Cook v. Stellmon

• Decision Date: 08 January 1927
• Citation: 43 Idaho 433,251 P. 957
• Parties: WILLIAM COOK, Appellant, v. ANDREW STELLMON and MAMIE STELLMON, His Wife, and FARMERS' STATE BANK, a Corporation, Respondents
• Court: Idaho Supreme Court

251 P. 957

43 Idaho 433

WILLIAM COOK, Appellant, v. ANDREW STELLMON and MAMIE STELLMON, His Wife, and FARMERS' STATE BANK, a Corporation, Respondents

Supreme Court of Idaho

January 8, 1927

LIMITATION OF ACTIONS-HUSBAND AS AGENT OF COMMUNITY TOLLING STATUTE-NOTE AND MORTGAGE-STATUTE TOLLED AGAINST NOTE-MORTGAGE LIEN UNIMPAIRED.

1. Husband's written agreement with mortgagee, postponing date of payment of mortgage on community property, together with annual payments of interest thereafter, constituted suffi- cient acknowledgment, under C. S., sec 6631, and removed bar of section 6609 against the debt since, under Rev. Codes, sec. 2686, husband was community agent, and represented community in agreement for postponement.

2. Where statute of limitations is tolled against note secured by real estate mortgage, the mortgage lien thereon stands unimpaired,

APPEAL from the District Court of the Tenth Judicial District, for Lewis County. Hon. Miles S. Johnson, Judge.

Action to foreclose real estate mortgage. Judgment dismissing plaintiff's complaint. Reversed, with instructions.

Judgment of the trial court reversed, with directions.

Fred E Butler and Edward C. Butler, for Appellant.

The extension of the time of payment of the indebtedness is not a renewal or extension of a mortgage contrary to the provisions of C. S., sec. 6356. (Moulton v. Williams, 6 Idaho 424, 55 P. 1019.)

A mortgage upon land in Idaho remains a lien upon the land until discharged by either one of three ways mentioned in C. S., secs. 6366, 6367. (Kelly v. Leachman, 3 Idaho 629, 33 P. 44.)

At the time of the execution of the note and mortgage, September 13, 1909, the husband had the management and control of the community property with absolute powers of disposition other than testamentary, except the homestead or that part of the common property occupied by the husband and wife as a residence. (Sec. 2505, Rev. Stats.)

Under the law as it existed at the time of the execution of the mortgage, in order to avoid the foreclosure of a mortgage executed by husband and wife upon community property, the husband had the absolute power to make any agreement extending time of payment of the note or for any other reason to stop the running of the statute of limitations. (Law v. Spence, 5 Idaho 244-252, 48 P. 282.)

A change in the form of the indebtedness does not affect the security, even though the letters amounted to a contract changing the form of the evidence of the indebtedness. (Lincoln County State Bank v. Martin, 112 Wash. 186, 191 P. 815; Walker v. Farmers Bank of Kendrick, 41 Idaho 279, 238 P. 968; Craig v. Dinwiddie, 50 Cal.App. Dec. 97, 247 P. 516.)

Tannahill & Leeper and G. C. Pennell, for Respondents.

By the exchange of letters, Cook and Andrew Stellmon changed the nature of the obligation secured, thereby attempting to effect a renewal and extension of the mortgage in violation of statutory requirements, and without the joinder by the wife. (C. S., sec. 6356; Wells v. Harter, 56 Cal. 342.)

The husband could not bind the wife by changing the obligation, and thereby impose additional burdens upon community property unless she joined in the conveyance. (C. S., sec. 4666; Hart v. Turner, 39 Idaho 50, 226 P. 282; McKinney v. Merritt, 35 Idaho 600, 208 P. 244; Childs v. Reed, 34 Idaho 450, 202 P. 685; Myers v. Eby, 33 Idaho 266, 193 P. 77, 12 A. L. R. 535; Knudsen v. Lythman, 33 Idaho 794, 200 P. 130; Fargo v. Bennett, 35 Idaho 359, 206 P. 692; Corey v. Matot, 47 Cal.App. 184, 190 P. 378; In re Alfstad's Estate, 27 Wash. 175, 67 P. 593; Bank of Albion v. Burns, 46 N.Y. 170; Wood on Limitations, par. 116B, p. 578; Davis v. Mann, 43 Ill.App. 302; Campbell v. Brown, 86 N.C. 376, 41 Am. Rep. 464.)

BUDGE, J. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BUDGE, J.

On September 13, 1909, respondent Andrew Stellmon and his wife executed their promissory note in the sum of $ 4,700 and delivered the same to appellant, together with a real estate mortgage securing payment of the note. By its terms the note was to mature five years after date, and provided for the payment of interest annually, at the rate of seven per cent. Some months before the date of maturity of the note appellant communicated with Stellmon by letter and advised that the mortgage could be taken up when due or allowed to run longer, as it suited Stellmon, who replied, in substance, that he would leave the matter of payment to appellant, but that if he made payment he would have to remortgage the place in order to get the money. Appellant and Stellmon then agreed by further correspondence that the indebtedness might be kept alive by Stellmon's continuing to pay interest on the obligation, and if appellant desired payment of the principal he would be entitled thereto after the giving of one year's notice and if Stellmon desired to make payment he should give appellant like notice of one year. Stellmon's wife did not sign any of the letters covering the negotiations for the postponement of the date of payment of the original obligation, but regular payments of interest were made to appellant every year from 1910 to 1922, inclusive, by checks drawn by Stellmon made payable to the Farmers State Bank of Nez Perce and by the bank, under Stellmon's direction, transmitted to appellant either by indorsement of the checks or by its cashier's check or bank draft, except in the year 1920 when Stellmon drew a check payable to the order of appellant and requested the bank to forward it as payment of the interest then due, which request was complied with by the bank and the check received and cashed by appellant.

In 1923 appellant was informed that the Stellmons would refuse to pay their indebtedness, and he thereafter brought this action to foreclose the mortgage. The principal defense relied upon by respondents was that the action was barred by the provisions of C. S., sec. 6609, for failure to bring it within five years after the note was due by its terms, and that the agreement for the postponement of the time of payment of the indebtedness did not toll the statute of...