Colonial & United States Mortg. Co., Ltd. v. Flemington
| Decision Date | 01 May 1905 |
| Citation | 103 N.W. 929,14 N.D. 181 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Dickey county; Lauder, J.
Action by the Colonial & United States Mortgage Company, Limited against Alex. D. Flemington and George Schaller. Judgment for defendants, and plaintiff appeals.
Reversed.
Respondents plea sustained as to an undivided one-fourth of the land, and the appellant entitled to the relief demanded to the extent of the remaining three-fourths of the land. Cause remanded.
Newman Spalding & Stambaugh, for appellant.
If mortgagor dies before the cause of action accrues, the statute of limitations will not begin to run against the debt before the appointment of an administrator, as, until that time, there is no one to be sued and the cause of action cannot accrue. Etter v. Finn, 12 Ark. 632; Hobart v. Turnpike Co., 15 Conn. 145; Andrews v R. R. Co., 34 Conn. 57; Conyers v. Kennon, 1 Ga. 379; Sherman v. Western, etc., Co., 24 Iowa 515; Toby v. Allen, 3 Kan. 399; Hull v. Deatley, 7 Bush. (Ky.) 687; Fishwick v. Sewell, 4 Harr. & J. 393; Ruff v. Bull, 7 Harr. & J. 14, 16 Am. Dec. 290; Sewell v. Valentine, 6 Pick. 276; Wood v. Ford, 29 Miss. 57; Polk v. Allen, 19 Mo. 467; Davis v. Garr, 6 N.Y. 124, 55 Am. Dec. 387; Sanford v. Sanford, 62 N.Y. 555; Marsteller v. Marsteller, 93 Pa.St. 350; Pittsburg R. R. Co. v. Hein, 25 O. St. 629; Swan v. Lindsay, 70 Ala. 507; Brenner v. Quick, 88 Ind. 546; City of Fort Wayne v. Hamilton, 132 Ind. 487, 32 N.E. 324, 32 Am. St. Rep. 263. In this state, at least, not until one year after the issuing of letters. Section 5212, Rev. Codes 1899.
No obligation rests on mortgagee to procure appointment of an administrator. Benjamin v. DeGroat, 1 Denio, 151; Davis v. Garr, 6 N.Y. 124, 55 Am. Dec. 387.
No laches can be imputed to the creditor for failure to apply for letters of administration; the statute suspending the operation of the statute of limitations is absolute without regard to length of suspension period. Danglada v. De La Guerra, 10 Cal. 387; Smith v. Hall, 19 Cal. 85; Scoville v. Scoville, 30 How. Pr. 246; Gallup v. Gallup, 11 Metc. (Mass.) 445; Hobart v. Turnpike Co., 15 Conn. 145; Hibernia S. & L. Society v. Herbert, 53 Cal. 373; Casey v. Gibbons, 68 P. 1032; Fishwick v. Sewell, 4 H. & J. 393; Bockwell v. Young, 60 Md. 563; Murray v. East India Co., 5 Barn. & Ald. 204.
The statute of limitations cannot be pleaded by a subsequent grantee subject to the mortgage until both the debt and mortgage are barred. Rev. Codes, section 4694; Waterson v. Kirkwood, 17 Kan. 9; Schmucker v. Siebert, 18 Kan. 104, 26 Am. Rep. 765; Cross v. Allen, 141 U.S. 528, 35 L.Ed. 843, 12 S.Ct. 67; Ewell v. Daggs, 108 U.S. 143, 27 L.Ed. 682; Eborn v. Cannon, 32 Tex. 244; McKean v. James, 87 Tex. 194; Mahon v. Cooley, 36 Iowa 479; Jones on Mortgages, section 1204; Coe v. Finlayson, 26 So. 704; Willis v. Farley, 24 Cal. 491; N.Y. Life Ins. Co. v. Covert, 6 Abb. N. S. 154; Murdock v. Waterman, 145 N.Y. 55, 39 N.E. 829, 27 L. R. A. 408; Herndt v. Porterfield, 9 N.W. 322.
The premises descended charged with the mortgage debt, and became the primary fund for its payment, which could not, to the amount that could be made out of the land, be paid from the assets of the estate. Comp. Laws, section 4367; Jummel v. Jummel, 7 Paige, 591; Halsey v. Reed, 9 Paige, 446; Johnson v. Corbett, 11 Paige, 265.
Where one purchases the equity of redemption by quitclaim deed, for a nominal consideration and without special contract, the amount paid is presumed to be the purchase price of the property less the mortgage, which the purchaser must discharge. Jones on Mortgages, section 763; Ins. & Trust Co. v. Covert, 6 Abb. Pr. (N. S.) 154 (Ct. of App.).
Where the purchaser takes the premises subject to a mortgage, the land continues in his hands a primary fund for the payment of the debt, and, to the extent of the value of the land, he becomes the principal debtor. Johnson v. Zink, 51 N.Y. 333; Sands v. Church, 6 N.Y. 347; Hartley v. Harrison, 24 N.Y. 170; Freeman v. Auld, 44 N.Y. 50; Insurance Co. v. Nelson, 78 N.Y. 137; Bennett v. Bates, 94 N.Y. 354; Murray v. Marshall, 94 N.Y. 611; Colgrove v. Tallman, 67 N.Y. 95, 23 Am. Rep. 90; Horton v. Davis, 26 N.Y. 495; Fuller v. Hunt, 48 Iowa 163; Tice v. Annin, 2 Johns. Ch. 125; Palmer v. Butler, 36 Iowa 576; Sanger v. Nightingale, 122 U.S. 176, 30 L.Ed. 1105.
The land being in the hands of the defendant, Flemington, the primary fund for the payment of the debt secured by the mortgage, and he, having purchased subject to the mortgage, cannot plead the statute of limitations. Hyer v. Pruyn, 7 Paige Ch. 465, 34 Am. Dec. 355; Hughes v. Edwards, 9 Wheat. 489, 22 U.S. 489, 6 L.Ed. 142; Waterson v. Kirkwood, 17 Kan. 9; Schmucker v. Siebert, 18 Kan. 104, 26 Am. Rep. 765; Life Ins. & Trust Co. v. Covert, 6 Abb. Pr. N. S. 154; Murdock v. Waterman, 145 N.Y. 55, 39 N.E. 829, 27 L. R. 9. 418.
Charles M. Stevens and E. E. Cassels, for respondent.
Where the mortgagor died before the cause of action accrued, the running of the statute is not suspended because there is no one to be sued on the claim against the decedent. 19 Am. & Eng. Enc. Law (2d Ed.) 220. The statute of limitations began to run from the time the appellant might have perfected his right to sue, or at least within a limited time thereafter. 19 Am. & Eng. Enc. Law (2d Ed.) 103; Bauserman v. Blunt, 147 U.S. 647, 13 S.Ct. 466; Amy v. City of Watertown, 130 U.S. 320, 9 L.Ed. 537; Wright v. Paine, 62 Ala. 340, 34 Am. Rep. 24; Massie v. Byrd, 87 Ala. 72, 6 So. 145; Newsom v. Board of Com'rs, 103 Ind. 526, 3 N.E. 163; Nelson v. Board of Com'rs of Posey County, 105 Ind. 287, 4 N.E. 703; Prescott v. Gonser, 34 Iowa 175; Lower v. Miller, 66 Iowa 408, 23 N.W. 897; Hintrager v. Traut, 69 Iowa 746, 27 N.W. 807; Great Wes. Tel. Co. v. Purdy, 83 Iowa 430, 50 N.W. 45; First National Bank v. Greene, 64 Iowa 445, 17 N.W. 86; Squire v. Parks, 56 Iowa 407, 9 N.W. 324; Hintragen v. Hennessey, 46 Iowa 600; Ball v. Keokuk & N.W. Ry. Co., 62 Iowa 751, 16 N.W. 592; Bauserman v. Charlott, 46 Kan. 480, 29 P. 1051; Fox v. First Nat. Bank of Atchison, 9 Kan.App. 18. 57 P. 241; Cottrell v. Manlove, 58 Kan. 405, 49 P. 519; Travelers Insurance Co. v. Stucki, 4 Kan.App. 424, 46 P. 42; Rork v. Board of County Com's of Douglas County, 46 Kan. 175, 26 P. 391; Atchison, T. & S. F. R. Co. v. Burlingame Tp., 36 Kan. 622, 14 P. 271; Palmer v. Palmer, 36 Mich. 487, 24 Am. Rep. 605; Smith v. Smith's Estate, 91 Mich. 7, 51 N.W. 694; Litchfield v. McDonald, 35 Minn. 167, 28 N.W. 191; State v. Norton, 59 Minn. 424, 61 N.W. 458.
Failure to proceed diligently to secure the appointment of an administrator renders the holder of the mortgage guilty of laches, and his right to foreclose is barred, the statute of limitations having run. 10 Am. & Eng. Enc. Law (2d Ed.) 219, 220 221; Bauserman v. Charlott, 46 Kan. 380, 26 P. 1051; Bauserman v. Blunt, 147 U.S. 647, 13 S.Ct. 466; Culp v. Culp, 51 Kan. 341, 32 P. 1118, 21 L. R. A. 550.
The successor interest of the heirs of the decedent mortgagor may plead the statute of limitations against the foreclosure of the mortgage. 13 Am. & Eng. Enc. Law (2d Ed.) 798; Emory v. Keighan, 94 Ill. 543.
On November 23, 1883, William R. Carey made and delivered to the plaintiff a mortgage of a quarter section of land owned by him in Dickey county, to secure the payment of his promissory note to the plaintiff, of even date, for $ 353, due November 1, 1888, bearing interest at the rate of 6 1/2 per cent per annum, and to secure five coupon notes for the annual interest on the principal note. The coupon notes bear interest at the rate of 12 per cent per annum after maturity. The mortgagor died intestate in September, 1888, seized of the mortgaged land, and left surviving him, as sole heirs, four daughters, Laura Franke, Louisa Atherton, Sophronia D. Schafer and Alice J. Rose. Mrs. Rose is now, and has been since her father's death, a resident of this state, but the other three daughters have at all times resided in the state of Illinois. Letters of administration have never been applied for or issued on the estate of the deceased mortgagor. In June, 1902, the four heirs joined in a deed of the mortgaged land to the defendant and respondent, Alexander Flemington, and said deed was recorded August 14, 1902. On March 28, 1902, the plaintiff commenced this action against Flemington and one Schaller to foreclose said mortgage. Schaller made no answer, and it appears that he claims no right to the land. The only defense was the statute of limitations, and that defense was sustained by the trial court. The plaintiff has appealed from the judgment dismissing the action, and demands a retrial of all the issues under section 5630, Rev. Codes 1899.
Many of the questions arising in this case have been disposed of by the opinion just handed down in Colonial & United States Mortgage Co. v. Northwest Thresher Co., 14 N.D. 147, 103 N.W. 915. We there held that an action to foreclose a mortgage of real property was not one in rem, but was in personam against those interested in the mortgaged property adversely to the mortgage, and hence, under section 5210, Rev. Codes 1899, the absence from the state of the person against whom the cause of action accrued tolled the statute as to him during his absence. We also held that the right to foreclose the mortgage might be barred, even though the debt existed, and the remedies for the collection of the debt from those personally liable therefore were not barred.
In this case, as in the Thresher Co. case, the appellant contends that the...
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