Perkins v. Sterne

• Decision Date: 01 January 1859
• Citation: 23 Tex. 561
• Parties: DENNIS PERKINS v. EVA C. R. STERNE, ADMINISTRATRIX.
• Court: Texas Supreme Court

23 Tex. 561

DENNIS PERKINS

v.EVA C. R. STERNE, ADMINISTRATRIX.

Supreme Court of Texas.

1859.

A mortgage is treated in equity, so completely as an incident to the debt, that the payment of it extinguishes the mortgage, without a release from the mortgagee.

The assignment of the debt, even by parol, or the delivery of a note, payable to bearer, secured by mortgage, draws after it the mortgage, as appurtenant to the debt.

But the assignment of the interest of the mortgagee in the land, without an assignment of the debt, is without meaning or use.

The creditor has no remedy upon his mortgage, after his debt is barred by limitation.

But a new promise, by which a debt, barred by the statute, is revived, will also operate as a revival of the mortgage, though there be no words to that effect in the new promise.

A debtor may revive the debt, without reviving the mortgage, by declaring such to be his intention; for, a conditional promise to pay a debt that is barred, must be taken as it is made.

ERROR from Nacogdoches. Tried below before A. W. O. Hicks. The facts are stated in the opinion.

Clark & Walker, for the plaintiff in error.

BELL, J.

The plaintiff in error was the plaintiff in the court below. This suit was instituted against Mrs. E. C. R. Sterne, as administratrix of her deceased husband, Adolphus Sterne. The statement of facts shows, that the plaintiff was the owner and holder of several promissory notes, executed by Adolphus Sterne, and secured by a mortgage on lands. The notes became barred by the statute of limitations, and Adolphus Sterne, after they were barred, acknowledged the notes in writing, to be just claims against him, and promised to pay them; but, in the said written acknowledgment and promise, there was no reference made to the mortgage by which the notes were secured. After the death of Adolphus Sterne, the plaintiff presented the notes and the mortgage, authenticated in due form, to the administratrix, for her allowance of them, as claims against the estate of her deceased husband. The administratrix refused to allow any of the claims, as valid ones against the estate. This suit was instituted to establish the notes and the mortgage, as subsisting claims against the estate of the said Adolphus Sterne.

A jury was waived in the court below, and the cause submitted to the judge, who gave judgment in favor of the plaintiff for the amount of the notes. But the judge held, that the acknowledgment in writing that the notes were just demands, and the promise to pay them, did not restore vitality to the mortgage, by which the notes were secured, inasmuch as there was no reference made to the mortgage, in the acknowledgment and promise to pay; and the judge refused to make a decree for the foreclosure of the mortgage, or to adjudge that the mortgage was a valid and subsisting security for the debt due upon the notes. To test the correctness of this judgment, the plaintiff prosecutes his writ of error.

Our attention has not been directed to any case, in which it has been decided, that the revival of the debt, by a new promise to pay it, will operate as a revival of a mortgage given to secure the debt, without words to that effect in the new promise. But we...