Paine v. Dodds
| Decision Date | 01 May 1905 |
| Citation | 103 N.W. 931,14 N.D. 189 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Nelson county; Fisk, J.
Action by J. A. Paine against Helen Dodds and others. Judgment for defendants, and plaintiff appeals.
Reversed.
Reversed and remanded. Appellant recovered the taxable costs of this appeal.
Newman Spalding & Stambaugh, for appellant.
An action for the foreclosure of a mortgage is equitable in its nature, and in personam. Rev. Codes 1899, section 5156; Brainard v. Cooper, 10 N.Y. 356.
An action to foreclose a mortgage is barred ten years after the cause of action accrued, subject to the same exception. Rev Codes, section 5207; chapter 120, Laws of 1901; Peters v De La Plaine, 49 N.Y. 362; Ozmun v. Reynolds, 11 Minn. 459; Whalley v. Eldridge, 24 Minn. 358; Clinton County v. Cox, 37 Iowa 570; Hanchett v. Blair, 100 F. 826.
Such action is not barred; debt secured by the mortgage is barred. Rev. Codes 1899, sections 5200, 5201; 13 Am. & Eng. Enc. Law (1st Ed.) 704; Wiltsie on Mortgage Foreclosure, section 63, note 5.
The provisions of the Probate Code have no application, they only operate to prevent payment of debt from assets of decedent's estate; nonpresentation of claim to administrator does not affect this action. Jones on Mortgages, section 1214; Wiltsie on Mortgage Foreclosure, section 64; Allen v. Moer, 16 Iowa 307; Rev. Codes 1899, section 6401.
Statute of limitations was suspended when decedent's heirs and administrator departed from and resided out of the state. Rev. Codes, section 5210.
Homestead descends to heirs, subject to homestead rights of widow, charged with the mortgage debt, and becomes a primary fund for the payment of the debt, which could not be a charge upon the assets of the estate. Comp. Laws, section 4367; Jummel v. Jummel, 7 Paige, 591; Halsey v. Reed, 9 Paige, 446; Johnson v. Corbett, 11 Paige, 265.
The defendant Frich took the land subject to the mortgage debt, and it continued in her hands a primary fund for the payment of the debt, and, to the extent of the value of the mortgaged premises, she became the principal debtor. Johnson v. Zink, 51 N.Y. 333; Sands v. Church, 6 N.Y. 347; Hartley v. Harrison, 24 N.Y. 170; Freeman v. Auld, 44 N.Y. 50; Insurance Co. v. Nelson, 78 N.Y. 137; Bennett v. Bates, 94 N.Y. 354; Murray v. Marshall, 94 N.Y. 611; Colgrove v. Tallman, 67 N.Y. 95, 23 Am. Rep. 90; Horton v. Davis, 26 N.Y. 495; Fuller v. Hunt, 48 Iowa 163; Tice v. Annin, 2 Johns. Ch. 125; Palmer v. Butler, 36 Iowa 576; Sanger v. Nightingale, 122 U.S. 176, 30 L.Ed. 1105.
She holds the premises under an agreement to apply the premises to the satisfaction of the mortgage debt, and the statute of limitations does not run upon this obligation so assumed by her prior to its assumption. Murray v. Marshall, 94 N.Y. 611; Schmucker v. Siebert, 18 Kan. 104, 26 Am. Rep. 765.
The land being in the hands of the defendant Frich the primary fund for the payment of the debt, secured by the mortgage, and she, having purchased subject to the mortgage, cannot plead the statute of limitations. Hyer v. Pruyn, 7 Paige Ch. 465, 34 Am. Dec. 355; Hughes v. Edwards, 9 Wheaton, 489, 22 U.S. 489, 6 L.Ed. 142; Waterson v. Kirkwood, 17 Kan. 9; Schmucker v. Siebert, 18 Kan. 104, 26 Am. Rep. 765; Life Ins. & Trust Co. v. Covert, 6 Abb. Pr. N. S. 154; Murdock v. Waterman, 145 N.Y. 55, 39 N.E. 829, 27 L. R. A. 418.
Tracy R. Bangs, for respondent.
Any person in privity with the claim of which enforcement is sought, such as heirs and personal representatives of a deceased mortgagor, junior mortgagees and subsequent assignees or grantees of the mortgagor, is entitled to plead the statute of limitations. 19 Am. & Eng. Enc. Law, 184; Ewell v. Daggs, 108 U.S. 143, 27 L.Ed. 682, Sanger v. Nightingale, 122 U.S. 176, 30 L.Ed. 1105; Lord v. Morris, 18 Cal. 482; McCarthy v. White, 21 Cal. 495, 82 Am. Dec. 754; Grattan v. Wiggins, 23 Cal. 16; Coster v. Brown, 23 Cal. 143; Schmucker v. Siebert, 18 Kan. 104, 26 Am. Rep. 765; George v. Butler, 67 P. 263, 90 Am. St. Rep. 756; Anderson v. Baxter, 4 Ore. 105; Brandenstein v. Johnson, 73 P. 744.
The statute of limitations began to run when plaintiff's cause of action accrued, unless some recognized exception postponed its operation. 19 Am. & Eng. Enc. Law, 193. The debt fell due January 1, 1887, and the cause of action accrued January 6, 1887, and unless some disability on the part of the plaintiff postponed the running of the statute, it then commenced to run. Death of a debtor prior to maturity of the debt is not such disability. If the debt is due at the debtor's death, the statute begins to run immediately even if he is a nonresident, and if it ceases to run on his becoming a nonresident, it revives at his death. Hibernian Banking Ass'n v. Com. Nat'l Bank, 41 N.E. 919; Savage v. Scott, 45 Iowa 130; Teal v. Ayers, 9 Tex. 588.
On the accrual of a cause of action after the debtor's death, the statute commences to run whether there is a party competent to sue or be sued, or not. Hibernia S. & L. Soc. v. Conlin, 7 P. 477; Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152.
Section 5212 only suspends the running of the statute upon the death of a party against whom action may be brought.
Neither of the defendants owing the plaintiff any legal duty, no cause of action ever accrued against them, and the absence of one, or all, from the state would not suspend the running of the statute. Von Campe v. City of Chicago, 29 N.E. 892; Hill v. Townley, 47 N.E. 653; Belloc v. Rogers, 9 Cal. 124; Schadt v. Heppe, 45 Cal. 433; Carpenter v. Ingalls, 51 N.W. 348, 44 Am. St. Rep. 753.
The mortgagor is the only person charged with any legal duty towards the mortgagee. His estate might be obligated on his death if the claim was duly presented, but failure to do so does not affect the right to foreclose or the running of the statute of limitations. Section 6401, Rev. Codes 1899; Schadt v. Heppe, supra; McMillan v. Heyward, 29 P. 744; Thurber v. Miller, 75 N.W. 900; Gleason v. Hawkins, 73 P. 533.
If the action is barred as to the mortgagor, it is barred as to the subsequent owner of the land, and the converse of the proposition is true. Hanchett v. Blair, 100 F. 817; Ewell v. Daggs, 108 U.S. 143, 27 L.Ed. 682; Sanger v. Nightingale, 122 U.S. 176, 30 L.Ed. 1105.
Notwithstanding the death of the mortgagor and the absence of his administrator and heirs from the state, plaintiff always had, and has, a full and complete remedy upon his mortgage. Hogaboom v. Flower, 72 P. 547; Fowler v. Wood, 28 N.Y.S. 976; Eubank v. Leveridge, 4 Sawyer, 274; Jones on Mortgages, section 1197.
Section 5210, Rev. Codes 1899, suspending the statute by reason of absence, relates only to personal action; this action is not "against the person," and though, perhaps, not strictly in rem, is of the nature of an action in rem, and the reason for the exceptions in that section does not obtain in an action like this, when no personal responsibility is imputed to any defendant. Wiltsie on Mortgage Foreclosure, section 61; Fields v. Daisy Gold Mining Co., 73 P. 521; Fallon v. Butler, 21 Cal. 24, 81 Am. Dec. 140; Nagle v. Macy, 9 Cal. 426; Frische v. Kramer's Lessee, 16 Ohio 125, 47 Am. Dec. 368; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Freeman v. Alderson, 119 U.S. 185, 30 L.Ed. 372; Cole v. Conner, 10 Iowa 300; Iowa Loan & Trust Co. v. Dory, 19 N.W. 301; 9 Enc. Pl. & Pr. 220; Kershaw v. Thompson, 4 Johns. Ch. 609; Stevens v. Terry, 48 F. 7; Palmer v. McCormick, 28 F. 541; 17 Enc. Pl. & Pr. 43; 2 Wood on Limitations (2d Ed.) section 224; Eubanks v. Leveridge, 4 Sawy. 274; Martin v. Bond, 30 F. 15; Anderson v. Baxter, 4 Ore. 105; Hartzell v. Vigen, 6 N.D. 117, 69 N.W. 203, 35 L. R. A. 451, 60 Am. St. Rep. 586; Hurley v. Cox, 2 N.W. 705; Rector v. Rotten, 3 Neb. 177; Peters v. Dunnells, 5 Neb. 460; Henley v. Estes, 6 Neb. 386; McNaughton v. Burke, 89 N.W. 274; Frerking v. Thomas, 89 N.W. 1005; Colgrove v. Tallman, 67 N.Y. 95; Culp v. Culp, 32 P. 1118; Bauserman v. Charlott, 26 P. 1051; Hill v. Townley, 47 N.W. 653.
This is an appeal by plaintiff from a judgment dismissing an action to foreclose a mortgage on real property. The trial court held that the action was barred by the statute of limitations, which was the only defense relied upon. The appeal is under section 5630, Rev. Codes 1899, and, although a new trial of all the issues is demanded by the appellant, the only issue on which there is any controversy is that raised by the plea of the statute of limitations.
On December 24, 1883, James Dodds made and delivered to John R Paine a principal promissory note for $ 250, payable January 1, 1887, bearing interest at the rate of 10 per cent per annum, and three coupon notes for the annual interest due respectively on January 1, 1885, 1886 and 1887. To secure the payment of this debt, James Dodd made and delivered to John R. Paine the mortgage in question, covering a quarter section of land owned by the mortgagor in Nelson county, which mortgage was duly recorded January 2, 1884. The mortgagor died intestate November 5, 1884, seized of the mortgaged land, and left surviving him, as his heirs, his widow, Helen Dodds, and three children, David S. Dodds, Mary Colson and Jennie G. Wolff. Letters of administration upon the estate of James Dodds, deceased, were issued in Nelson county to the son, David S. Dodds, April 22, 1885. On April 16, 1887, pursuant to an order of the county court of Nelson county, the premises in question were set apart to the widow, Helen Dodds, as a homestead. David S. Dodds left the state of North Dakota about the middle of the year 1896, and took up his residence...
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