McMillan v. McCormick

• Decision Date: 15 May 1886
• Citation: 7 N.E. 132,117 Ill. 79
• Parties: McMILLAN and others v. McCORMICK, Jr.
• Court: Illinois Supreme Court

117 Ill. 79

7 N.E. 132

McMILLAN and others

v.McCORMICK, Jr.

Supreme Court of Illinois.

May 15, 1886.

Appeal from First district.

SCHOLFIELD, J.

Henry H. Walker executed a mortgage, with a power of sale, on the eighteenth day of November, A. D. 1868, to Gerhard Foreman, to secure the payment of a promissory note for $2,000, with interest at the rate of 7 per cent. per annum, payable two years after that date. Appellant Thomson purchased a part of the land included in the mortgage at a sheriff's sale, under a judgment rendered on the fourteenth day of September, A. D. 1874, and appellant McMillan purchased another part of the land included in the mortgage at a sheriff's sale under a judgment rendered in July, A. D. 1875. On the third day of October, A. D. 1884, the trustee advertised that the land would be sold on the eighth day of November, A. D. 1884, pursuant to the power in the mortgage, for the payment of the indebtedness thereby secured. This bill was filed on the last-named day to enjoin that sale.

The principal ground relied on is that the time when the sale is advertised to be made is more than 10 years after the right to make the sale accrued; and that the sale is therefore barred by the eleventh section of the act in regard to limitations in force July 1, A. D. 1872. That section is: ‘No person shall commence an action or make a sale to foreclose any mortgage, or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrued.’ Section 24 of the same act, however, after repealing the several acts in regard to limitations previously in force, concludes thus: ‘But this section shall not be construed so as to affect any rights or liabilities, or any cause of action, that may have accrued before this act shall take effect.’ 2 Gross, St. 1873, pp. 258, 259. In the Revision of 1874 this section is omitted, and in chapter 131, § 5, the former statutes of limitations are repealed, with this saving clause: ‘When any limitation law has been revised by this or the twenty-seventh general assembly, and the former limitation law repealed, such repeal shall not be construed so as to stop the running of any statute; but the time shall be construed as if such repeal had not been made.’

In Dickson v. Chicago, B. & Q. R. Co., 77 Ill. 331, we held that the above words, ‘this section,’ should be construed to mean ‘this act,’ so that the section would read: ‘But this act shall not be construed so as to affect any rights or liabilities,’ etc. In Means v. Harrison, 114 Ill. 248, S. C. 2 N. E. Rep. 64, we held that a promissory note executed on January 25, A. D. 1872, payable two years after date, was not, on the fifteenth day of October, A. D. 1884, when suit was brought, barred by the sixteenth section of this act, which requires that actions on promissory notes shall be commenced within 10 years next after the cause of action accrued; but that the case was governed by the act of the fifth of November, A. D. 1849, which was in force when the note was executed. It was, among other things, then said, after construing the saving clause to the effect that it extended to notes that had been executed, but which were not yet due when the act took effect:

‘This construction is in accord with the general rule that a statute is to operate in futuro only, and it is not to be construed to affect past transactions; and that, if it is left doubtful what was the real design as to its having a prospective or retroactive effect, the statute must be so construed as to have a prospective effect only. Thompson v. Alexander, 11 Ill. 55;Dobbins v. National Bank, 112 Ill. 553.’

It is conceded that that case would be conclusive of the question of limitation here had mortgages been specifically named in any preceding limitation act; but it is contended they are not so named, and therefore the case is governed by Hyman v. Bayne, 83 Ill 256, and Gridley v. Barnes, 103 Ill. 216, where it was held that the construction given in Dickson v. Chicago, B. & Q. R. Co., supra, to the saving clause of section 24, was applicable only to cases included in previous limitation acts; but that it did not apply to cases not included in such acts, and therefore, as to such cases, the periods of limitation specified in the act in force July 1, 1872, must be applied.

It is true, the words ‘mortgages and deeds of trust’ do not occur in any act of limitation previous to that in force July 1, 1872; but this court has held that such instruments were barred by limitation laws previously to the act on that subject, adopted in 1849, and by that act, since its adoption, both in proceedings in equity and in actions at law. Where there is a covenant in the mortgage or deed of trust for the payment of the debt, which is, perhaps, rarely the case, it can need no argument to show that the instrument would in nowise, so far as affects this question, be different from any other specialty for the payment of money, and therefore the statute of limitations, applicable to instruments of that character in general, would be applicable to it. But as to mortgages or deeds of trust which are not given as being themselves obligations for the...