Girard Trust Company v. Paddock

• Decision Date: 24 January 1911
• Docket Number: 16,155
• Citation: 129 N.W. 550,88 Neb. 359
• Parties: GIRARD TRUST COMPANY, APPELLANT, v. IRA J. PADDOCK ET AL., APPELLEES
• Court: Nebraska Supreme Court

129 N.W. 550

88 Neb. 359

GIRARD TRUST COMPANY, APPELLANT, v. IRA J. PADDOCK ET AL., APPELLEES

No. 16,155

Supreme Court of Nebraska

January 24, 1911

APPEAL from the district court for Dawes county: WILLIAM H WESTOVER, JUDGE. Reversed with directions.

REVERSED.

A. W Crites, for appellant.

A. M Morrissey and A. G. Fisher, contra.

OPINION

ROOT, J.

January 1, 1890, Ira J. Paddock, a resident of the state of Iowa, mortgaged the premises in dispute to secure the payment of his debt for $ 350 due January 1, 1895. March 24, 1890, the mortgage and the note secured thereby were assigned to the Girard Life Insurance Annuity & Trust Company, as trustee, to secure the mortgagee's debenture bonds and with authority to collect the debt. March 26, 1896, the mortgagor and the mortgagee agreed in writing to extend the maturity of the debt until January 1, 1899, but this agreement was not recorded. In 1895 Paddock sold the land by a verbal agreement to his brother, who subsequently sold the premises to one Baldwin, and in August, 1896, Baldwin sold the land to the defendant McGannon. Title was transferred directly from Ira J. Paddock to McGannon by a quitclaim deed dated February 24, 1898, and recorded January 21, 1899. This conveyance is made subject to a mortgage not definitely described. No deeds were recorded intermediate the execution of the mortgage and the deed to McGannon. Paddock testifies, in substance, that he signed a deed for the land, but no grantee was named therein. There is no proof that this blank was ever filled. The plaintiff alleges: "That the interest on said bond or note has not been paid since January 1, 1897, and that the principal indebtedness and the interest since January 1, 1897, have not been paid, nor any part thereof, and there is now due and owing to the plaintiff on account of said note and mortgage," etc. During the trial the parties stipulated with respect to the debt that "no amounts have ever been collected and paid except as stated in the petition." The plaintiff's petition was dismissed and a decree entered quieting title in the defendant McGannon.

Considerable argument is presented with respect to the statute of limitations. In Teegarden v. Burton, 62 Neb. 639, 87 N.W. 337, we held that the statute did not bar an action to foreclose a mortgage until ten years after the last payment upon the debt. The stipulation is general, and in no manner intimates that the payments were not made by the owner of the equity of redemption. Ira J. Paddock testifies that, when the land was sold to his brother and subsequently when it was sold to Baldwin, the grantees agreed to pay the mortgage debt. Thereby the grantee became a principal debtor. Stover v. Tompkins, 34 Neb. 465, 51 N.W. 1040. No one contends that Ira J. Paddock made these payments, and upon the entire record we think that a presumption arises that they were made by the primary debtor, who in the ordinary course of business would be expected to pay the interest upon the debt. Shephard v. Calhoun, 72 Ill. 337. This suit was commenced in October, 1906, less than ten years subsequent to January 1, 1897, and we are of opinion that the statute of limitations does not bar the action.

The defendants argue that, since the bill of exceptions does not contain copies of certain Iowa statutes received in evidence it does not present all...