Law v. Spence

• Decision Date: 12 March 1897
• Citation: 48 P. 282,5 Idaho 244
• Parties: LAW, ADMINISTRATOR, v. SPENCE
• Court: Idaho Supreme Court

48 P. 282

5 Idaho 244

LAW, ADMINISTRATOR, v. SPENCE

Supreme Court of Idaho

March 12, 1897

MORTGAGE LIEN-HOMESTEAD.-Under the law of Idaho a mortgage lien cannot be defeated by a declaration of homestead made after the mortgage lien attaches.

RESIDENCE-HOMESTEAD-COMMUNITY PROPERTY.-The only estate or interest the wife has in that portion of the community property which is occupied as a residence, and not dedicated as a homestead, is subject to the control of the husband, except as to alienation or encumbrance, as prescribed by the statutes.

ABANDONMENT OR CHANGE OF RESIDENCE WITHOUT CONSENT OF WIFE.-A residence can be changed or abandoned at any time by the husband without the consent of the wife, and when such change or abandonment has taken place the property is again under the absolute control of the husband, unless the same has been dedicated as a homestead, as provided by law.

STATUTE OF LIMITATIONS.-But one action can lie for the recovery of any debt secured by a lien upon real or personal property in this state, and where such action is barred by the statute of limitations as to the debt, the lien is carried with it and is likewise barred, and whatever will prevent the running of the statute upon one will prevent it upon both.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Reversed.

J. C Rich, for Appellant.

Defendant R. S. Spence paid from maturity of the note, November 1 1889, to January 1, 1891, monthly, interest payments, and indorsed same in his own handwriting on the note itself. These indorsements were evidence of part payments, and each was an acknowledgment of the debt, and the statute was suspended by each of these payments, by reason of such indorsement by said defendant. The indorsement made in manner above, by the defendant, was an acknowledgment signed by him. (Hawkins v. Chace, 19 Pick. (Mass.) 505; Penniman v. Hartshorn, 13 Mass. 87; Auzerais v Naglee, 74 Cal. 60, 15 P. 371.) A distinction between "sign" and "subscribe" is recognized, the latter meaning that the name should be signed at end of document, while former does not mean that it should. (James v. Patten, 6 N.Y. 13, 55 Am. Dec. 376, and note; Clason v. Bailey, 14 Johns. 484.) In the Kelly-Leachman case this court lays down the following propositions, to wit: 1. Giving a note for interest due on a mortgage debt removes the bar of the statute; 2. A mortgage is a mere incident of the debt which it secures; 3. Statutes of limitation act on the remedy only, and not upon the debt; 4. The lien of a mortgage is not impaired so long as the debt is not extinguished, nor right to enforce lost. (See Kelly v. Leachman, 3 Idaho 629, 33 P. 44, 34 P. 813, and cases there cited; Lent v. Morrill, 25 Cal. 492.)

Reeves & Terrell, Chalmers & Beckwith, Hawley & Puckett, C. M. White and R. S. Spence, for Respondents.

A wife may pledge or mortgage her property for her husband's debt, and if she does so such property occupies the position of a surety or guarantor, and will be discharged by anything that would discharge a surety or guarantor who was personally liable. (Brandt on Suretyship and Guaranty, sec. 22; 11 Md. 465; Denison v. Gibson, 24 Mich. 187; Spear v. Wood, 20 Cal. 659; Hassey v. Wilke, 55 Cal. 528; Hubbard v. Ogden, 22 Kan. 258; Bank of Albion v. Burns, 46 N.Y. 171.) When the debt is barred by the statute of limitations the lien of the mortgage is discharged. (2 Jones on Mortgages, sec. 1207; Lord v. Morris, 18 Cal. 482; Low v. Allen, 26 Cal. 141; Wood v. Goodfellow, 43 Cal. 186; Barber v. Babel, 36 Cal. 11; Gleason v. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 P. 551; Merced Bank v. Rosenthal, 99 Cal. 39, 31 P. 849, 33 P. 732.) Part payment by one joint debtor or his promise or acknowledgment without the assent or knowledge of the others before or after the statute of limitations has run against the debt, will not bind the others. (Cowhick v. Shingle, 5 Wyo. 87, 63 Am. St. Rep. 17, 37 P. 689; Bergman v. Bly, 66 F. 40; Kallenbach v. Dickinson, 100 Ill. 427, 39 Am. Rep. 47; Van Keuren v. Parmelee, 2 N.Y. 523, 51 Am. Dec. 322, and note; Shoemaker v. Benidick, 11 N.Y. 181, 62 Am. Dec. 95, and note; Winchell v. Hicks, 18 N.Y. 558; Littlefield v. Littlefield, 91 N.Y. 203, 43 Am. Rep. 663; Beitz v. Fuller, 10 Am. Dec. 697, notes; Union Water Co. v. Murphy's Flat Fluming Co., 22 Cal. 621.) The homestead right is favored in the law, and when it is made security for debt by the signature and consent of the wife, it is favored even more than a surety, or the security given by a third person. (Dunn v. Buckley, 56 Wis. 190, 14 N.W. 68; Jones v. Dow, 18 Wis. 241; White v. Polleys, 20 Wis. 503, 91 Am. Dec. 432; Lloyd v. Frank, 30 Wis. 306; Boyd v. Ellis, 11 Iowa 97.) When a note and mortgage are once barred by limitations the mortgagor by a subsequent promise or acknowledgment cannot revive the debt or mortgage against his grantee or other persons who have acquired interest in the premises prior to such revivor. (2 Jones on Mortgages, sec. 1202; Schmuker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Day v. Baldwin, 34 Iowa 380.) An acknowledgment of a debt which will take the case out of the statute of limitations must be unqualified and unconditional. (Wetzell v. Buzzard, 11 Wheat. 309; Bell v. Morrison, 1 Pet. 351, 7 L. ed. 174; Moore v. Bank, 6 Pet. 86, 8 L. ed., 329; Clementson v. Williams, 8 Cranch, 72, 3 L. ed., 491; Eubanks v. Leveridge, 4 Saw. 274, F. Cas. No. 4544; Hardy v. Harbin, 4 Saw. 536, F. Cas. No. 6060; Bangs v. Hall, 2 Pick. 368, 13 Am. Dec. 437; Weston v. Hodgkins, 135 Mass. 326.)

HUSTON, J. Sullivan, C. J., concurs. Quarles, J., did not sit in case or take part in the decision.

OPINION

HUSTON, J.

On October 31, 1888, the defendant R. S. Spence made, executed and delivered to one Hannah B. Humphreys his certain promissory note for the sum of $ 2,500, which note was payable, by the terms thereof, on or before the first day of November, 1889, with interest at the rate of one per cent per month from date until paid, interest payable monthly. To secure the payment of said note and the interest thereon according to the terms thereof, the said R. S. Spence and Eliza Spence, his wife, on the first day of November, 1888, executed and delivered to said Hannah B. Humphreys a mortgage upon certain real estate in the village of Paris, county of Bear Lake, state of Idaho. To further secure the payment of said note and the interest thereon according to the terms thereof, the said R. S. Spence, on the said first day of November, 1888, made and delivered to the said Hannah B. Humphreys a certain chattel mortgage upon certain law books, constituting either in whole or in part the law library of the said R. S. Spence. These mortgages were duly acknowledged and recorded. The interest was paid upon said note to September 1, 1891, and thereafter payments of interest were made up to November 11, 1893, the date of the death of said Hannah B. Humphreys. On the fourteenth day of August, 1893, September 13, 1893, September 14, 1893, and October 13, 1893, said R. S. Spence delivered to the agent of said Hannah B. Humphreys written orders, drawn and signed by himself, for sums varying from eight dollars and twenty cents to sixteen dollars and eighty cents, upon the firm of Lewis & Lewis, which orders were duly paid by said firm, and the amount thereof duly indorsed upon said note. The said Hannah B. Humphreys died on the eleventh day of November, 1893. On the eighth day of January, 1894, the plaintiff was duly appointed administrator of the estate of said Hannah B. Humphreys, deceased, qualified as such administrator, and entered upon the discharge of his duties. On the eleventh day of January, 1895, this action was commenced. The complaint sets forth the facts substantially as hereinbefore stated. To this complaint defendants filed a general demurrer, also demurrer setting up the statute of limitations, and various other grounds, all of which were by the court overruled as to the defendant R. S. Spence, but sustained as to the defendant Eliza Spence. Defendant R. S. Spence, having leave of the court so to do, on February 22, 1895, filed his answer, wherein he admits the execution of the note and mortgages as set forth in plaintiff's complaint, admits the payment of the taxes upon the mortgaged premises by the plaintiff and by his intestate for the years 1892, 1893 and 1894. There were two interventions in the case, but, as they are not concerned in this appeal, it is unnecessary to consider them. After the filing of the answer of said defendant R. S. Spence, to wit, on February 23, 1895, plaintiff moved the court for leave to file the following amendment to his complaint: "Comes now the plaintiff in the above-entitled action, by leave of court first had and obtained, files this, his amendment to his complaint herein, and to the first cause of action herein stated, and, in addition to the matter stated herein, alleges: That the note, which is fully set out on page 2 of the complaint, was given by the defendant R. S. Spence in settlement of moneys received by said defendant as the attorney of the said Hannah B. Humphreys. That the said defendant was employed by said Hannah B. Humphreys prior to the first day of October, 1888, to collect and receive moneys due said Hannah B. Humphreys from the estate of her deceased brother, William Winks Bocock, in England; and that as such attorney, and acting for said Hannah B. Humphreys, the said defendant R. S. Spence did, prior to the thirty-first day of October, 1888, receive for the use and benefit and the property of said Hannah B. Humphreys more than $ 3,000 in lawful money. That out of said money so received by him the said defendant R. S. Spence retained, over and above his commission and...