Kerndt & Bros. v. Porterfield

• Decision Date: 17 June 1881
• Citation: 9 N.W. 322,56 Iowa 412
• Parties: KERNDT & BROS. v. PORTERFIELD ET AL
• Court: Iowa Supreme Court

9 N.W. 322

56 Iowa 412

KERNDT & BROS. v. PORTERFIELD ET AL

Supreme Court of Iowa, Des Moines

June 17, 1881

Appeal from Allamakee District Court.

ACTION in chancery to foreclose a mortgage executed by defendants Porterfield and wife. A decree was entered declaring plaintiff's mortgage junior to a mortgage under which one of the other defendants claims. Plaintiffs appeal. The facts of the case are stated in the opinion.

REVERSED.

Dayton & Dayton and L. E. Fellows, for appellants.

H. H Stilwell, for appellees.

OPINION

BECK J.

I. The promissory note secured by the mortgage, which plaintiffs seek to foreclose, was executed October 20th, 1865, and was due three years after date. The petition shows that the mortgagors executed a written promise to pay the debt, thereby reviving it, on the 22d day of January, 1879. C. O. Howard is made a defendant, the petition alleging that he has or claims to have a lien or interest in the property covered by the mortgage, inferior and subject to plaintiffs' mortgage.

Howard in his answer alleges that Porterfield and wife, on the 6th day of August, 1875, executed to him a mortgage upon the property involved in this action to secure two promissory notes made upon the same day, and that in February, 1879, he recovered a decree under which the property was sold on execution, May 10, 1879, and a sheriff's deed was executed to him on the 22d day of November, 1880. It is alleged and claimed in the answer that, as more than ten years had expired after the maturity of plaintiffs' note when it was revived by the new promise of payment, the mortgage became and was barred as against Howard and the rights he acquired under his mortgage.

Plaintiffs demurred to Howard's answer on the ground that it does not set up a sufficient defense to the action. The demurrer was overruled and thereupon a decree was entered declaring plaintiffs' mortgage to be inferior to Howard's title acquired under his mortgage.

II. The question presented by the case is this: Did the new promise of Porterfield remove the bar of the statute of limitations as against Howard, so that plaintiffs' mortgage may be enforced as a prior lien on the property?

It will be observed that Howard's mortgage was executed before the expiration of ten years from the maturity of plaintiffs' note secured by his mortgage; that the new promise was made after the expiration of that time, and that the foreclosure of Howard's mortgage and the sheriff's sale and deed were after the new promise reviving the debt due to plaintiffs. Will the new promise revive the mortgage as against the junior mortgage, executed before the period of limitation had run against the senior mortgage?

An action to foreclose a mortgage is not barred by the statute of limitations so long as the debt remains unpaid and capable of being enforced. Brown v. Rockhold, 49 Iowa 282; Clinton County v. Cox, 37 Iowa 570. The mortgage is an incident of the debt and follows it, and its existence as a lien is only terminated when the debt ceases to be enforceable.

As between the mortgagor and mortgagee it cannot be doubted that a new promise which is sufficient to revive the debt will also revive the mortgage. It seems that the same rule ought to prevail against all persons interested in the mortgaged property unless there exist reasons which in equity would render it unconscionable to enforce the mortgage lien as against their interest. If such a rule did not prevail the mortgage would not continue as long as the debt existed, and the mortgagee would be deprived of the security provided for the debt. We think, however, that equities may arise which would defeat or suspend the lien in order to protect the interest of others. It may be,...