Love v. West

• Decision Date: 22 April 1915
• Docket Number: (No. 280.)
• Citation: Love v. West, 169 N.C. 13, 84 S.E. 1048 (N.C. 1915)
• Parties: LOVE. v. WEST et al.
• Court: North Carolina Supreme Court

84 S.E. 1048

169 N.C. 13

LOVE.

v.WEST et al.

(No. 280.)

Supreme Court of North Carolina.

April 22, 1915.

Appeal from Superior Court, New Hanover County; Allen, Judge.

Action by D. C. Love, administrator, against Elizabeth P. West and another. From a judgment for defendants, plaintiff appeals. Reversed.

John D. Bellamy & Son, of Wilmington, for appellant.

Herbert McClammy and Bellamy & Bellamy, all of Wilmington, for appellees.

BROWN, J. This action is brought to foreclose a mortgage, executed by Samuel J. West to George Harris in 1877, securing a note, payable two years after date. The property described in the mortgage is the one-fifth interest which the mortgagor owned in the mortgaged premises. The defendants pleaded the statute of limitation. The referee and the judge below held that the action was barred. It is admitted that the mortgagor left the state of North Carolina in 1879 and since then has resided continuously outside of this state. In 1902 the mortgagor conveyed his interest in the property to the defendants Elizabeth P. West and Mariana West. This action was instituted April 1, 1903, for the purpose of foreclosing the mortgage upon the said one-fifth interest. The said Elizabeth P. and Mariana are parties defendant.

Under section 391, subsec. 3, of the Revisal, an action for the foreclosure of a mortgage is generally barred in 10 years, unless it has been kept alive by payments or renewed promises to pay. But there is a general exception which applies to this cause of action, as well as others. Section 366, Revisal, reads as follows:

"If, when the cause of action accrue * * * against any person, he shall be out of the state, action may be commenced, * * * within the times herein respectively limited, after the return of such person into this state, and if, after such cause of action shall have accrued * * * such person shall depart from and reside out of this state, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be * * * taken as any part of the time limit for the commencement of such action, or the enforcement of such judgment."

It is contended by the defendants that the proceeding to foreclose a mortgage is an action in rem, which could have been commenced at any time, without personal service upon the mortgagor, and that for this reason this particular cause of action does not come within the provisions of section 366. It is unnecessary to discuss the character of this action, whether in personam or in rem, as the statute contains no exception. Some of the states have enacted statutes similar to ours, but have provided therein that they shall not apply to proceedings which may act directly upon the property situate within the state, as proceedings in rem do, but there is no such exception in our statute. A number of states have statutes similar to ours, and in all of them that we have examined, it has been held that an action to foreclose a mortgage comes within the purview of the statute, unless there is an exception, and that the absence of the mortgagor from the state suspends the running of the statute. Falwell v. Hening, 78 Tex. 278, 14 S. W. 613; Huff v. Crawford, 88 Tex. 368, 30 S. W. 546, 31 S. W. 614, 53 Am. St. Rep. 763; Id., 89 Tex. 214, 34 S. W. 606; Wood v. Goodfellow, 43 Cal. 185; Watt v. Wright, 66 Cal. 202, 5 Pac. 91; Emory v. Keighan, 94 Ill. 543; Robertson v. Stuhlmiller, 93 Iowa, 326, 61 N. W. 986; Chicago R. R. v. Cook, 43 Kan. 83, 22 Pac. 9S8; Whalley v. Eldridge, 24 Minn. 358.

We have held that if a debtor is out of the state at the time the cause of action accrues, the statute of limitation does not begin to run until he returns to this state for the purpose of making it his residence. Armfield v. Moore, 97 N. C. 38, 2 S. E. 347. In that case it is said:

"It is not the policy * * * of this state to drive its citizens, directly or indirectly, to seek their legal remedies abroad, or to encourage nonresidents to keep out of it and beyond the jurisdiction of its courts, as would * * * be the case if by keeping out of the state the debtor or person against whom a cause of action exists could avail himself of the lapse of time during his absence."

The point presented by this appeal has been practically decided in this court by Grist v. Williams, 111 N. C. at page 54, 15 S. E. 889, 32 Am. St. Rep. 782. This was an ac-tion in rem, in which the plaintiff was proceeding by attachment against property located within this state, the defendant being a resident of the state of Virginia. In that case it is held that the fact that a nonresident debtor has property within the state will not affect the statutes suspending the operation of the statute of limitation for the period during which the person against whom the judgment is made is out of the state.

It has been suggested that a presumption of payment has arisen against the bond and mortgage sought to be foreclosed. It has been said that for the sake of repose, and to discourage stale claims, the law, after...