Ed. Fitzgerald v. Flanagan
| Decision Date | 10 April 1912 |
| Citation | 135 N.W. 738,155 Iowa 217 |
| Parties | ED. FITZGERALD, Appellee, v. PETER FLANAGAN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Allamakee District Court.--HON. L. E. FELLOWS, Judge.
ACTION in equity to remove a cloud from plaintiff's title to land occasioned by the record of a mortgage given thereon by a prior owner, which mortgage is alleged to be barred by the statute of limitations. Decree as prayed, and defendant appeals.--Reversed and remanded.
Reversed and remanded.
Wm. S Hart, for appellant.
D. J Murphy, for appellee.
OPINION
At some time prior to the year 1874, Timothy Fitzgerald became the owner of the land in question. He had two sons, Ed and John. In the year named Ed married, built a house upon the land, and lived there under an alleged agreement and understanding with his father that he would convey the farm to the two sons. Ed has lived on the land ever since. On March 8, 1880, Timothy Fitzgerald made the mortgage now in controversy to Peter Flanagan. In the year 1884 Timothy conveyed the land by warranty deed to his sons Ed and John, and later John conveyed his interests to Ed, who is the plaintiff here. The deed from Timothy to his sons recites a consideration of $ 3,000, and the warranty clause therein covenants that the grantor "is well seised of said premises of good, sure, perfect, absolute, and indefeasible estate in the law in fee simple, and that the same are free from all incumbrances whatever except a certain mortgage bearing date the day of , 18..." It contains no assumption by the grantees of any incumbrances or any undertaking by them to pay a mortgage indebtedness. The mortgage in suit was, as we have already noted, executed March 8, 1880, and purports to be security for the payment of one promissory note of Timothy Fitzgerald for $ 288 due March 8, 1883, with interest at 10 percent. The mortgagor has been dead many years. Peter Flanagan, the mortgagee, survives, but far advanced in years, and his business has been attended to principally by his daughter, who lives with him.
This action was instituted August 25, 1904, to obtain a decree canceling the mortgage of record as being barred by the statute of limitations and unenforceable against the plaintiff. It is also alleged that the mortgage debt has been paid. In answer defendant denies that the mortgage debt is barred, alleges that it has been revived from time to time by new promises and new acknowledgments of indebtedness, and by way of cross-bill he asked that the lien may be enforced for the payment of said debt. To avoid the plea of statute of limitations to his cross-bill the defendant alleges that, after the conveyance by Timothy Fitzgerald to his sons as aforesaid, the present plaintiff wrote and sent to the defendant, Peter Flanagan, a letter in which he referred to the said mortgage debt in words as follows: It is further alleged that at a later date said plaintiff wrote and sent another letter to said defendant, in which, again referring to the same indebtedness, he said: It is further alleged that plaintiff at various times wrote other letters to defendant on the same subject, acknowledging the debt and promising to pay the same, but that said writings are now lost and can not be produced. Issue was taken by plaintiff upon the cross-bill.
From this statement it will be seen that the note which the mortgage was given to secure was due March 8, 1883, and that it was barred by the statute of limitations ten years after that date, to wit, March 8, 1893. This action was commenced August 25, 1904, and action on either note or mortgage was barred at that time, unless, as defendant and appellant claims, the obligation was renewed by acknowledgment or a new promise to pay or the plaintiff for a good consideration promised to pay the debt and thus continued it in force. An action either on the note or mortgage must, under the laws of this state, be brought within ten years from the time the cause of action accrued. It is a general rule that, if there be no debt, there is no mortgage, and consequently, if action for the debt be barred, an action to foreclose the mortgage is also barred. This is the general rule as to limitation of actions under section 3447, par. 7, of the Code. Smith v. Foster, 44 Iowa 442; Clinton Co. v. Cox, 37 Iowa 570; Brown v. Rockhold, 49 Iowa 282; Gower v. Winchester, 33 Iowa 303; Jenks v. Shaw, 99 Iowa 604, 68 N.W. 900, and cases cited. Aside from statutes such as prevail in this state or a rule of law such as is announced by our decisions, to the effect that a mortgage does not create an estate, but is simply a lien incident to the debt, the mortgage security is not extinguished, although the debt be barred. See the following cases: Sturges v. Crowninshield, 4 Wheat. 122 (4 L.Ed. 529); Inge v. Boardman, 2 Ala. 331; Belknap v. Gleason, 11 Conn. 160 (27 Am. Dec. 721); Birnie v. Main, 29 Ark. 591; Browne v. Browne, 17 Fla. 607 (35 Am. Rep. 96); Crawford v. Hazelrigg, 117 Ind. 63 (18 N.E. 603, 2 L. R. A. 139); Kellar v. Sinton's Ex'r, 14 B. Mon. 307; Duke v. Story, 116 Ga. 388 (42 S.E. 722); Crooker v. Holmes, 65 Me. 195 (20 Am. Rep. 687); Demuth v. Old Town Bank, 85 Md. 315 (37 A. 266, 60 Am. St. Rep. 322); Norton v. Palmer, 142 Mass. 433 (8 N.E. 346); Webber v. Ryan, 54 Mich. 70 (19 N.W. 751); Slingerland v. Sherer, 46 Minn. 422 (49 N.W. 237); Cheney v. Woodruff, 20 Neb. 124 (29 N.W. 275); Read v. Edwards, 2 Nev. 262; Demerritt v. Batchelder, 28 N.H. 533; Hulbert v. Clark, 128 N.Y. 295 (28 N.E. 638, 14 L. R. A. 59); Myer v. Beal, 5 Ore. 130; Ballou v. Taylor, 14 R.I. 277; Dearman v. Trimmier, 26 S.C. 506 (2 S.E. 501); Irvine v. Shrum, 97 Tenn. 259 (36 S.W. 1089); Fievel v. Zuber, 67 Tex. 275 (3 S.W. 273); Criss v. Criss, 28 W.Va. 388; Cerney v. Pawlot, 66 Wis. 262 (28 N.W. 183); Ball v. Wyeth, 90 Mass. 275, 8 Allen 275; Damon v. Deeves, 57 Mich. 247 (23 N.W. 798); Northrop v. Chase, 76 Conn. 146 (56 A. 518); Satterlund v. Beal, 12 N.D. 122 (95 N.W. 518); Alexander v. Ransom, 16 S.D. 302 at 308 (92 N.W. 418); Richmond v. Aiken, 25 Vt. 324; Booker v. Armstrong, 93 Mo. 49 (4 S.W. 727); Long v. Long, 141 Mo. 352 (44 S.W. 341); Bank v. Simeral, 61 Neb. 741 (86 N.W. 470); Kerr v. Lydecker, 51 Ohio St. 240 (37 N.E. 267, 23 L. R. A. 842); Colton v. Depew, 60 N.J.Eq. 454 (46 A. 728, 83 Am. St. Rep. 650); Ellis v. Fairbanks, 38 Fla. 257 (21 So. 107); Conway v. Caswell, 121 Ga. 254 (48 S.E. 956, 2 Ann. Cas. 269); Capehart v. Dettrick, 91 N.C. 344; Casey v. Gibbons, 136 Cal. 368 (68 P. 1032); In re Hartranft's Estate, 153 Pa. 530 (26 A. 104, 34 Am. St. Rep. 717); United States v. Trust Co., 213 Pa. 411 (62 A. 1062); Camden v. Alkire, 24 W.Va. 674; Foot v. Burr, 41 Colo. 192 (92 P. 236, 13 L. R. A. (N. S.) 1210). But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Minnesota, Kansas, Mississippi (by recent statute), Missouri (by recent statute), Nevada, Texas, and in Wyoming, the mortgage, being considered a mere incident to the debt, is, as a general rule, extinguished when the debt for which it is given is barred by the statute of limitations. See Lord v. Morris, 18 Cal. 482; Allen v. Allen, 95 Cal. 184 (30 P. 213, 16 L. R. A. 646); Clift v. Williams, 105 Ky. 559 (49 S.W. 328, 51 S.W. 821); Carson v. Cochran, 52 Minn. 67 (53 N.W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N.W. 705); Hill v. Gregory, 64 Ark. 317 (42 S.W. 408); Law v. Spence, 5 Idaho 244 (48 P. 282); Harding v. Durand, 138 Ill. 515 (28 N.E. 948); Hubbard v. Missouri Ins. Co., 25 Kan. 172; Culp v. Culp, 51 Kan. 341 (32 P. 1118, 21 L. R. A. 550); Huntington v. Bobbitt, 46 Miss. 528; Balch v. Arnold, 9 Wyo. 17 (59 P. 434).
In some of these states the rule does not apply if the mortgage itself contains a covenant to pay the debt; in others it applies only as between the holder of the mortgage and the original mortgagor; and in still others exceptions have been introduced which will now be noticed. Thus in California it has been held that an action to foreclose a mortgage is not barred by statute, although the debt which it was made to secure could not be enforced against the mortgagor. Union Co. v. Murphy Co., 22 Cal. 620. And in the same state it was held that, when a mortgagor sells the property after making the mortgage, that instrument, as contradistinguished from the debt, is a contract in writing and not barred, although no suit could be brought against the mortgagor. Wood v. Goodfellow, 43 Cal. 185. See, also, Grant v. Burr, 54 Cal. 298. In a Kansas case the debtor conveyed the mortgaged land before the statute had run against the debt, and then left the state. It was held that the statute did not run against the mortgagee in favor of the grantee. Waterson v. Kirkwood, 17 Kan. 9. See, also, Richey v. Sinclair, 167 Ill. 184 (47 N.E. 364). In Texas it has been held that a sale under a deed of trust may be executed, although the right of action on the debt secured thereby is barred. Fievel v. Zuber, 67 Tex. 275 (3 S.W. 273), overruling Blackwell v. Barnett, 52 Tex. 326. Again, in California, it has been held that, although the lien of a mortgage is...
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