Appeal from District Court, Brown County; John W. Goodwin, Judge.
KEY, C. J.
We copy from appellant's brief the following statement of the nature and result of this suit:
"In 1907, G. C. Cathey owned the land involved in this suit. He sold it to one E. E. McClain, and McClain executed a vendor's lien note on the land, payable to Cathey, October 1, 1907, bearing 8 per cent. interest from date and providing for 10 per cent. attorney's fees. This note is still unpaid and owned by Cathey. The land was afterwards bought by G. H. T. Dodson, who gave a deed of trust thereon to plaintiff F. B. Weaver to secure a note for the sum of $2,160.75, making Wm. Koonce trustee. This was done February 10, 1911. Dodson then sold the land to D. R. Bailey, who assumed the payment of the $2,160.75 note, payable to Weaver. This last note being unpaid, F. B. Weaver brought this suit against Dodson, Koonce, Bailey, and Cathey to foreclose on the land. In this suit Weaver first charged that the note given to Cathey, which was recited in the deed from Cathey to McClain, and in plaintiff's chain of title, was fictitious, fraudulent, and void, and prayed that the same be held for naught, and that the title be cleared, and that the lien given by Dodson and assumed by Bailey be foreclosed. All defendants except G. C. Cathey made default. Cathey answered, alleging that his note was genuine, and not fictitious or void; that it was due and unpaid; that he held the superior title to the land as well as the vendor's lien to secure the payment of his note; and that McClain was insolvent. He prayed that the court order his note first paid out of the proceeds of the land, and that his equities be fully protected by the decree of the court. In reply to this the plaintiff pleaded the statute of limitations against Cathey's claims. The lower court sustained the plaintiff's pleas of limitations against Cathey's said claims, and rendered judgment, foreclosing plaintiff's lien, and ordering the land sold and the proceeds of the sale applied as follows: First, to the payment of plaintiff; second, any balance to be paid to the defendant Bailey. The defendant Cathey excepted to this judgment, contending that, as the codefendants did not interpose the plea of limitations, any balance at least after paying plaintiff should be paid over to Cathey. Attorney for plaintiff contended and the lower court held that, as the codefendants had not been specially notified or cited to answer defendant Cathey's cross-action, judgment should go altogether against Cathey, and it was so ordered; hence this appeal.
"First. G. C. Cathey contends that the Legislature of 1913, when it curtailed and restricted his right of ejectment, and substituted in lieu thereof the right to foreclose his vendor's lien, which last right had been formerly barred, that it acted within its power, because it simply substituted one legal remedy for another.
"Second. That if the portions of said act of 1913 which undertook to substitute the right to foreclose the vendor's lien in lieu of the right of ejectment, which last right then subsisted in behalf of the vendor Cathey, be void, then the court should disregard the whole of the acts of 1913, relating to this subject, and protect Cathey's rights as the holder of the vendor's superior title, because it is apparent from the legislation referred to and the history thereof that the Legislature of 1913 would not have further curtailed this and other vendors' rights of ejectment who were then barred of their right to foreclose, without extending their rights to foreclose their liens.
"Third. That the lower court was wrong in ordering any excess, after satisfying the claim of plaintiff, to be paid over to codefendants instead of Cathey; because the citation served upon each codefendant notified him that the validity of Cathey's lien would be litigated; and that each codefendant was thereby put upon notice that Cathey was maintaining and would contend that his lien was valid, and as a natural sequel he would ask that his rights as vendor be protected."
Opinion.
The main question in the case is presented under appellant's first assignment of error, and involves the contention that the court erred in holding that appellee Weaver's lien was superior to appellant's prior lien. This contention involves the validity of and construction to be placed upon certain legislation prescribing periods of limitation as against suits to enforce the rights of real estate mortgagees and the vendors of real estate secured by liens upon the property sold. In 1905 (Acts 29th Leg. c. 138) the Legislature passed a law declaring that:
"No power of sale conferred by deed of trust or mortgage on real estate executed after [July 14, 1905] shall be enforced after the expiration of ten years from the maturing of the indebtedness secured thereby. * * * When a vendor's lien is retained to secure the purchase money in any sale of real estate after [July 14, 1905], the right to recover such real estate by virtue of the superior title retained shall be barred after the expiration of ten years from the maturity of the debt; and if suit is not brought for recovery of such real estate within such term, the purchase money therefor shall be conclusively presumed to have been paid."
It was also provided in the same act that the parties might, in a certain manner, extend the time of payment, and that limitation would not begin to run until after the expiration of the time agreed upon. The provisions of that statute are incorporated in the Revised Statutes of 1911 in articles 5693, 5694, and 5695. At the regular session of the Thirty-Third Legislature (Acts 33d Leg. c. 123 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5693-5695]) those articles of the Revised Statutes were amended so as to read as follows:
"Art. 5693. No power of sale conferred by any deed of trust or any mortgage on real estate heretofore executed, or that may hereafter be executed, shall be enforced after the expiration of four years from the maturity of the indebtedness secured thereby, and any sale under such power after the expiration of such time shall be void, and such sale may be enjoined and the lien created in such mortgages or deeds of trust shall cease to exist four years after the maturity of the debt secured thereby. Provided, if several obligations are secured by said mortgage or deed of trust, the same may be enforced at any time prior to four years after the note or obligation last maturing has matured and may be enforced as to all notes or obligations not then barred by the four years statute of limitations.
"Art. 5694. The right to recover any real estate by virtue of a superior title retained in any deed of conveyance heretofore or hereafter executed, or in any vendor's lien note or notes heretofore or hereafter executed, given for the purchase money of such real estate, shall be
barred after the expiration of four years from the maturity of such indebtedness, and if suit is not brought for recovery of such real estate, or for the foreclosure of the lien to secure such note or notes within four years from the date of the maturity of such indebtedness, or if suit is not brought within such time for the recovery of the land by the original vendor, or his transferee, or for the foreclosure of the lien given to secure such notes, the purchase money therefor shall be conclusively presumed to have been paid in any suit to recover such land or to enforce a lien thereon, and the lien reserved in any such notes and deeds conveying the land shall cease to exist four years after the note or notes have matured, provided the lien reserved in such note or notes may be extended as provided in section 5695 of this chapter and provided, if several obligations are secured by said deed of conveyance, the same may be enforced at any time prior to four years after the note or obligation last maturing has matured and may be enforced as to all notes not then barred by the four years statute of limitations.
"Art. 5695. When the date of maturity of either debt referred to in either of the foregoing articles is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance by the parties to the contract of extension, and filed for record in the county clerk's office in the county in which the land is situated, the lien shall continue and be in force until four years after maturity of the notes as provided in such extension the same as in the original contract, and the lien shall so continue for any succeeding or additional extensions so made and recorded. The date of maturity set forth in the deed of conveyance or deed of trust or mortgage, or the recorded renewal and extension of the same, shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned. Provided that the owners of all notes secured by deeds of trust or other liens and the owners of all vendor's lien notes reserved in deeds of conveyance which were executed prior to July 14th, 1905, and which are more than four years past due at the time this act takes effect, as shown by the original mortgage, deed of trust or conveyance, shall have twelve months after this act takes effect within which they may bring suit to enforce the liens securing them, if same are valid obligations when this act takes effect, and if suit is not brought within such time the right to bring suit to enforce such liens shall be forever barred; and provided, that the owners of...
