Ingersoll v. Davis

• Decision Date: 06 November 1905
• Citation: 14 Wyo. 120,82 P. 867
• Parties: INGERSOLL v. DAVIS ET AL
• Court: Wyoming Supreme Court

82 P. 867

14 Wyo. 120

INGERSOLL v. DAVIS ET AL

Supreme Court of Wyoming

November 6, 1905

ERROR to the District Court, Albany County, HON. CHARLES E CARPENTER, Judge.

Action upon a promissory note and to foreclose a mortgage, brought by James M. Ingersoll against Daniel B. Davis, Lottie C Davis, his wife, and Fannie Fisher. The facts are stated in the opinion.

Affirmed.

James M. Fenwick, for plaintiff in error.

An action to foreclose a mortgage is not controlled as to limitation by Section 3454, Revised Statutes, 1899, but such an action may be brought notwithstanding that an action upon the note is barred. (Wild v. Stephens, 1 Wyo. 366; Balch v. Arnold, 9 Wyo. 17.) The evidence discloses the absence of the debtors from the state before the maturity of the note and mortgage, and it not appearing affirmatively that they or either of them returned to the state, the absence is presumed to have continued. The absence from the state of the debtors interrupted the running of the statute not only as to themselves, but as to their grantees as well. (Waterson v. Kirkwood, 17 Kan. 9; Brown v. Rockhold, 49 Iowa 282; Clinton v. Cox, 37 Iowa 570; Banking Assn. v. Bank (Ill.), 41 N.E. 919; Balch v. Arnold, 9 Wyo. 17; 59 P. 434; Hampton v. France, 32 S.W. 950.)

N. E. Corthell, for Fannie Fisher, defendant in error.

The five-year limitation of Section 3454, Revised Statutes, 1899, applies to an action for the foreclosure of a mortgage. (Kerr v. Lydecker, 51 Ohio St. 240; McGoveny v. Gwillim (Colo.), 65 P. 346; Rife v. Lybarger, 49 Ohio St. 422; Anderson v. Baxter, 4 Ore. 107; George v. Butler, 26 Wash. 456; Jennings v. Peay, 51 S. C., 327.)

The exception tolling the statute for absence from the state is intended to apply to personal actions; it operates against the absent party alone and does not affect others. Where mortgaged property is conveyed by the mortgagor, the statute of limitations controlling an action to foreclose runs in favor of the grantee from the time the cause of action accrues; and neither part payment, acknowledgment nor absence from the state, nor any other act or omission of the debtor interrupts the statute as against the grantee. (Wood v. Goodfellow, 43 Cal. 189; Fillippini v. Trobock, 134 Cal. 441; George v. Butler, 26 Wash. 456; Anderson v. Baxter, 4 Ore. 107; Bush v. White, 85 Mo. 339, 361; Arthur v. Screven, 39 S. C., 77; Fowler v. Wood, 78 Hun, 304; Eubanks v. Leveridge, 8 F. C., 810; Cottrell v. Shepherd, 86 Wis. 649; Newbould v. Smith, 33 Ch. Div., 127; Hill v. Hilliard, 103 N. C., 34; Day v. Baldwin, 34 Iowa 380; Cowhick v. Shingle, 5 Wyo. 87; Bergman v. Bly, 66 F. 40.)

No appearance for Daniel B. or Lottie C. Davis.

BEARD, JUSTICE. POTTER, C. J., and VAN ORSDEL, J., concur.

OPINION

BEARD, JUSTICE.

This action was commenced by the plaintiff in error October 5, 1901, in the District Court of Albany County, against the defendants in error, to recover judgment on a note against the defendants, Daniel B. and Lottie C. Davis, and to foreclose a mortgage given to secure the note. There is but one controverted question of fact in the case as presented to this court in the briefs of counsel. The facts not controverted are, that the defendants, Daniel B. Davis and Lottie C. Davis, his wife, on December 30, 1891, executed to John H. Symons their promissory note for $ 250, due twelve months after date, with interest at one and one-half per cent per month, and to secure the payment of said note they at the same time executed a mortgage upon certain real estate situated in Albany County, Wyoming, of which they were then the owners; that Symons assigned and transferred the note and mortgage to plaintiff December 7, 1893; that nothing has ever been paid on the note; that on March 15, 1892, the defendants Davis and wife conveyed the mortgaged premises to Josiah J. Fisher, by warranty deed, subject to the mortgage; that on March 11, 1893, Josiah J. Fisher conveyed, by warranty deed, to Eli Crumrine and on April 18, 1893, Crumrine conveyed, by warranty deed, to the defendant, Fannie Fisher, who still owned the land at the time the action was commenced.

After pleading the note and mortgage, the plaintiff alleges in the third paragraph of the petition, "That the said defendants, Daniel B. Davis and Lottie C. Davis, after the execution and delivery of the said note and mortgage as aforesaid, departed from the State of Wyoming and for more than a period of seven years last passed have been continuously absent from and non-residents of the State of Wyoming." The petition then alleges that the defendant, Fannie Fisher, claims some interest in the premises, and prays judgment against the defendants Davis; that the defendant Fisher be required to set up her claims; that the rights of plaintiff and defendant Fisher be determined and the premises sold to satisfy the mortgage indebtedness. The defendants Davis were served by publication only. The defendant Fisher was personally served with summons, and she alone appeared and answered. In her answer she admits that she has an interest in the premises, sets up her title and denies every allegation in the petition not expressly admitted in her answer, and for a second defense, in the third paragraph of her answer, alleges as follows: "3. And for a second and further defense to the plaintiff's petition this defendant alleges that the cause of action set forth in the said petition accrued to the plaintiff and to his grantor more than five years before the commencement of this action, and this defendant denies the facts alleged in paragraph 3 of the petition." To this paragraph plaintiff filed a general demurrer which was overruled, plaintiff excepted and assigns such ruling as error. Plaintiff filed a reply denying generally the allegations of the answer. The case was tried to the court, and the court found generally for the defendant Fisher, dismissed the action without prejudice, as to defendants Davis, and rendered judgment against plaintiff for costs. A motion for a new trial was filed by plaintiff and denied by the court, exceptions taken, and plaintiff brings error.

Counsel for plaintiff, in his brief, relies upon two propositions for a reversal: First, that an action to foreclose a mortgage does not come within the provisions of Section 3454, Revised Statutes of 1899; and second, that the evidence shows that the mortgagors were absent from the state and that such absence tolled the statute as to the defendant Fisher. The first point was attempted to be raised by demurrer to the third paragraph of the answer; but the demurrer was to the entire paragraph which contained a specific denial of the allegations of the petition in relation to the absence of the mortgagors from the state, and for that reason, if for no other, the demurrer was properly overruled. The point however, was otherwise preserved and must be determined. Under our code of civil procedure, "The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing are abolished, and in their place there shall be hereafter but one form of action, which shall be called a civil action." (Sec. 3443, R. S. 1899.) An action to foreclose a mortgage is, therefore, a "civil action," and is included in that term where it occurs in other portions of the statute. Our statute of limitations provides: Sec. 3453. "Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action accrues." Sec. 3454. "Within five years an action upon a specialty or any agreement, contract or promise in writing. * * *" Sec. 3463. "If when a cause of action accrues against a person he is out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or...