Keller v. Souther
| Citation | 144 N.W. 671,26 N.D. 358 |
| Decision Date | 11 December 1913 |
| Court | United States State Supreme Court of North Dakota |
Appeal from District Court, Morton County, W. C. Crawford, Special J.
From an order sustaining a demurrer to the complaint, plaintiff appeals.
Affirmed.
W. H Stutsman, for appellant.
On demurrer to a replication plaintiff may take advantage of any defects in the plea. Townsend v. Jemison, 7 How 706, 12 L.Ed. 880.
A bad reply to a bad answer will be held good on demurrer. State ex rel. Metsker v. Mills, 82 Ind. 126; Ashley v. Foreman, 85 Ind. 55; Peden v Cavins, 134 Ind. 494, 39 Am. St. Rep. 276, 34 N.E. 7; Puntenny v. Paddock, 1 Blackf. 415; Wile v Matherson, 2 G. Greene, 184; Murdock v. Winter, 1 Harr. & G. 471.
The mortgage is barred by limitation. 25 Cyc. 1237; Fowler v. Wood, 150 N.Y. 584, 44 N.E. 1124; Low v. Allen, 26 Cal. 141.
Only he in whose favor the statute operates can waive or deprive himself of its benefits. Colonial & U.S. Mortg. Co. v. Northwest Thresher Co. 14 N.D. 147, 70 L.R.A. 814, 116 Am. St. Rep. 642, 103 N.W. 915, 8 Ann. Cas. 1160.
The statute of limitations is suspended by the death of the debtor only during the time until a creditor can apply for administration, or for a reasonable time. Kulp v. Kulp, 51 Kan. 341, 21 L.R.A. 550, 32 P. 1118; Bauserman v. Blunt, 147 U.S. 647, 37 L.Ed. 316, 13 S.Ct. 466.
Hanley & Sullivan, for respondent John Souther.
He who seeks equity must do equity. The supreme court of this state is not alone in amplifying this equitable rule. Tracy v. Wheeler, 6 L.R.A. (N. S.) 517; Booth v. Hoskins, 75 Cal. 271, 17 P. 225; De Cazara v. Orena, 80 Cal. 132, 22 P. 74; Burns v. Hiatt, 149 Cal. 617, 117 Am. St. Rep. 157, 87 P. 196; Michigan Trust Co. v. Red Cloud, 76 Neb. 634, 107 N.W. 760.
The statute of limitations is a shield, and not a sword; it will save from an attack, but cannot be used for the purpose of making the attack itself effectual. 16 Cyc. 140; Marshutz v. Seltzor, 5 Cal.App. 140, 89 P. 877.
Neither the mortgagor, nor his successor in interest with notice of the mortgage, can obtain a decree quieting title without paying the mortgage debt, even though outlawed. De Cazara v. Orena, 80 Cal. 132, 22 P. 74; Brandt v. Thompson, 91 Cal. 458, 27 P. 763; Boyce v. Fisk, 110 Cal. 107, 42 P. 473; Hall v. Arnott, 80 Cal. 348, 22 P. 200; Spect v. Spect, 88 Cal. 437, 13 L.R.A. 137, 22 Am. St. Rep. 314, 26 P. 203; Booth v. Hoskins, 75 Cal. 271, 17 P. 225; Mahoney v. Bostwick, 96 Cal. 53, 31 Am. St. Rep. 175, 30 P. 1020; Jones, Mortg. 1083, and 1 Pom. Eq. Jur. 385-387.
This is an appeal from an order sustaining a demurrer interposed to plaintiff's reply. The action is a statutory one to determine adverse claims to real property, the complaint being in the usual form. The defendant Souther alone made answer, and he alleges therein the execution and delivery to him of a mortgage upon the premises in controversy, by one Charles E. Meech, on May 31, 1887, containing covenants against encumbrances and of general warranty, and securing the promissory note of one Tilden R. Selmes for $ 800 payable to such defendant, and dated May 20, 1887. Such answer alleges that such note is still unpaid and such mortgage unsatisfied, and that the same are still owned by this defendant. No affirmative relief is prayed for, but the facts, as above alleged, are thus alleged by way of defense merely. Notwithstanding this, plaintiff served a reply wherein she alleges that Meech did not sign such note, and was in no wise personally liable for the debt represented thereby, and that he executed the mortgage solely to secure the debt of Selmes; that Selmes alone executed the note, and had no interest in the property in controversy and did not join in the execution of such mortgage, and that he removed permanently from this state about the year 1894, becoming a resident of Minnesota, where he died about August 1, 1895. Then follow allegations showing that the cause of action on such note and mortgage was long since barred by the statute of limitations, and that defendant Souther at no time made any effort to collect such note against Selmes or his estate. That in August, 1890, Charles E. Meech died intestate, and his estate was duly probated, Pauline C. and Robert Meech being declared his only heirs, and that no attempt was made by defendant to collect such indebtedness or to foreclose such mortgage, and that by lapse of time he is barred from asserting any claim or lien against said land. Then follows an allegation to the effect that on October 23, 1909, such heirs of Charles E. Meech conveyed the land in controversy to the plaintiff, who has ever since been the owner thereof.
The defendant Souther demurred to such reply upon the ground that it does not state facts sufficient to constitute a defense to the answer, nor are such facts sufficient to entitle plaintiff to the relief demanded in the complaint.
The procedure adopted is somewhat novel under our practice, and we discover no warrant therefor. In view of the fact that the answer contains no counterclaim, but merely defensive matter a reply was neither necessary nor proper, but counsel for both parties, as well as the trial court, treated the pleadings as raising an issue of law as to the sufficiency as a defense of the matters alleged in the answer, and we shall dispose of the appeal on this theory, and we shall assume, for the purposes of this decision, that the matters alleged in the so-called reply are a part of the plaintiff's complaint. Do the facts alleged in the answer constitute any defense to plaintiff's alleged cause of action? We think the learned trial judge answered this question correctly, and his order sustaining the demurrer must be affirmed. Although the cause of action for the collection of...
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