Nares v. Bell
| Decision Date | 03 December 1903 |
| Docket Number | 12,190 |
| Citation | 92 N.W. 571,66 Neb. 606 |
| Parties | L. A. NARES ET AL. v. GEORGE M. BELL ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Boone county. Bill in equity to foreclose a specific lien--a mortgage on real estate. Tried below before MUNN, J. Decree for plaintiffs. Defendants bring error. Reversed.
REVERSED AND REMANDED.
C. E Spear, for plaintiffs in error.
H. C Vail, R. W. Hobart and James G. Reeder, contra.
Nares brought an action in the district court for Boone county to foreclose a mortgage executed by George M. and Louisa A Bell. Patrick H. Smith was the owner of a prior mortgage, made to him March 4, 1888. This mortgage secured two notes,--one for $ 150, due in one year, the other for $ 50, due in eighteen months. On the 31st day of August, 1900, he intervened in the action brought by Nares, claiming a foreclosure of his mortgage for the full amount secured thereby, and asking that it be declared a first lien upon the mortgaged premises. As will be noticed from the above statement, the note for $ 150 had matured more than ten years prior to the filing of his petition of intervention, and the statute of limitations was interposed against his recovery so far as this note is concerned. The district court entered a decree foreclosing the mortgage for the full amount secured thereby, and the case is brought here upon error.
Should the district court have entered a decree foreclosing the mortgage for the full amount secured thereby, or had the intervener, by his neglect to commence foreclosure proceedings within ten years from the maturity of the note lost his right to foreclose for the amount represented by that note? It is insisted by the defendant in error that where a mortgage secures a debt payable by installments, the statute does not commence to run against a foreclosure of the mortgage until the last installment has matured; and we are cited to several cases where the debt or the interest reserved upon the debt was payable in installments, and the mortgage contained a clause maturing the whole debt on default in the payment of any installment when due. In the cases cited, it was held that this condition in the mortgage conferred upon the mortgagee a mere option, which he might exercise or not at his pleasure; but if he failed to exercise it, and to declare the debt due before its maturity, as shown by the face of the contract, that the statute did not commence to run until the debt had fully matured according to the terms of the notes secured by the mortgage. Watts v. Creighton, 85 Iowa 154, 52 N.W. 12; Richards v. Daley, 116 Cal. 336, 48 P. 220; Mason v. Luce, 116 Cal. 232, 48 P. 72; Lowenstein v. Phelan, 17 Neb. 429, 22 N.W. 561. In Wood, Limitations, [*] section 224, it is said: "When a mortgage is payable by installments, the statute attaches to each installment as it becomes due, but the mortgagor's possession does not become adverse until the last installment has matured." [+] This, we think, announces the true rule. At common law, the mortgagor having by his mortgage conveyed to the mortgagee the legal title to the premises, his possession, if he remain in possession of the estate, is as tenant of the mortgagee; and such possession can not become adverse or hostile until the full running of the statute after the maturity of the last installment due upon the mortgage. As long as any part of the mortgage debt remains unpaid and not barred, the mortgagee may assert the legal title conveyed to him by the mortgage; but in this state, where the mortgage is a security, giving a mere lien on the premises, the question...
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