Roberts v. Lawrence

• Decision Date: 31 May 1885
• Citation: 16 Bradw. 453,16 Ill.App. 453
• Parties: F. L. ROBERTS, Adm'r,v.JOHN LAWRENCE ET AL.
• Court: United States Appellate Court of Illinois

16 Ill.App. 453

16 Bradw. 453

F. L. ROBERTS, Adm'r,

v.JOHN LAWRENCE ET AL.

Appellate Court of Illinois, Second District.

May Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. J. V. EUSTACE, Judge, presiding. Opinion filed May 23, 1885.

Messrs. MANAHAN & WARD, for appellant; that the mortgage remains as security for the debts secured thereby, whatever changes may subsequently be made in the form of such indebtedness, cited Flower v. Ellwood, 66 Ill. 446; Worcester Nat. Bk. v. Cheeney, 87 Ill. 603; Darst v. Bates, 95 Ill. 493; Wyman v. Cochrane, 35 Ill. 155.

A decree for the payment of money on the foreclosure of a mortgage is substantially of the same effect as a judgment at law: Eames v. Germania, 74 Ill. 56; R. S. 1845, § 14, p. 95; R. S. 1874, § 44, p. 203.

The merger of a note in a judgment does not extinguish the debt, and the mortgage continues the lien until it is satisfied or the judgment is barred by the Statute of Limitations: Hendershott v. Ping, 24 Ia. 134; Tousey v. Cook, 116 Mass. 163; Priest v. Wheelock, 58 Ill. 114; Darst v. Bates, 51 Ill. 439; Hamilton v. Quimby, 46 Ill. 90; Applegate v. Mason, 13 Ind. 75; Peck's Appeal, 31 Conn. 215; Emory v. Keighan, 88 Ill. 485.

Mr. J. E. MCPHERRAN, for appellee; that when an action upon a note is barred by the statute no foreclosure can be had of a mortgage given to secure its payment, cited March v. Mayers, 85 Ill. 177.

A bar of the statute at law forms a bar in equity, and equity follows the law in allowing the Statute of Limitations as a defense: Pollock v. Maison, 41 Ill. 516; Locke v. Caldwell, 91 Ill. 417.

PLEASANTS, P. J.

On August 16, 1859, David C. Cushman and Eliza, his wife, executed to Edward H. Kirk a mortgage of lot 9, in block 60, of the town of Sterling (the title to which and five others, together constituting their homestead, was in said Eliza), to secure a note of said David of that date for one hundred dollars, due in two years, with interest at eight per cent. per annum, which was duly recorded on the 18th day of the same month.

On May 27, 1865, said Kirk having died and the note remaining unpaid, his administratrix obtained against the mortgagors, upon personal service of process, a decree of foreclosure, finding the amount then due and directing the master, in default of its payment by the time therein limited, to sell said lot, saving to Mrs. Cushman the proper porportion of her homestead interest therein.

The decree was never executed, but was sold and assigned by the administratrix, under authority, to pay in part a debt of the estate to Sarah T. Roberts, appellant's decedent.

On June 12, 18?? Mrs. Cushman, then a widow, executed a mortgage of the six lots referred to for the purpose of securing a debt of $890.92 to James D. Bingham.

November 20, 1879, after the death of Mrs. Cushman, Mrs. Roberts filed the bill herein against the Cushman heirs and said Bingham, to carry her said decree into effect and foreclose the mortgage upon which it had been rendered.

In May, 1881, the executor of Bingham, then deceased, also filed a bill against said heirs to foreclose the mortgage made to him, but without making Mrs. Roberts a party and under the decree thereon the master made sale of said six lots, his certificate of which was assigned to appellee Lawrence, who obtained a deed in pursuance thereof.

Pending the proceedings upon the bill Mrs. Roberts died, and appellant, her administratrix, was substituted as complainant. Appellee alone contested her right to the relief sought, on the sole ground that the lien of the former decree having been lost by neglect to issue execution thereon within a year (Eames v. Germania Turn Verein, 74 Ill. 54), and the original note barred by the Statute of Limitations, the mortgage itself was also barred. The Circuit Court sustaining this defense dismissed the bill, and complainant appealed.

To recapitulate: the mortgage note became due in August, 1861, the decree was made in May, 1865, and this bill was filed in November, 1879. The question is whether at the time last mentioned the mortgage was barred by the Statute of Limitations.

It is settled that when a debt, which is the principal, is extinguished, discharged, or barred by limitation, the security, which is the incident, is involved in the same fate; and the debt is barred when there is no competent evidence to show it a subsisting liability within the period of the statute next before suit is brought. But it is as well settled that no mere change in the form or evidence of the debt, as to a renewal note or to a judgment, will discharge or impair the...