Fitzgerald v. Flannagan

• Decision Date: 11 April 1910
• Citation: 125 N.W. 995
• Parties: FITZGERALD v. FLANNAGAN.
• Court: Iowa Supreme Court

125 N.W. 995

FITZGERALD

v.FLANNAGAN.

Supreme Court of Iowa.

April 11, 1910.

Appeal from District Court, Allamakee County; 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. Affirmed.William S. Hart, for appellant.

D. J. Murphy, for appellee.

WEAVER, J.

At some time prior to the year of 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 Flannagan. 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 herein. The deed from Timothy to his sons recites a consideration of $3,000, and the warranty clause therein covenantsthat 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 per cent. The mortgagor has been dead many years. Peter Flannagan, 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 the 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 Flannagan a letter in which he referred to the said mortgage debt in words as follows:

“Harpers Ferry, Dec. 21.

Mr. Flannagen:

Dear Sir: We have gott youre money for you. It will be ready for you the fifteent of

February

Without Fale.

the man that We gott the money from Will have the money ready from the first to the 15 of February

From youre Friends

J. & Ed Fitzgerald.”

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:

“Harpers Ferry, Aug. 3--95.

Mr. Flannagan,

Friend Peter.

I received Notice from Webster a few days ago demanding that money amedatly. I will be able to pay it by the 15 of November and not before So dont make no costs that is not necessary,

+-----------------------------+
                ¦Yours truly,¦Ed Fitzgerald.” ¦
                +-----------------------------+
                

It is further alleged that plaintiff at various times wrote other letters to plaintiff on the same subject acknowledging the debt and promising to pay the same, but that said writings are now lost and cannot be produced. Issue was taken by plaintiff upon the cross-bill and the testimony taken in the form of depositions.

The principal, and, as we think, the decisive, question is whether the defendant has made a sufficient showing of a revivor of the mortgage debt to prevent the operation of the bar of the statute. The rule as to the operation of the statute of limitations in this state differs so materially from those obtaining under like circumstances in many other states that precedents from such jurisdiction are to a great extent inapplicable and often misleading. Influenced by the ancient distinction between sealed and unsealed instruments, which does not prevail here, and by that other rule, which is not the law of this state, that a mortgage invests the mortgagee with an estate in the land and not a mere chattel interest, many courts have held that a mortgage lien may continue and be enforced after an action at law upon the debt is barred by the statute. Thayer v. Mann, 19 Pick. (Mass.) 535;Heyer v. Pruyn, 7 Paige (N. Y.) 465, 34 Am. Dec. 355. In this state it is well settled that a mortgage conveys no estate or interest in the land. Its effect is to create a mere lien. It is incident to the debt it secures, and when the debt ceases to exist, or by operation of the statute ceases to be enforceable at law, the mortgage ceases to be enforceable in equity. There may perhaps be circumstances, where interests of third parties have intervened, in which right of action against the mortgage debtor may be revived after by the statute without working a revivor of the mortgage, but we can conceive no condition whereby, under the law as settled by our statutes and precedents, a right to foreclose and enforce the mortgage can exist after the lapse of the statutory period without a revivor of the debt which it secures. Gower v. Winchester, 33 Iowa, 303; Day v. Baldwin, 34 Iowa, 383; Green v. Turner, 38 Iowa, 119; Crawford v. Taylor, 42 Iowa, 263; Grether v. Clark, 75 Iowa, 383, 39 N. W. 655, 9 Am. St. Rep. 491;Smith v. Foster, 44 Iowa, 442;Adams v. Holden, 111 Iowa, 54, 82 N. W. 468.

Therefore, unless we are to venture upon a marked...