Hulbert v. Clark

CourtNew York Court of Appeals
Writing for the CourtEARL
Citation128 N.Y. 295,28 N.E. 638
PartiesHULBERT et al. v. CLARK et al.
Decision Date06 October 1891

128 N.Y. 295
28 N.E. 638

HULBERT et al.
v.
CLARK et al.

Court of Appeals of New York.

Oct. 6, 1891.


Appeal from supreme court, general term, fifth department.

Action to foreclose a mortgage, brought by Lydia Hulbert and others, administrators of Reuben D. Hulbert, deceased, against William B. Clark and Charlotte M. Clark. Defendants appealed to the general term from a judgment for plaintiffs entered upon a report of a referee, and, the judgment being affirmed, appealed to this court. Affirmed.


[128 N.Y. 296]J. N. Hammond, for appellants.

128 N.Y. 297]F. L. Manning, for respondents.

STATEMENT BY THE COURT. This action was commenced in July, 1887, to foreclose a mortgage executed and delivered by the defendants to Reuben D. Hulbert, the plaintiff's intestate, on the 8th day of March, 1867. The mortgage, as stated therein, was given to secure the payment of eight promissory notes, of $500 each, held by Hulbert, all bearing the same date as the mortgage, and maturing at different times, within nine months from their date. It was provided that the mortgage should become void if the notes, principal and interest, should be paid at maturity; but that in case of default in the payment of the notes, or any part thereof, it should be lawful for the mortgagee to sell the mortgaged premises in the manner prescribed by law, and out of the moneys received upon such sale to retain the amount then due and unpaid upon such notes, and to pay the balance, if any, to the mortgagor William B. Clark. There was no covenant to pay the notes or the mortgage. The answer alleged payment of the notes, a set-off, and the six-years statute of limitations. The action was referred, and tried before the referee. He found that two of the notes had not been paid, and that there was due thereon, over and above the set-offs allowed by him, the sum of $1,310.09; and he decided that the mortgage was a subsisting security for that sum, and ordered judgment of foreclosure. The judgment entered upon the report having been affirmed at the general term, the defendants appealed to this court.

EARL, J.

The sole question for our determination is whether the mortgage continued to be a subsisting lien, and could be foreclosed after an action at law upon the notes was barred by the statute of limitations. This is an interesting question, which has given rise to considerable discussion in the courts of this country and England. We do not, however, deem it difficult of solution. The statute of limitations does not, after the prescribed period, destroy, discharge, or pay the debt, but it simply bars a remedy thereon. The debt and the obligation to pay the same remain, and the arbitrary bar of the statute alone stands in the way of the creditor seeking to compel payment. The legislature could repeal the statute of limitations, and then the payment[128 N.Y. 298]of a debt, upon which the right of action was barred at the time of the repeal, could be enforced by action, and the constitutional rights of the debtor are not invaded by such legislation. It was so held in Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209. It was held in Johnson v. Railroad Co., 54 N. Y. 416, that the statute of limitations acts only upon the remedy; that it does not impair the obligation of a contract, or pay a debt, or produce a presumption of payment, but that it is merely a statutory bar to a recovery; and so it was held in Quantock v. England, 5 Burrows, 2628, and so it has ever since been held in the English courts. These notes were therefore not paid, and so the referee found. The condition of the mortgage has therefore not been complied with. The notes being valid in their inception, the only answer to the foreclosure of the mortgage is payment. The mortgage was given to secure payment of the notes, and until they are paid the mortgage is a subsisting security, and can be foreclosed. The mortgage, being under seal, can be foreclosed by action at any time within 20 years. Code, § 381. It is only an action upon the notes that is barred after six years. Id. § 382.

It is a general rule, recognized in this country and in England, that when the security for a debt is a lien on property, personal or real, the lien is not impaired because the remedy at law for the recovery of the debt is barred. The subject has several times been under consideration in the courts of this state. In Jackson v. Sackett, 7 Wend. 94, ejectment was brought on a mortgage executed as collateral security for the payment of a sum of money secured to be paid by a note. The note had been past due more than 20 years when the action was commenced. Upon the trial it was the contention of defendant's counsel that...

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55 practice notes
  • US v. Freidus, No. 90 Civ. 4813 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 15, 1991
    ...414 N.Y.S.2d at 406 (citing Union Bank of Louisiana v. Stafford, 53 U.S. (12 How.) 327, 340-41, 13 L.Ed. 1008 (1851); Hulbert v. Clark, 128 N.Y. 295, 28 N.E. 638 (1891)). Upon reviewing this history of the distinction between mortgage and contract actions, and the language and history of Se......
  • Steingut v. Guaranty Trust Co. of New York
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 15, 1944
    ...York, the law is not quite so inflexible and an area of permissive action in this field is probably still open. Hulbert v. Clark, 1891, 128 N.Y. 295, 28 N.E. 638, 14 L.R.A. 59; Dictum, contra, Germania Savings Bank v. Village of Suspension Bridge, 1899, 159 N.Y. 362, 368, 54 N.E. 33; House ......
  • Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., Inc., No. 23160.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 12, 1971
    ...143, 168 N.W. 1024, 1025, 2 A.L.R. 804 (1918); Hyde v. Hartford Fire Ins. Co., 70 Neb. 503, 97 N.W. 629, 631 (1903); Hulbert v. Clark, 128 N.Y. 295, 28 N.E. 638, 639-640 (1891); Batten v. Jurist, 306 Pa. 64, 158 A. 557, 559, 81 A.L.R. 625 (1932); Connecticut Mut. Life Ins. Co. v. Dunscomb, ......
  • Guaranty Trust Co of New York v. York, No. 264
    • United States
    • United States Supreme Court
    • June 18, 1945
    ...Henrietta Mills v. Rutherford Co., supra 281 U.S. at pages 127, 128, 50 S.Ct. at page 272, 74 L.Ed. 737. 5 See, e.g., Hulbert v. Clark, 128 N.Y. 295, 28 N.E. 638, 14 L.R.A. 59; House v. Carr, 185 N.Y. 453, 78 N.E. 171, 6 L.R.A.,N.S., 510, 113 Am.St.Rep. 936, 7 Ann.Cas. 185; Lightfoot v. Dav......
  • Request a trial to view additional results
55 cases
  • US v. Freidus, No. 90 Civ. 4813 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 15, 1991
    ...414 N.Y.S.2d at 406 (citing Union Bank of Louisiana v. Stafford, 53 U.S. (12 How.) 327, 340-41, 13 L.Ed. 1008 (1851); Hulbert v. Clark, 128 N.Y. 295, 28 N.E. 638 (1891)). Upon reviewing this history of the distinction between mortgage and contract actions, and the language and history of Se......
  • Steingut v. Guaranty Trust Co. of New York
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 15, 1944
    ...York, the law is not quite so inflexible and an area of permissive action in this field is probably still open. Hulbert v. Clark, 1891, 128 N.Y. 295, 28 N.E. 638, 14 L.R.A. 59; Dictum, contra, Germania Savings Bank v. Village of Suspension Bridge, 1899, 159 N.Y. 362, 368, 54 N.E. 33; House ......
  • Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., Inc., No. 23160.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 12, 1971
    ...143, 168 N.W. 1024, 1025, 2 A.L.R. 804 (1918); Hyde v. Hartford Fire Ins. Co., 70 Neb. 503, 97 N.W. 629, 631 (1903); Hulbert v. Clark, 128 N.Y. 295, 28 N.E. 638, 639-640 (1891); Batten v. Jurist, 306 Pa. 64, 158 A. 557, 559, 81 A.L.R. 625 (1932); Connecticut Mut. Life Ins. Co. v. Dunscomb, ......
  • Guaranty Trust Co of New York v. York, No. 264
    • United States
    • United States Supreme Court
    • June 18, 1945
    ...Henrietta Mills v. Rutherford Co., supra 281 U.S. at pages 127, 128, 50 S.Ct. at page 272, 74 L.Ed. 737. 5 See, e.g., Hulbert v. Clark, 128 N.Y. 295, 28 N.E. 638, 14 L.R.A. 59; House v. Carr, 185 N.Y. 453, 78 N.E. 171, 6 L.R.A.,N.S., 510, 113 Am.St.Rep. 936, 7 Ann.Cas. 185; Lightfoot v. Dav......
  • Request a trial to view additional results

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