Hopkins v. Clyde

• Decision Date: 06 December 1904
• Docket Number: 8571
• Citation: 72 N.E. 846,71 Ohio St. 141
• Parties: Hopkins v. Clyde, Admr., Et Al.
• Court: Ohio Supreme Court

72 N.E. 846

71 Ohio St. 141

Hopkins v. Clyde, Admr., Et Al.

No. 8571

Supreme Court of Ohio

December 6, 1904

One becoming owner by private or judicial sale - Of realty in trust belonging to heirs at law of mortgagor - May plead statute of limitations, when - Mortgages - Parties - Pleadings.

One who, by either private or judicial sale, has become the owner of the interests in real estate belonging to one or more of the heirs at law of a mortgagor, may plead the statute of limitations in bar of an action to foreclose the mortgage on the real estate so acquired, although each and all of such heirs at law are parties to the action, and neglect, or refuse to interpose the plea.

The action in the court of common pleas was brought by George M Clyde, as administrator of the estate of W. J. Clyde deceased, to foreclose a mortgage on certain real estate in the city of Troy, Miami county, Ohio, executed on the twenty-second day of June, 1885, by George C. Clyde and his wife, to secure the payment to said W. J. Clyde of a promissory note of even date with the mortgage, for the sum of $2,530, due one year from date with eight per cent interest. This mortgage was left for record and was duly recorded in the records of mortgages for said Miami county. The mortgagor, George C. Clyde, died intestate several years after the maturity of the note, and several years before the action to foreclose was commenced, leaving Helen Clyde, his widow, and N.C. Clyde, Sadie Evans, Kate C. Davis and Elizabeth Lee his heirs at law, who were made defendants in said action, and who are also made defendants in error here as they were in the circuit court.

The action in foreclosure was commenced in the court of common pleas on the twentieth day of May, 1902, more than fifteen years after the maturity of the debt secured by the mortgage.

The prayer of the petition is, "that in default of payment of the amount now due and payable under said mortgage, or that may become due and payable before judgment herein, said mortgage may be foreclosed and said premises sold, free from all claims of the defendants and the proceeds applied to the payment of the debt due plaintiff, and for such other relief as is just and proper in the premises."

On July 5, 1902, on his application, W. A. Hopkins, now plaintiff in error, was made a party defendant to the action, with leave to plead by the tenth day of July, which he did. The widow and heirs of the mortgagor, George C. Clyde, so far as disclosed by the record, made no defense. The answer and cross-petition of the plaintiff in error alleges in substance that said mortgagor, George C. Clyde, died intestate and seized of the premises covered by the mortgage, leaving the widow and heirs above named to whom his estate descended, and proceeds as follows to plead the statute of limitations against the mortgage:

"The defendant, The Henry St. Clair Company, on the fourteenth day of February, 1898, recovered a judgment by the consideration of the common pleas court of Miami county, Ohio, against the defendant, Kate C. Davis, in the sum of $304.87 and costs of suit. On the twenty-fifth day of February, 1898, execution was issued upon said judgment and levied upon the defendant, Kate C. Davis' undivided one-fifth part of said real estate in the petition described. After said judgment became a lien on said real estate, the said Kate C. Davis conveyed her said in- terest in said real estate to the defendant, Neva O. Coppock. Thereafter the defendant, The Henry St. Clair Company, on the nineteenth day of October, 1901, commenced an action in the common pleas court of Miami county, Ohio, in the nature of a creditor's bill against the defendants, Kate C. Davis and Neva O. Coppock, to enforce said judgment lien upon said real estate, and marshal liens. Such proceedings were thereafter had in said case that the court ordered said one-fifth part of said real estate appraised, advertised and sold, as upon execution, and the same was duly appraised, advertised, and on the twenty-fourth day of May, 1902, sold by the sheriff of Miami county, Ohio, to this defendant for the sum of $405. Said sale was thereafter confirmed by the court and the sheriff of said county was ordered to convey said real estate to this answering defendant, and said sheriff did convey said real estate to this defendant, and he is now the owner and holder of the fee simple legal title to said undivided one-fifth part of said real estate, inherited by the defendant, Kate C. Davis, from her father, George C. Clyde, plaintiff's mortgagor.

"The said W. A. Hopkins for further answer says that the note described in the petition and secured by said mortgage herein sued upon was due more than fifteen years before the commencement of this action, and that the said note and said mortgage securing the same are both barred by the statutes of limitation.

"This answering defendant says further that said mortgage has not been cancelled of record and casts a cloud upon his title to said real estate.

"Wherefore, the defendant, W. A. Hopkins, prays that he may go hence without day as to the plaintiff's action, set forth in the petition, and that the court on this cross-petition order said mortgage cancelled of record in so far as it affects this defendant's title to said real estate, and quiet this defendant's title in and to said real estate as against said mortgage."

To this answer and cross-petition the administrator, plaintiff below, filed a general demurrer, "for the reason that the same does not constitute a defense to the petition of the said plaintiff."

The court of common pleas sustained the demurrer and dismissed the answer and cross-petition. On error to the circuit court this judgment was affirmed. This case is here on error to reverse both judgments.

Messrs. Gilbert, Shipman & Campbell, attorneys for plaintiff in error.

Mr. Sherman T. McPherson, attorney for defendants in error.

PRICE J.

It is not seriously questioned that the mortgagor, George C. Clyde, if living, could make the plea of the statutory bar, against both the note and the mortgage securing the same, if more than fifteen years had elapsed between the maturity of the debt and the commencing of the action to foreclose the mortgage.

Nor can it be seriously argued, that the widow and heirs at law of the mortgagor, could not successfully interpose the plea in their behalf against the mortgage, because they are in undoubted privity of estate with the mortgagor, which estate vested in them at his decease. The authorities are unanimous in support of the latter proposition, and while the right to plead the statutory bar to the promissory note is a personal privilege to be exercised by its maker or his legal representative, when the action seeks the sale of real estate which has vested in the widow and heirs at law, either by will or by descent, they or either of them may make the plea in protection of their estate from foreclosure and sale.

But it is urged in this case that the plaintiff in error does not stand in such privity of estate with the mortgagor or his heirs at law, as entitles him to make this defense. What are the facts he alleges?

On the fourteenth of February, 1898, more than three years prior to the filing of the action to foreclose, The Henry St. Clair Company recovered a judgment in the court of common pleas of Miami county against Kate C. Davis, one of the heirs of the mortgagor, for $304.87 and costs of suit. On the twenty-fifth of February of same year an execution was issued on this judgment, and it was levied on the undivided one-fifth of the real estate covered...