Robertson v. Stuhlmiller

• Decision Date: 21 January 1895
• Citation: 93 Iowa 326,61 N.W. 986
• Parties: ROBERTSON v. STUHLMILLER ET AL.
• Court: Iowa Supreme Court

93 Iowa 326

61 N.W. 986

ROBERTSON

v.STUHLMILLER ET AL.

Supreme Court of Iowa.

Jan. 21, 1895.

Appeal from district court, Blackhawk county; J. L. Husted, Judge.

Action in equity to recover the amount due upon two promissory notes, and to foreclose a mortgage given to secure their payment. Demurrers to the petition were sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendants for costs. The plaintiff appeals. Reversed.Mullan & Pickett, for appellant.

Boies, Couch & Boies, for appellees.

ROBINSON, J.

The facts admitted by the demurrer are substantially as follows: On the 1st day of November, 1875, the plaintiff, being the owner of one-half of a lot in the city of Waterloo, in this state, sold and conveyed it to the defendant John Stuhlmiller, and, as a part of the purchase price, the latter made to the former two notes, of $500 each, one of which was payable in one year, and the other in two years, after its date, with interest at 10 per cent. per annum, payable annually. To secure the payment of the notes, Stuhlmiller and his wife executed to the plaintiff a mortgage on the premises sold, which was recorded on the day the notes were given. At the time of this transaction, Stuhlmiller was a resident of Waterloo, and he continued to be a resident of this state until 1883, when he moved to the territory of Dakota, and since that time he has not been a resident of this state. After the mortgage was given and recorded, one Jacob Coons became the owner of the mortgaged premises, subject to the lien of the mortgage; and on the 11th day of January, 1877, he sold the premises to the defendant Sybilla Chapman, and conveyed them to her by a warranty deed. Her name at that time was Fernbach, and the deed contained a provision as follows: “Said property is subject to the mortgage of Peter S. Robertson, on which there is due to date one thousand nineteen and twenty-five one-hundredth dollars, * * * which Sybilla Fernbach assumes and agrees to pay.” On the 1st day of January, 1880, Sybilla Fernbach conveyed the premises, by warranty deed, to Anselm Fernbach, and in that deed was inserted the following: “Said property is subject to a mortgage to Peter S. Robertson, upon which there is now due one thousand nineteen and twenty-five one-hundreths dollars, which A. Fernbach agrees to pay.” After the conveyance to Anselm Fernbach, in compliance with his agreement, he made payments of interest which was due on the mortgage debt from the year 1880, to and including the year 1888; and the payments, as they were made, were indorsed on the notes. On the 13th day of April, 1888, he paid to the plaintiff, to apply on the two notes, the sum of $150, one-half of which was indorsed on each note, as follows: “April 13, 1888. Received on interest $75.00. P. S. Robertson.” There is now due on the notes the sum of $1,974.54, with interest thereon at 10 per cent. per annum from the 31st day of May, 1892. The plaintiff asks a personal judgment for that amount against John Stuhlmiller and Mrs. Chapman, and that the mortgage be foreclosed, and that the premises be sold to satisfy the judgment. Personal service of the original notice was made on Stuhlmiller and his wife in the state of Missouri, but neither of them entered an appearance in the case. The defendant Maggie Fernbach, for herself and as administratrix of the estate of her late husband, Anselm Fernbach, deceased, and Mrs. Chapman, demurred to the petition, and the questions we are required to determine are those raised by the demurrers.

This action was commenced on the 1st day of June, 1892. The grounds of demurrers were that the petition showed that the cause of action was barred by the statute of limitations. That provides that actions founded on written contracts may be brought within 10 years after the causes of action accrue, and not afterwards. Code, § 2529, subd. 5. But it is also provided that “the time during which a defendant is a nonresident of the state shall not be included in computing any of the periods of limitations” specified in the statute. Id. § 2533. As Stuhlmiller has been a resident of this state less than eight years since he made the notes in controversy, an action thereon is not barred as against him. The mortgage was intended merely to secure the payment of the notes, and is an incident of the...