Camden v. Alkire.

• Decision Date: 27 September 1884
• Citation: 24 W.Va. 674
• Parties: Camden v. Alkire.
• Court: West Virginia Supreme Court

24 W.Va. 674

Camden

v.Alkire.

Supreme Court of Appeals of West Virginia.

Submitted June 26, 1884

Decided September 27, 1884.

The right to enforce the lien of a trust-deed against the trust-property being an equitable and not a legal remedy, the statute of limitations has no direct operation upon such right; but the general rule adopted by courts of equity as to the limit for the enforcement of such lien is by analogy to the right of entry at law under the old statute of limitations 21 Jac. 1, c. 15 that twenty years7 possession by the grantor after default of payment of the trust-debt by the terms of the deed, without any acknowledgment or recognition of a subsisting lien, is a bar, unless the beneficiary is within some of the exceptions made for disabilities, (p. 677.)

2. In some of the States, in which the limitation of the right of entry on land has been fixed at a period longer or shorter than twenty years, courts of equity in those States, following the analogy of those statutes, have made the time within which the lien of a mortgage or trust-deed will be enforced the same. But in this State this rule is not followed, and the period of twenty years has been adhered to, notwithstanding the time fixed by our statute for the entry on land has been made less than twenty years, (p. 677.)

3. The presumption of payment which arises from the non-enforcement of the trust-deed for twenty yesrs, is not adopted as a fixed and positive limitation, but as an equitable rule and by analogy to the old statute of limitations; and it may, therefore, be varied, and made to operate at a longer or shorter period, depending upon circumstances and the relations of the parties, (p. 679.)

4. A purchaser from the grantor, as well as all subsequent vendees, where the trust-deed is duly recorded, has no greater rights against the creditor than the grantor himself, and the title and possession of the one are no greater than the other. The purchaser from the grantor is bound by the acts and declarations of the grantor in respect to the trust while he retains the equity of redemption or any part of it. (p. 679.)

5. The fact that the debt secured by the deed is barred by the statute of limitations does not as a general rule extinguish the security or prevent the enforcement of the lien by suit. (p. 680.)

6. In equity the trust-deed is always regarded merely as a security for the debt and the debt as the principal thing; therefore, so long as a recovery at law on the bond or note given for the debt is not barred by the statute of limitations, the right to enforce the lien of the trust continues and may be enforced, (p. 680.)

7. A trust-deed made to secure a debt is in legal effect a mortgage and is governed by the same legal principles as to the rights growing out of it in regard to the lapse of time as well as in many other respects, (p. 680.)

The facts of the case appear in the opinion of the Court.

W. E. Lively for appellant.

No appearance for appellee.

Snyder, Judge:

Oliver Alkire executed to R. P. Camden his bond for seven hundred and sixty-six dollars and eighty cents dated February 4, 1858, payable one year thereafter, and at the same date he executed a trust-deed by which he conveyed to J. N Camden, trustee, a tract ot one hundred and thirty-five acre ot land in Lewis county to secure the payment of said debt which deed was duly recorded in said county on the day of it ' date. Subsequently, by deed dated July 5, 1858, he sold and conveyed said tract of land to G. J. Butcher, and as n j part of the consideration for said sale and conveyance, Butche agreed and bound himself to pay oft said trust-debt to R. P. Camden. In 1866, Butcher, by an executory contract o title-bond sold and bound himself to convey said tract ol land to Alexander A. Brown. A short time thereafter, in the early part of 1867, Brown was put in the actual posses sion of the land and has so continued ever since. Brown paid all the purchase-money for theland to Butcher at the time or soon after his said purchase, but the land was no; conveyed to him until August 25, 1878, when Butcher and wife conveyed the same to him by deed with general warranty of title.

In pursuance of his said agreement with Alkire, on the 4th day of May, 1869, Butcher paid to R. P. Camden on said debt nine hundred and ninety-six dollars and sixty-one cents, and on June 26, 1877, Flora Camden, the administratrix of R. P. Camden, then deceased, brought an action of debt in the county court of Lewis county against Oliver Alkire for the residue of said debt, in which action judgment was rendered on February 26, 1880, in favor of the plaintiff lor four hundred and seventy-four dollars and four cents by the circuit court of said county to which court said action had been removed. Execution issued on this judgment and was returned "no property found."

In August, 1877, Butcher died insolvent and J. N. Camden, the trustee, having declined to execute the trust imposed t by the aforesaid trust-deed to him, the said Flora Camden, as administratrix of R. P. Camden, deceased, on May 15, 1880, brought this suit in the circuit court ot Lewis county against said Alkire, Brown, J. E". Camden, trustee, and the administratrix and heirs of said Butcher for the purpose of enforcing said trust-deed by a sale of said tract of one hundred and thirty-five acres of land in default of the payment of the unpaid balance of the said trust-debt. The defendant Brown answered, insisting that the plaintiff and her testator by laches and the lapse of time had lost their right to enforce said trust-deed or to subject said land to the payment of said debt; and he pleaded and relied on the statute of limitations, the presumption of payment and the staleness of the plaintiff's demand as a complete bar to any relief against him or said land.

On March 18, 1882, Edwin Maxwell as special judge of the said.court, sitting in this cause, "being of opinion that the right of the plaintiff to subject" the said land to the payment of said debt was "barred by the statute of limitations," dismissed the bill with costs as to all the defendants except Alkire. From this decree the plaintiff has appealed to this Court.

It appears from the pleadings and proofs that, in May, 1863, the defendant, G. J. Butcher, went out of Lewis county to Augusta county, Virginia, within the Confederate military lines and continued within the lines of the Confederate army from that time until February, 1865, when he returned to Lewis county and resided there until his death in the year 1877.

The only question presented for our decision is, whether or not the plaintiff's right to relief against the said one hundred and thirty-five acres of land is barred by the statute of limitations or the lapse of time?

The right to enforce the lien of a mortgage or trust-deed being an equitable and not a legal remedy, the statute of limitations has no direct operation upon such right, but the general rule adopted by courts of equity in regard to the redemption or enforcement of mortgages is by analogy to the right of entry at law, under the old statute ot limitations, 21 Jac. 1. c. 16, that twenty years' possession by the mortgagor or mortgagee without any account or acknowledgment of a subsisting mortgage is a bar, unless the party who invokes the aid of the court is within some of the exceptions made for disabilities. In some of the States, in which the limitation of the right of entry on land has been made by statute more or less than twenty years, following the analogy of those statutes, the time within which the mortgagor may redeem from the mortgagee in possession will be the same; as tor instance, the statute of limitations of Connecticut prescribing fifteen years as the period beyond which an entry shall not be made, a mortgagor is there barred by the lapse of that period during which the mortgage-title has not been recognized by the mortgagee in possession Jarvis v. Woodruff, 22 Conn. 548; Dawson \. Ilozle, 58 Ala, 44.

But in Virginia and this State this rule is not followed, and the period of twenty years has been adhered to, notwithstanding the time fixed by the statute for the Qntry on land is limited to less than twenty years. The rule in these States and, perhaps others, seems to be, that such lapse of time affords evidence of a presumption that the mortgagor has abandoned his right, or, in case of a trust-deed, that the debt secured has been paid Ross v. Norvell, l Wash. 14; Pltzer v. Burns, 7 W. Va. 63; ...