Goldfrank, Frank & Co. v. Young, Case No. 5151.

• Court: Supreme Court of Texas
• Writing for the Court: STAYTON
• Citation: 64 Tex. 432
• Parties: GOLDFRANK, FRANK & CO. v. WM. H. YOUNG.
• Docket Number: Case No. 5151.
• Decision Date: 23 June 1885

64 Tex. 432

GOLDFRANK, FRANK & CO.
v.
WM. H. YOUNG.

Case No. 5151.

Supreme Court of Texas.

Jun. 23, 1885.

[64 Tex. 433]

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

Waelder & Upson, for appellants, cited: 2 Jones on Mortgages, §§ 1170, 1198, 1723, 1728, 1742, 1743, 1751, 1763; Taylor v. Sonora Mining Co., 17 Cal., 594;Wofford v. Unger, 53 Tex., 641; Calkins v. Calkins, 3 Barb. S. C. Rep., 305; Grayson v. Taylor, 14 Tex., 674; 3 Wait's Act. & Def., 213; 7 Wait's Act. & Def., 301 et seq.; 4 Kent (7th ed.), marginal page, 189; Van Keuren v. Parmelee, 2 N. Y., 527; Harper v. Fairley, 23 N. Y., 444.

Shook & Ditmar, for appellee, cited: Smith v. Fly, 24 Tex., 353;Biddell v. Brizzolara, 56 Cal., 374-383; Wood on Limitations, secs. 79-85; De Cordova v. Galveston, 4 Tex., 482;Blackwell v. Barnett, 52 Tex., 326;Duty v. Graham, 12 Tex., 437;Locke v. Wilson, 9 Heisk. (Tenn.), 784.

STAYTON, ASSOCIATE JUSTICE.

The appellee, on the 27th day of February, 1882, sued out a writ of injunction to restrain the sale of certain real estate described in his petition, under a deed of trust with power of sale, which he had executed to A. M. Cohen, as trustee, to secure a note given by the appellee to Goldfrank, Frank & Co., of date February 12, 1877, payable twelve months after its date, for $6,000, and bearing interest from date, payable semi-annually, at the rate of twelve per cent. per annum.

There was no pretense in the petition that the note had been paid, and the sole ground on which the injunction was sought and granted was, that the note was barred by the statute of limitation, and that therefore the power given by the trust deed had ceased to be operative.

[64 Tex. 434]

The deed of trust gave power to the parties for whose benefit it was executed to substitute another trustee should it become necessary; and the trustee named in the deed having declined to execute the trust, the beneficiaries, in the proper manner, named M. Krakauer such substitute, and he at once advertised the property for sale; same to be made on February 28, 1882.

The semi-annual interest was paid until August 12, 1880.

On 26th July, 1879, $1,000 was paid on the principal of the note, and the same indorsed thereon in the presence of the maker, who on that day obtained by writing a release of a part of the property from the operation of the lien given by the trust deed, and in the instrument by which this was done a lien was expressly retained on the residue of the property. That instrument was accepted by the appellee and he claimed the benefits which it gave him.

The appellee testified as follows: “The debt mentioned in the note and secured by the deed of trust was contracted for money loaned to me by Goldfrank, Frank & Co. I have asked and received indulgence (and time) at various times after the maturity of the debt, and up to a very short time before the filing of the petition in this case. There is no claim of payment or complaint of unfair dealing on the part of Goldfrank, Frank & Co.”

The court below perpetuated the injunction on the sole ground that the debt was barred by the statute of limitations.

That there is no essential difference between a mortgage with power of sale, or a deed of trust made to a third person with power to sell in default of payment of a debt which either is given to secure, and an ordinary mortgage, in reference to the right to foreclose either through a judgment or decree of a court, after the period of limitation has elapsed, if that be pleaded as a defense, is well settled. Duty v. Graham, 12 Tex., 427;Perkins v. Sterne, 23 Tex., 561;Ross v. Mitchell, 28 Tex., 151; Jones on Mortgages, 1769; McLane v. Paschal, 47 Tex., 366; Angell on Limitations, 7.

That the lien given by either, in such cases, cannot be enforced through the judgment or decree of a court, after the debt secured by the lien is barred, is well settled.

It may be considered as the settled law of this state, that in actions for the recovery of debt, and like actions, the statutes of limitation affect the remedy solely. Gautier v. Franklin, 1 Tex., 732;Hays v. Cage, 2 Tex., 506;De Cordova v. City of Galveston, 4 Tex., 480; Jones on Mortgages, 1203.

No court in the Union has gone further to sustain this rule than the supreme court of this state. Bender v. Crawford, 33 Tex., 745;

[64 Tex. 435]

Wood v. Welder, 42 Tex., 409;Grigsby v. Peak, 57 Tex., 147. Whether the rules laid down in the cases last cited, in their full scope, can be maintained on principle or authority need not be examined in this case.

Before the adoption of the Revised Statutes it was held that an adverse possession of property, real or personal, for the period and under the circumstances prescribed by the statute, would give title to the thing possessed and destroy the title of the former owner. Cochrane v. Winburn, 13 Tex., 144;Claiborne v. Tanner, 18 Tex., 78;Thurmond v. Trammell, 28 Tex., 380;Smith v. Montes, 11 Tex., 24;Moody v. Holcomb, 26 Tex., 719;Winburn v. Cochran, 9 Tex., 125;Scott v. Rhea, 5 Tex., 260;Cunningham v. Frandtzen, 26 Tex., 41.

In reference to realty the statute now declares that: “Whenever in any case the action of a person for the recovery of real estate is barred by any of the provisions of this chapter, the person having such peaceable and adverse possession shall be held to have full title, precluding all claims” (R. S., 3196); thus, as to realty, putting the question as to the effect of the statutory bar beyond controversy; and as the same language is used in the statutes now in force, in reference to actions for personal property, as was used in the statutes in force prior to the adoption of the Revised Statutes, we must presume that it was intended they should receive the same construction as to the effect of the statutory bar upon the title of the former owner.

The legislature having declared what shall be the effect of the statutory bar in “actions or suits” relating to the title to real property, in the absence of such declaration, or of a settled construction giving to the bar of the statute a similar effect in other classes of “actions or suits” mentioned in the statute, it is but reasonable to infer that it was not the intention of the legislature to give the same effect to the bar in the other classes of cases.

The statute now in force, in reference to the bar of limitation, evidences clearly the intention of the legislature that the same rule was not intended to apply in cases in which the failure to bring suit or action within the prescribed time is the sole ground on which the defense arises, as will apply in cases in which this, coupled with adverse possession of the thing in controversy, whether realty or personalty, is made the ground on which the...