Livingston v. New England Mortgage Security Co.

• Decision Date: 06 January 1906
• Parties: LIVINGSTON v. NEW ENGLAND MORTGAGE SECURITY CO. et al.
• Court: Arkansas Supreme Court

91 S.W. 752

LIVINGSTON v. NEW ENGLAND MORTGAGE SECURITY CO. et al.

Supreme Court of Arkansas.

January 6, 1906.

Appeal from Faulkner Chancery Court; Jeremiah G. Wallace, Chancellor.

Suit by A. E. Livingston against the New England Mortgage Security Company and others. From a decree in favor of defendants, complainant appeals. Affirmed.

On January 31, 1884, Richard C. Ludwick and wife Mary J., executed a mortgage on the land in controversy to secure the payment of a debt to appellee, New England Mortgage Security Company. The mortgage was under seal and contained an express promise to pay the debt on January 31, 1889. A suit in equity was commenced by appellee on March 24, 1897, to foreclose the mortgage and on March 26, 1900, while the suit was still pending, the court made an order dropping it from the docket "with leave to plaintiff to reinstate the same at any time upon proper showing made." Three days later, appellant, Livingston, purchased the land from the defendants in the suit and received a deed from them, conveying the same to him. On March 23, 1901, the plaintiff in the suit caused a summons to be issued in regular form commanding the sheriff to summons the defendants therein, Richard C. Ludwick, and Mary J. Ludwick. The sheriff's return upon the summons, as brought into the record now before the court, states that he had served the same upon "the within-named Richard C. Ludwick and Mary J. Lind." The court, at the next term thereafter, made an order reinstating the cause under its original number, and, at a subsequent term, rendered a decree by default against said defendants Richard C. Ludwick and Mary J. Ludwick, for the amount of the mortgage debt, and condemned the land for sale by commissioner to satisfy the debt. The decree recites a finding by the court that said defendants had been duly served with process. The commissioner of the court proceeded to advertise the land for sale under the decree, and appellant brought this suit in the chancery court to prevent the sale and to cancel the former decree as a cloud upon his title to the land. He alleged in his complaint that the mortgage debt was barred by limitation before the original foreclosure suit was commenced, and that the suit was reinstated and the decree rendered without notice to said defendants therein. Upon final hearing, the court dismissed the complaint for want of equity, and the plaintiff appealed.

A. E. Livingston, for appellant. Rose & Coleman, for appellees.

McCULLOCH, J. (after stating the facts).

The mortgage was executed under seal and contained an express covenant to pay the debt, therefore the period of limitation within which foreclosure suit could be commenced was, under the statute, then in force, 10 years from the accrual of the right of action. New England Mortgage Security Co. v. Reding, 65 Ark. 489, 47 S. W. 132; American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263, 58 S. W. 250.

The suit was originally commenced within the statutory period. But even if it had not been brought within the time required, in order to take advantage of the statute of limitation, it must have been specially pleaded in the foreclosure suit. The decree in that suit, if valid at all, cut off all defenses which might have been pleaded therein. Church v. Gallic (Ark.) 88 S. W. 979; Ward v. Derrick, 57 Ark. 500, 22 S. W. 93. The order of court dropping the case from the docket, with leave to reinstate, was not a dismissal or discontinuance of the suit. A dismissal or discontinuance, though not a final determination of the controversy, is a final ending of that particular suit. Anderson, Dict. Def. Words, "Dismiss," p. 364; "Discontinuance," p. 360; "Nonsuit," p. 712; 14 Cyc. p. 391. The order made by the court in this case expressly negatives any intention to finally terminate the suit, and the effect of the order was merely to suspend it. The court...