33 P. 44 (Idaho 1893), Kelly v. Leachman

• Judge: MORGAN, J. Huston, C. J., and Sullivan, J., concur. Huston, C. J., and Sullivan, J., concur.
• Parties: KELLY v. LEACHMAN
• Date: 08 May 1893
• Docket Number: .
• Citation: 3 Idaho 629,33 P. 44
• Court: Idaho Supreme Court

Page 44

33 P. 44 (Idaho 1893)

3 Idaho 629

KELLY

v.

LEACHMAN

Supreme Court of Idaho

May 8, 1893

STATUTES OF LIMITATIONS-EFFECT OF.-The statute of limitations acts upon the remedy, and not upon the debt, and the running of the statute does not extinguish the debt nor impair the lien of the mortgage given to secure the same.

ACKNOWLEDGMENT OF PRE-EXISTING DEBT.-A promise in writing signed by the party to be charged thereby to pay the interest due upon the whole of a pre-existing debt, given by the debtor to the creditor, is an unequivocal acknowledgment of the whole debt, from which a promise to pay the same may, and ought, to be implied.

SAME-PAROL TESTIMONY.-The identity of the sum included in the promissory note with the interest due on the pre-existing debt, and that it was given for such interest, may be proven by parol testimony.

(Syllabus by the court.)

APPEAL from District Court of Nez Perces County.

This is an action to foreclose a mortgage. On the twenty-sixth day of July, A. D. 1883, S. S. Leachman, defendant, gave M. A. Kelly, plaintiff, a deed to certain real estate described therein. This deed was absolute on its face. On the same day the plaintiff, M. A. Kelly, and S. S. Leachman, defendant, entered into an agreement, by the terms of which the said Leachman was permitted to repurchase said land by paying to said Kelly the amount named in said deed as the consideration therefor, with interest thereon at the rate of one and one-half per cent per month, on or before the expiration of thirty months from above date. The said Leachman agreed, further, to pay the said interest, all taxes and assessments, as the same should become due, and in like manner to pay the interest on a certain mortgage, for the sum of $ 250, made by said Leachman and wife to the Corbin Banking Company, which said mortgage was a lien upon the land described in said deed; to suffer no waste, injury or damage to be committed upon or to said premises--and providing that, if said payments should be made at the time they should become due, the plaintiff would reconvey said land to defendant Leachman. Defendant failed to pay according to contract, and plaintiffs brought this suit to foreclose. Complaint, filed July 13, 1892, is in the ordinary form, except the following allegations, which, it is claimed, relieve the action from the operation of the statute of limitations: After setting up the substance of the mortgage, plaintiff alleges "that thereafter, on December 15, 1885, in consideration of the foregoing facts, the defendant acknowledged the continuance of the said mortgage by executing to the plaintiff, M. A. Kelly, his promissory note, due ten months after date, with interest, for the sum of $ 725.50, including in said sum of $ 725.50 the sum of $ 190 as the amount of annual interest then due, as agreed upon by plaintiff, Kelly, and defendant, upon said sum of $ 1,661.39, the consideration of the said mortgage; that said note is still due and unpaid; that thereafter, on May 14, 1886, defendant again acknowledged the continuance of said mortgage by executing to said plaintiff Kelly his promissory note for $ 295.52, as and for the amount then due and had been paid by said Kelly on the mortgage executed by said Leachman and wife to the said Corbin Banking Company, as mentioned and described in said mortgage; that said note is due and unpaid; that defendant again, on November 6, 1887, acknowledged the continuance of the said mortgage by executing to the plaintiff, Kelly, his promissory note, due ninety days after date, for the sum of $ 306, and included in said note the sum of $ 239.50 as the amount of annual interest then due, as agreed upon between said plaintiff Kelly and defendant, upon the said sum of $ 1,661.39, before mentioned; that defendant, on October 15, 1889, again acknowledged the continuance of said mortgage by executing his note to plaintiff Kelly, due six months after date, for the sum of $ 440.75, and included therein $ 300, annual interest on said mortgage for $ 1,661.39." On July 22, 1892, defendant demurred to the complaint for misjoinder of parties, and on the ground that the complaint did not state facts sufficient to constitute a cause of action. On February 15, 1893, and before said cause was called for hearing, defendant filed a second demurrer, alleging that the cause of action was barred by the statute of limitations, and that the complaint showed no fact that removed the bar. Plaintiffs moved to strike out the second demurrer, which motion the court denied, and upon the hearing sustained the demurrer as to the statute of limitations, and, the plaintiffs declining to amend, the cause was dismissed, with costs to defendant. The plaintiffs appeal from the judgment of dismissal.

James W. Reid and Rand & Howe, for Appellants.

There was a demurrer to the complaint filed on July 22, 1892, within the time prescribed for pleading, and without leave of the court or consent of plaintiffs a second demurrer was filed on February 15, 1893, raising the statute of limitations. Plaintiffs moved to strike out the second demurrer, which motion was overruled by the court and plaintiffs excepted. The court overruled the first demurrer but sustained the second, and the plaintiffs declining to amend, there was judgment for the defendants and plaintiffs appeal. The court should not have allowed the second demurrer. (Rev. Stats., secs. 4193, 4194, 4228; Hedges v. Dam, 72 Cal. 520, 14 P. 133.) A mortgage is simply a security and its lien special. (Rev. Stats., secs. 3350, 3353, 3328.) The lien of a mortgage in Idaho does not cease to exist until foreclosure, release or it becomes stale. (Rev. Stats., secs. 3364, 3365; 15 Am. & Eng. Ency. of Law, 869.) Under section 4052 of the Revised Statutes the lien is not extinguished, the remedy only is barred or suspended. (13 Am. & Eng. Ency. of Law, 690.) As the mortgage sued on had not been foreclosed, released or become stale, section 3351 of the Revised Statutes of Idaho has no application. By the allegations of the complaint it appears that the defendant acknowledged the continuance of the debt and the lien of the mortgage, and restored the suspended remedy. (Rev. Stats., sec. 4078; Reed v. Smith, 1 Idaho, 533.) Part payment is an unequivocal acknowledgment of the debt upon which the payment is made. "Part payment is the best of all acknowledgments." (3 Parsons on Contracts, 73; Barron v. Kennedey, 17 Cal. 574.) Under the Idaho statute part payment acknowledges the debt, takes the case out of the statute and, if the creditor can show payment or acknowledgment in some writing, his remedy is not barred.

E. O'Neill, for Respondent.

Section 4228 of the Revised Statutes provides "a pleading may be amended once by the party of course . . . . after demurrer, and before the trial of the issue of law thereon, by filing the same as amended, serving copy on the adverse party. A demurrer is a pleading." (Rev. Stats., sec. 4162; Hedges v. Dam, 72 Cal. 520, 521, 14 P. 133.) Section 4231 of the Revised Statutes: "The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties and no judgment shall be reversed or affected by reason of such error or defect." Plaintiff must show that prejudicial error has been committed, not by his own showing that the decision appealed from is right. (Hayne on New Trial and Appeal, sec. 286; Elliott's Appellate Procedure, sec. 292; Tohler v. Folsom, 1 Cal. 213; Smith v. Compton, 6 Cal. 26.) Plaintiff's action is the foreclosure of the mortgage, evidenced by the deed and defeasance. It is the foreclosure of a certain mortgage. The two papers constitute a mortgage. (Kelley v. Leachman, ante, p. 392, 29 P. 849.) That mortgage is a contract. (Rev. Stats., sec. 3350.) That contract, unless evidence under the allegations of the complaint can be introduced that will show a new or continuing contract, is barred by section 4052 of the Revised Statutes of Idaho. Section 4078 reads: "No acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of this title unless the same is contained in some writing signed by the party to be charged thereby." ( Reid v. Smith, 1 Idaho, 535.) The acknowledgment say the cases must be a direct, unqualified and unconditional admission of the debt, which the party is liable and willing to pay." (Citing Bell v. Morrison, 1 Pet. 351; Sands v. Gelston, 15 Johns. 511; Jones v. Moore, 5 Binn. 573, 6 Am. Dec. 428; Berghaus v. Calhoun, 6 Watts, 219; De Forrest v. Hunt, 8 Conn. 185; Russell v. Copp, 5 N.H. 154; Harrison v. Handley, 1 Binn. 443; Bell v. Rowland, 1 Hard. 301, 3 Am. Dec. 729; Angell on Limitations, sec. 231, and note.) "When, however, there are several papers which, together make up the memorandum, they will not be sufficient for that purpose, unless they are so connected, either...