International Mortg. Bank v. Barghoorn

• Decision Date: 02 August 1926
• Citation: 248 P. 868,43 Idaho 24
• Parties: INTERNATIONAL MORTGAGE BANK, a Corporation, Respondent, v. S. BARGHOORN, E. N. JOHNSON and POTLATCH LUMBER COMPANY, a Corporation, Defendants, and FRANC BARGHOORN, Defendant and Appellant
• Court: Idaho Supreme Court

248 P. 868

43 Idaho 24

INTERNATIONAL MORTGAGE BANK, a Corporation, Respondent, v. S. BARGHOORN, E. N. JOHNSON and POTLATCH LUMBER COMPANY, a Corporation, Defendants, and FRANC BARGHOORN, Defendant and Appellant

Supreme Court of Idaho

August 2, 1926

LIMITATION OF ACTIONS-MORTGAGE FORECLOSURE-ABSENCE OF DEBTOR FROM STATE-STATUTE OF LIMITATIONS BARRED-COURTS-STIPULATIONS.

1. Statute of limitations in action to foreclose cannot avail grantee of mortgagor who, without becoming obligated to pay debt, acquired mortgagor's interest before right to foreclose was barred, where debtor has by continued absence from state prevented running of statute with respect to debt.

2. Prior decision against availability, under certain circumstances of limitations in mortgage foreclosure being a rule of property, will not be disturbed.

3. Defendant in mortgage foreclosure, by stipulating that mortgagee duly assigned and transferred the note and mortgage to plaintiff, and that plaintiff has complied with Idaho laws with reference to foreign corporations doing business in the state, admits plaintiff is qualified to maintain the action.

APPEAL from the district court of the second judicial district, for Latah County.

Action to foreclose mortgage. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs.

James H. Forney, for Appellant.

The statute of limitation began to run in favor of the defendant at the time the cause of action accrued against him. ( Rawleigh Medical Co. v. Atwater, 33 Idaho 399, 195 P. 545; Boise Payette Lumber Co. v. Weaver, 40 Idaho 516, 234 P. 150.)

The absence of the mortgagor from the state after he has parted with the title to the mortgaged property does not prevent the statute of limitations from running in favor of his grantee. (Lord v. Morris, 18 Cal. 482; Denny v Palmer, 26 Wash. 469, 90 Am. St. 766, 67 P. 268; Bush v. White, 85 Mo. 339; Brandenstein v. Johnson 140 Cal. 29, 73 P. 744.)

Action to foreclose a mortgage on real property is a remedy distinct from the remedy by which the creditor may enforce the personal obligation for the debt secured by the mortgage, and may become barred by the statute of limitations even though the debt is not outlawed. (Hill v. Hilliard, 103 N.C. 34, 9 S.E. 639; Stancill v. Spain, 133 N.C. 76 45 S.E. 466; Hopkins v. Clyde, 71 Ohio 141, 104 Am. St. 737, 72 N.E. 846; Authur v. Screven, 39 S.C. 77, 17 S.E. 640; DeVoe v. Runkle, 33 Wash. 604, 74 P. 836; Colonial and U. S. Mtg. Co. v. Northwest Thresher Co., 14 N.D. 147, 116 Am. St. 642, 103 N.W. 915, 70 L. R. A. 814.)

Frank L. Moore and Latham D. Moore for Respondent.

There can be but one action for the recovery of any debt secured by a mortgage upon real estate or personal property and such action is exclusive. (C. S., sec. 6949; Lewis v. Sutton, 21 Idaho 541, 122 P. 911; Dighton v. First Exchange Nat. Bank, 33 Idaho 273, 192 P. 832; Eaton v. McCarty, 34 Idaho 747, 202 P. 603; Payette-Boise W. U. Assn. v. Fairchild, 35 Idaho 97, 205 P. 258.)

An action is not barred by limitation when the defendant has never been a resident of the state and it is not shown to have been barred under the laws of any other state of which he was a resident. (West v. Theis, 15 Idaho 167, 128 Am. St. 58, 96 P. 932, 17 L. R. A., N. S., 472; Ross v. Rees, 55 Iowa 296, 7 N.W. 611; Brown v. Nourse, 55 Me. 230, 92 Am. Dec. 583; Hoffman v. Churchill, 74 Mich. 235, 41 N.W. 907; Way v. Colyer, 54 Minn. 14, 55 N.W. 744; Harrison v. Union Nat. Bank, 12 Neb. 499, 11 N.W. 752; Minneapolis Harvester Works v. Smith, 36 Neb. 616, 54 N.W. 973; Paine v. Drew, 44 N.H. 306.)

A mortgage is a mere incident of a debt, and suit to foreclose the mortgage is not barred until action for personal liability on the debt thereby secured is barred. (Dighton v. First Exchange Nat. Bank, supra; Richey v. Sinclair, 167 Ill. 184, 47 N.E. 364; Waterson v. Kirkwood, 17 Kan. 9; Hendricks v. Brooks, 80 Kan. 1, 133 Am. St. 186, 101 P. 622; Stein v. Kaun, 244 Ill. 32, 91 N.E. 77; McLaughlin v. Senne, 78 Neb. 631, 111 N.W. 377; Robertson v. Stuhlmiller, 93 Iowa 326, 61 N.W. 986; Tukey v. Reinholdt (Iowa), 130 N.W. 727; Ewell v. Daggs, 108 U.S. 143, 2 Sup. Gt. 408, 27 L.Ed. 682.)

WILLIAM A. LEE, C. J. Budge, Givens and Taylor, JJ., concur.

OPINION

WILLIAM A. LEE, C. J.

--This action was commenced by plaintiff International Mortgage Bank, a foreign corporation, upon a note and mortgage given by J. E. Wallace and his wife, Addie M. Wallace, to the Netherlands American Mortgage Bank, a foreign corporation. The note was dated at Moscow, Idaho, March 12, 1909, and was actually signed at Spokane, Washington, by the makers who appear never to have been residents of this state. Soon after the execution of the note and mortgage, the mortgagors conveyed the mortgaged property to defendants S. Barghoorn and his wife, Franc Barghoorn. This action was commenced against defendants S. Barghoorn and his wife, Franc Barghoorn, E. N. Johnson, and the Potlatch Lumber Company. All of the defendants, excepting Franc Barghoorn, were defaulted for failure to answer the complaint or because of a withdrawal of any claim of interest in the mortgaged premises, and the case proceeded to judgment against defendant and appellant Franc Barghoorn to foreclose her interest in the mortgaged premises.

The court below found there was due and unpaid on the note and mortgage, including interest and attorney fees, a balance of $ 7,631.40; that the same was secured by said mortgage on the premises described therein, and decreed a sale of said premises, from which decree this appeal is taken.

Prior to the trial of the cause, the parties, by their counsel, filed a stipulation that all of the allegations contained in paragraphs 1, 2, 3, 5, 6, 7, 8, 10, 11 and 12 of plaintiff's amended complaint "are true and correct; and upon the trial of the above-entitled cause shall be treated as admitted by said defendant Franc Barghoorn and plaintiff need not offer any evidence in support thereof."

The facts alleged in the complaint that are admitted by this stipulation are corporate existence of respondent in this action and of its predecessor in interest the mortgagee and payee mentioned in the note; that both corporations had qualified to do business in this state; that the Barghoorn were husband and wife and were at the time of filing the complaint residents of the state of Washington, and had not been, at any time therein mentioned, residents of Idaho; that on March 12, 1909, the said J. A. Wallace and Addie M Wallace were husband and wife and owned the premises described in the mortgage and executed said note, sued on in this action, for $ 11,000, and secured the same by giving a mortgage upon the premises described in paragraph six of the amended complaint; that said mortgage was acknowledged in the state of Washington so as to entitle it to be recorded; that it was recorded in Latah county, Idaho, March 16, 1909; that when the Wallaces executed this note and mortgage they were residents of Spokane, Washington, and at no time since has either of them resided in Idaho; that on March 13, 1909, the Wallaces, for value, sold, transferred, and by proper deed conveyed the mortgaged premises to defendant S. Barghoorn a...