American Mortg. Co. v. Milam

• Court: Arkansas Supreme Court
• Writing for the Court: Wood
• Citation: American Mortg. Co. v. Milam, 42 S.W. 417, 64 Ark. 305 (Ark. 1897)
• Decision Date: 09 October 1897
• Parties: AMERICAN MORTG. CO. OF SCOTLAND et al. v. MILAM.

42 S.W. 417

AMERICAN MORTG. CO. OF SCOTLAND et al. v. MILAM.

Supreme Court of Arkansas.

October 9, 1897.

Appeal from circuit court, Franklin county; Jephtha H. Evans, Judge.

Ejectment by the American Mortgage Company of Scotland and J. K. O. Sherwood against C. J. Milam. Judgment for defendant. Plaintiffs appeal. Affirmed.

The deed of trust upon which plaintiffs based their claim was executed January 24, 1883. The note therein described was payable five years after said date.

L. C. Hall (Watson & Fitzhugh, of counsel), for appellants. Virgil Bourland, for appellee.

WOOD, J.

This was an action in ejectment, brought by appellants January 19, 1895, to obtain possession of a certain tract of land which they claimed under a deed of trust executed February 13, 1883, by Rufus K. Milam and wife to J. K. O. Sherwood, trustee for appellants. Appellee claimed title under a deed from said Milam and wife, executed to him on the 3d day of October, 1893, and he pleaded "that plaintiffs' cause of action had not accrued within five years." This plea presents the only question. The deed of trust was given to secure an indebtedness of $500, evidenced by an unsealed promissory note of even date with said deed. It is conceded, if the five-years statute of limitations applies, the action is barred. But it is contended: First, "that the act of March 25, 1889 (section 5094, Sand. & H. Dig.), does not apply"; second, "that, if said act does apply, the deed of trust, being sealed, and containing a covenant or promise to pay the debt, makes ten years the period of limitation to this action."

1. The first part of section 5094, Sand. & H. Dig., is as follows: "In suits to foreclose or enforce mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given." Under this statute, suits in equity to foreclose, as well as suits at law for the possession of the property mortgaged, must be brought within the period of limitation for a suit on the debt which the mortgage or deed of trust was given to secure. The purpose of the legislature was, simultaneously with the barring of the debt, to extinguish every remedy under the mortgage or deed of trust securing it. Appellants are seeking to enforce their mortgage, although not by a suit to foreclose the equity of redemption; and they come within the express terms of the statute...