BEFORE DAN LEE, ROBERTSON AND GRIFFIN.
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
On June 4, 1986, Rankin County Bank filed a complaint in the Chancery Court of Rankin County, Mississippi, against the McKinions seeking a deficiency judgment in the amount of $27,211.52 plus interest and attorney's fees. The McKinions answered the complaint and affirmatively asserted the defense that the claim was barred by the statute of limitations. On December 8, 1986, after hearing argument on the McKinions' motion to dismiss based on the pleadings, the chancery court entered an order dismissing the complaint, finding that the statute of limitations barred the bank's claim. The bank appeals, based on two propositions. We affirm.
On January 7, 1982, Cleo and Martha McKinion executed a note, due January 7, 1983, payable to Rankin County Bank in the principle amount of $70,257.47, with an interest rate of 17% per annum. This note was secured by a deed of trust on a commercial building and .63 acres of real property located in Rankin County, and a deed of trust covering a commercial lot located in Rankin County. The actual loan proceeds were $68,650.47 plus a title fee of $20 for a total of $68,630.47. An additional $1,607.00 of credit life insurance was added to the loan proceeds to bring the amount financed to $70,257.47. The note provided that the interest would be paid quarterly, with a 15% principle reduction plus interest paid in July of 1982, with the balance to be paid on or before January 7, 1983. The McKinions failed to pay any part of the note and were in default as of July 1982 and continued to be in default at the time of the foreclosure, February 1983.
On February 17, 1983, the Rankin County Bank foreclosed upon and bought the commercial building and .63 acres of real property at the foreclosure under a power of sale provided in the deed of trust for $42,500, less legal expenses and cost of foreclosure, which amount was applied against the principle amount in default.
The bank also foreclosed upon and bought at the foreclosure the commercial lot for the sum of $7,500, less attorney's fees and cost of foreclosure, which was also applied against the note. After applying the proceeds of the foreclosure sale, there remained a deficiency of $27,211.52, plus attorneys' fees and interest under the terms of the promissory note.
In December of 1985, the Rankin County Bank sold both properties to a third party for less than it bought the property at the foreclosure sale. On June 4, 1986, six months after the bank sold the property, the bank filed the complaint in Rankin County Chancery Court, seeking a deficiency judgment of $27,211.52 plus interest and attorney's fees.
I. The Lower Court Erred in Finding that the Promissory Note Upon Which the Appellant's Complaint was Based was an Installment Note within the Meaning of Miss. Code Ann. 15-1-23 (1972), Annotated as Amended.
Rankin County Bank first argues that the promissory note was not an installment note as contemplated by Miss. Code Ann. 15-1-23 (1972), but rather was a time note which falls under Miss. Code Ann. 15-1-49 (1972). Miss. Code Ann. 15-1-23 provides:
In all cases, no suit or action shall hereafter be commenced or brought against any installment note, or a series of notes of three or more, whether due or not, where said note or notes are secured by mortgage, deed of trust, or otherwise, upon any property, real or personal, unless the same is commenced or brought within one year from the date of foreclosure or sale of the property pledged as security for said note or notes.
Miss. Code Ann. 15-1-49 provides for a six-year statute of limitations for all actions for which no other period of limitations is prescribed. In making its argument that the six-year statute of limitations applies and not the one-year statute of limitations, the bank relies upon the argument that the promissory note was not an installment note. The bank's emphasis upon" installment note "is misplaced. The statute's emphasis is on notes secured by a mortgage or deed of trust which have been foreclosed. Foreclosing on a mortgage triggers the one-year statute of limitations for going into court to seek a deficiency judgment on the underlying note. Looking back at the sources from which this particular statute was adopted points out that
the emphasis was on mortgages which had been foreclosed. In Laws 1934, ch. 251, the law was stated thus:
An act to fix the period of limitation within which suits may be brought on notes secured by mortgages, trust deeds, or otherwise, where ...