss.).
State, Starks v. (Ala.)..
State, Stephens v. (Fla.).
State, Stewart v. (Ala.).
State, Stone v. (Ala.)..
State, Streater v. (Ala.).
State, Syzemore v. (Ala.).
State, Tarver v. (Ala.)..
State, Townsend v. (Ala.).
State, Verberg v. (Ala.).
State, Watkins v. (Miss.).

631

627

300

905

5 Teal v. McKnight (La.).

434

156 Texas & P. R. Co., Leo v. (La.)..

417

219 Thayer, Town of Orange City v. (Fla.).. 573 205 Third District Market Co. v. Board of As

or.

2. The unsecured creditors of a debtor cannot compel him to plead the statute of limitations as a bar to recovery by creditors whose claims are secured.

3. Where a debtor has deeded certain property to secure the claims of some of his creditors, other creditors, whose claims are unsecured, cannot insist upon a court of equity annulling the deed without offering to pay the secured claims.

Appeal from Chancery Court, Tunica County; A. McC. Kimbrough, Chancellor.

Attachments by W. T. Anderson, executor, and by the Bank of Bolivar against A. T. McNeal and another. From an order overruling a demurrer to defendants' cross-bill, complainants appeal. Affirmed.

In February, 1902, W. T. Anderson, executor, and the Bank of Bolivar, each filed attachment suits in the chancery court of Tunica county against A. T. McNeal and John Bills, residents of the state of Tennessee, alleging that said McNeal was a nonresident of the state of Mississippi, and was the owner of certain lands in Tunica county, Miss. described in the bill, and that said McNeal was indebted to each of them in the sums named in the bills for money loaned to him; that on December 1, 1894, said NcNeal, by his deed of that date, undertook to convey the lands described in the bill to J. H. Bills for the alleged consideration of $2,000, but in said deed he erroneously described part of the land, but which mistake he corrected by a correction deed dated March 27, 1900; that also by deed of November 14, 1899, said McNeal pretended to convey by his deed of that date land in section 35 for an alleged consideration of $960 cash. They further allege that the consideration as recited in all of said deeds was fictitious, and no consideration passed from the said Bills to said

1. See Limitation of Actions, vol. 33, Cent. Dig. 678. 34 So.-1

McNeal for said debts, and that they were voluntary, and void as to creditors of said McNeal whose debts existed at the time they were executed; that appellants were such creditors; and that said McNeal was still the owner of said lands, so far as such creditors were concerned. The bills prayed for an attachment. Upon the filing of these bills attachments were issued, and levied on all lands described in the bills. Francis O. Smith, Ophelia Bills, Mary W. Bills, and Lillias Bills were admitted as parties defendant to the suits, and the two cases were consolidated. They filed a joint answer, in which they admitted all allegations of original bills, except that the deeds of McNeal to Bills were without consideration and void. They deny this, and make following allegations: That on December 1, 1894, the said McNeal was indebted to Ophelia Bills in the sum of $1,000, due 12 months after date; to Mary W. Bills in the sum of $500, due 12 months after date; and to Lillias Bills in the sum of $500, due 12 months after date; and that for the purpose of securing the payment of these several debts said McNeal executed the deed dated December 1, 1894, conveying said land absolutely to said J. H. Bills, who was the brother of the payees of said notes; and that contemporaneously with the execution of the said deed J. H. Bills executed and delivered to said McNeal a defeasance showing the nature of the transaction. That said McNeal was further indebted to Francis O. Smith in the sum of $3,000, and that on the 29th day of August, 1894, he executed two notes for the sum of $1,500 each, one payable November 20, 1895, and the other November 20, 1896, and that when the first note became due McNeal was unable to pay it, and, with the consent of all parties concerned, for the purpose of securing Francis O. Smith this amount, the said McNeal interlined in the defeasance executed to J. H. Bills by him December 1, 1894, to whom the said J. H. Bills was to reconvey to said McNeal after the money borrowed from Francis O. Smith was repaid. They admitted that McNeal is the owner of the land described in the bill subject to their rights against the same for

the payment of their indebtedness, and allege that said conveyances to J. H. Bills were mortgages for the payment of his indebtedness to them, and that said McNeal was still the owner of the equity of redemption in the land. The defendants made their answer a cross-bill, and allege, in substance, the facts hereinbefore set out, and asked that said deeds to said J. H. Bills be declared mortgages on said lands in favor of Ophelia, Mary W., and Lillias Bills and Francis O. Smith, and that they be foreclosed by the court, and said lands sold, and that their several indebtednesses be fully paid, and the balance, if any, paid to complainants on their debts. Complainants demurred to the cross-bill, assigning, among other causes, that all the indebtedness except the last note for $1,500 was barred by the statute of limitations of six years, under section 2737, and the remedy is barred under section 2733 of the Code of 1892, and the lien of said deeds, if understood as mortgages, were also barred under section 2755 of said Code. The demurrer was overruled, and complainants appeal.

St. John Waddell, for appellants. Patterson, Neely & Henderson and Gilman P. Smith, for appellees.

CALHOON, J. The fundamental mistake of appellants is the idea that under our statute the mere lapse of the time required to bar the remedy bars it, and extinguishes the right, whether the debtor chooses to plead it or not. This is an erroneous view. The statute never operates to extinguish the right unless it is pleaded. But McNeal has not pleaded it. In fact, he refuses to plead it, and none can compel him to do so, and, as a consequence, the remedy is not barred, and the right is not extinguished. The debts being in full force, McNeal alone can plead the bar. His creditors cannot make him plead it, as it is his personal privilege to do so or not, as he pleases; and appellants' rights cannot rise higher than those of the secured creditors where he refuses to plead the bar. On the subject of the statute of limitations applicable here, we simply refer to Bower v. Henshaw, 56 Miss. 619; Robinson v. Moore, 76 Miss. 89, 23 South. 631; Kennard v. Alston, 62 Miss. 763; Hunt v. Belknap, 78 Miss. 76, 28 South. 751.

By the deed of March 27, 1900, duly recorded, Bills held the legal title to the lands which were attached in 1902. He says he holds it in trust for the security of appellees, creditors of McNeal. The attaching creditors are in the shoes of McNeal, and can have no higher rights than he, and equity would not listen to a prayer by him to annul Bills' title without offering to pay the secured credItors.

Appellants and appellees are all creditors of McNeal, and their claims and rights must not be confused with claims and rights

which might be well asserted by creditors of Bills against his concealed beneficiaries. The distinction is obvious, and with it in mind the solution of the question in this record is easy. A sale by Bills to a purchaser without notice would, of course, carry the title, and so an attachment by a creditor of Bills would outrank all these Tennessee people. But the controversy between themselves presents a very different case, all being genuine creditors of McNeal. Code, § 4230, has no pertinency to this contest in the category of the parties in this case.

Affirmed, and remanded, with 60 days to appellants to answer the cross-bill after mandate filed below.

PULPUS. STATE.

(82 Miss. 548)

(Supreme Court of Mississippi. April 6, 1903.)

HOMICIDE EVIDENCE-STATEMENTS IN DEFENDANT'S ABSENCE CONSPIRACY -SEEK

ING DIFFICULTY-SELF-DEFENSE-INSTRUCTIONS.

1. A statement by a third person, in defendant's absence, that certain persons were not going to report deceased for striking defendant in a previous difficulty, but "were going to get him," was inadmissible, in a prosecution of defendant for killing deceased, where there was no sufficient evidence of a conspiracy.

2. Where, in a prosecution for murder, defendant contended that, as he passed deceased, deceased hailed him and stated that he was going to kill defendant, when defendant turned to go away, but was struck by a frow which deceased threw at him, and was knocked down, and while in this position deceased approached with a raised ax to strike defendant, when defendant shot him, and the course of the balls showed that they could not have been fired by a man while standing, an instruction that if defendant was hunting deceased to kill him armed with a deadly weapon, and, when he found him, provoked a difficulty, or was the aggressor in the difficulty in which he killed deceased, he was guilty of murder, though the killing was in self-defense, was error.

3. The fact that defendant provided himself with a deadly weapon and sought another with a design to kill him, and was the aggressor in the encounter in which he killed deceased, did not deprive him of the right of self-defense, if the killing was not pursuant to the original purpose to kill.

4. In a prosecution for homicide, it was error to permit evidence that another, jointly indicted with defendant, and who was under bonds for appearance, was out of the state, and not present pursuant to his bond.

Appeal from Circuit Court, Chickasaw County; E. O. Sykes, Judge.

Austin Pulpus was convicted of murder, and he appeals. Reversed.

T. J. Buchanan and Gilleylan & Leftwich, for appellant. Wm. Williams, Atty. Gen.,

for the State.

CALHOON, J. The defendant and Alex Pulpus and Arthur Orr were jointly indicted for the murder of George Anderson. At the next term, Isaiah Gillespie was separately indicted for this same offense. We have only

3. See Homicide, vol. 26, Cent. Dig. § 145, 146, 149.