Baird v. Larson
| Decision Date | 02 April 1940 |
| Docket Number | 6651 |
| Citation | 291 N.W. 545,69 N.D. 795 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A cause of action to foreclose a mortgage accrues when the debt matures.
2. Payment by one maker of a joint and several note does not interrupt the running of the statute of limitations as against another maker where the payment was not made with the authority or consent of the other joint maker.
3. Renewal or part payment of the debt by one of two joint debtors suspends the running of the statute of limitations as to both debtors upon a joint mortgage given to secure the debt.
4. Where husband and wife have given a joint mortgage upon non-homestead property held in the name of the husband to secure their joint and several note, and thereafter the property is deeded to the wife and subsequent to her death while intestate, the debt is renewed by a note given by the husband before the statute of limitations has run against either the note or the mortgage, the renewal of the note by the husband tolls the statute of limitations as to the right to foreclose the mortgage against the interest of all the heirs of the deceased wife in the mortgaged property.
5. Where a mortgage given prior to July 1, 1919, is foreclosed the rights of the purchaser at the foreclosure sale to rents and profits or the value of the use and occupation of the premises during the period of redemption are governed by Section 7762, Compiled Laws N.D.1913.
Appeal from District Court, Pembina County; W. J. Kneeshaw, Judge.
Action by L. R. Baird, as receiver of the Farmers State Bank of St Thomas, against G. H. Larson and others, to foreclose a mortgage. From an adverse judgment, the plaintiff appeals.
Modified and affirmed.
Traynor & Traynor, for appellant.
Because the debt secured by a mortgage is barred by the statute of limitations in six years after it becomes due, it does not follow that the right to foreclose the mortgage is gone. The statute fixes the period within which foreclosure may be had at ten years. Satterland v. Beal, 12 N.D. 122, 95 N.W. 518.
Payment on the debt, or other acts which interrupt the running of the statute of limitations on the debt, also prevents the statute from running on the security. Omlie v. O'Toole, 16 N.D. 126, 112 N.W. 677.
A mortgage may be foreclosed after the statute of limitations has barred an action on the note for which the mortgage is security. McCarty v. Goodsman, 39 N.D. 389, 167 N.W. 503.
Part payment by the husband in a regular manner during the life of the mortgage is not such an act as discharges the mortgage as to the wife, although it had the effect of continuing the lien of the mortgage longer than it would otherwise have continued. Roberts v. Roberts, 10 N.D. 531, 88 N.W. 289; Smith v. Scherck, 60 Miss. 491.
The general, if not the universal, rule is that a partial payment or an acknowledgment of the debt which would prevent the statute from running against it will also prevent the statute from running against the remedy on the security. Carson v. Cochran, 52 Minn. 67, 53 N.W. 1130; Hansen v. Branner, 52 N.D. 892, 204 N.W. 856.
The mortgage is incident to the debt, and as payment of the latter extinguishes the lien of the former, so, by a parity of reasoning, the renewal of the debt extends the lien of the mortgage, 19 R.C.L. 463; Albaugh v. Osborne-McMillan Elevator Co. 53 N.D. 113, 205 N.W. 5; First Nat. Bank v. Northwestern Elevator Co. 4 S.D. 409, 57 N.W. 77; Clute v. Clute, 197 N.Y. 439, 90 N.E. 988, 27 L.R.A.(N.S.) 146; Lawton v. Adams, 13 Ohio C.C. 233; Kaiser v. Idleman (Or.) 108 P. 193, 28 L.R.A.(N.S.) 169.
Any act of the mortgagor which arrests the running of limitations as to him arrests it as to his grantee with actual or constructive notice of the mortgage. Stein v. Kaun (Ill.) 91 N.E. 77.
Part payment on a debt secured by a real estate mortgage, when made by one having authority to bind the property, tolls the statute limiting the time within which suit for foreclosure of the mortgage may be brought. McLaughlin v. Senne, 78 Neb. 631, 111 N.W. 377; Hollister v. York, 59 Vt. 1, 9 A. 2; 2 Jones, Mortgages, 1198; Jackson v. Longwell (Kan.) 64 P. 991; Du Bois v. First Nat. Bank, 43 Colo. 400, 96 P. 169.
An owner of an undivided half of a lot of land sold under mortgage foreclosure can only redeem his share by redeeming the entire estate mortgage. Buettel v. Harmount, 46 Minn. 481, 49 N.W. 250.
A grantee of the mortgagor cannot maintain an action to cancel the sheriff's certificate and deed as against the mortgagee in possession, without paying the mortgage debt, even though the statute of limitations has run against the mortgage. Boschker v. Van Beck, 19 N.D. 104, 122 N.W. 338.
When a person in favor of or against whom a cause of action exists dies before the cause of action accrues, the statute of limitations will not begin to run before an administrator of his estate has been appointed. 17 R.C.L. 850.
Gray & Nordmarken and A. L. Miller, for respondents.
A payment of one of two co-makers of a joint and several note does not suspend the running of the statute of limitations in favor of the other. Langlie v. Loge, 59 N.D. 399, 230 N.W. 211; Baird v. Herr, 64 N.D. 572, 254 N.W. 555.
When plaintiff on pleadings and evidence shows that more time than that limited by the statute for commencing the action has expired since the cause of action accrued, the burden is upon the plaintiff to show that the running of the statute had been suspended a sufficient length of time to avoid the statute pleaded by the defendants. Paine v. Dodds, 14 N.D. 189, 103 N.W. 931; Dielmann v. Bank, 8 S.D. 263, 66 N.W. 311; Torrey v. Campbell (Okla.) 175 P. 524; Mason v. Henry, 152 N.Y. 529, 46 N.E. 837; Davis v. Roger (Wash.) 222 P. 499; Richardson v. Williamson, 24 Cal. 289.
This is an action to foreclose a real estate mortgage on a lot in the city of St. Thomas in Pembina county. The mortgage is dated July 24, 1914, and was given by G. H. Larson and Christina Larson, his wife, as mortgagors to Farmer's State Bank at St. Thomas, mortgagee, to secure a promissory note for $ 1,200. The note bears indorsements of payments on principal or interest, the last indorsement being on January 15, 1928. The balance of the indebtedness was renewed by a note dated January 16, 1928, and signed by G. H. Larson, alone, for the sum of $ 390.
At the time the mortgage was executed G. H. Larson was the title owner. On July 20, 1923, he deeded the premises to Christina Larson who died November 16, 1926. Her estate has never been probated. She left as heirs-at-law her husband, G. H. Larson, and twelve children. One of these children has since died leaving three heirs-at-law. All of these children and grandchildren together with the husband, G. H. Larson, are made parties defendant in this case. Upon the death of Christina Larson her husband became entitled to an undivided one third and the children to an undivided two thirds of the property herein involved under the laws of descent and distribution of this state. He still owned that interest at the time this action was instituted. The trial court held that the execution of this note by G. H. Larson only bound him personally and did not in any way bind the estate or other heirs of Christina Larson and did not toll the running of the statute of limitations against the mortgage except as to the interest of G. H. Larson in the premises. The court having determined that the ten-year statute of limitations had run as to all of the defendants except G. H. Larson decreed foreclosure only as to his undivided one-third interest. He further decreed that the defendants other than G. H. Larson take and hold as owners thereof collectively an undivided two-thirds interest in the premises free from any lien of the mortgage.
The plaintiff who is the receiver of the original mortgagee appeals and presents two contentions in this court. The first contention deals with the application of the statute of limitations. He asserts that the renewal note executed by G. H. Larson tolls the running of the statute of limitations upon the mortgage and as to the interest of all of the defendants in the land described therein, and that the court erred in refusing to decree foreclosure as against the interest of all defendants.
The plaintiff also contends that the court erred in failing to make findings of fact and conclusions of law to the effect that the holder of the sheriff's certificate on foreclosure of this mortgage is entitled to the rents and profits and the value of the use and occupation of the premises during the period of redemption, the point being that when the mortgage was executed and delivered in 1914 the holder of the sheriff's certificate in event of foreclosure was so entitled, the law not being changed in this respect until July 1, 1919. As to the last contention the respondent asserts that the point raised is not before this court since it was not at issue.
We will...
To continue reading
Request your trial