Rowe v. Mulvane

• Citation: 25 Colo.App. 502,139 P. 1041
• Parties: ROWE v. MULVANE.
• Decision Date: 11 February 1914
• Court: Colorado Court of Appeals

139 P. 1041

25 Colo.App. 502

ROWE v. MULVANE.

Court of Appeals of Colorado

February 11, 1914

Rehearing Denied April 13, 1914

Error to District Court, Prowers County; Henry Hunter, Judge.

Suit by John R. Mulvane against Jennie D. Rowe. Decree in favor of plaintiff, and defendant brings error. Reversed and remanded with instructions.

Merrill & McCarty, of Lamar, for plaintiff in error.

H.L Lubers, of Denver, for defendant in error.

KING J.

March 2, 1910, defendant in error, as plaintiff, filed his complaint, in the nature of a bill in equity, in which the relief prayed for was that an accounting be had to find the amount due upon a certain promissory note, and that the court appoint a substitute trustee with power to perform the duties imposed and exercise the powers and authority conferred by a certain deed of trust, to the end that the said substituted trustee proceed under the terms and provisions of said deed of trust to make sale of the property described therein, in order to make collection in full of the principal and interest of said note, with costs of foreclosure.

The relief prayed for was predicated upon allegations in substance as follows: That some years prior to his death defendant's husband, her grantor, had executed a promissory note for the principal sum of $425, payable November 1, 1893, with interest, and, to secure the payment of said indebtedness, executed a certain deed of trust, covering certain lands in Bent county, in which deed the Colorado Loan & Trust Company (a Colorado corporation), was trustee, and the acting sheriff of Arapahoe county, Colo., was successor in trust, and the place of sale, in case of foreclosure, was the Tremont street door of the courthouse in said county of Arapahoe; that the principal of said note had not been paid, nor any interest since the maturity of said note; that the corporate life of the primary trustee had expired by limitation, whereby it was unable to execute the powers conferred upon it by said deed of trust; and that by an amendment to the Constitution of Colorado, whereby the county of Arapahoe was abolished and the city and county of Denver established, the successor in trust named therein was disqualified, and unable to exercise the powers conferred by said deed of trust; that there is no longer a place designated as "the Tremont street door of the courthouse in the county of Arapahoe, state of Colorado."

As a defense to the foregoing complaint, defendant pleaded: First, that the cause of action mentioned in the complaint did not accrue within six years; and, second, that said cause of action did not accrue within five years, before the commencement of this action. Upon motion of the plaintiff, the court rendered judgment on the pleadings in his favor, by which it was ordered and decreed: "That Hamilton Armstrong, present acting sheriff of the city and county of Denver, Colorado, is hereby appointed substitute trustee for the purpose of carrying out all of the objects and purposes of said trust, by advertising for sale the property according to the tenor and effect of the authority of said deed of trust conferred on said trustee; and that the sale shall be noticed to take place at the Tremont street door of the courthouse in the city and county of Denver, Colorado."

I. The question presented for determination is whether the action brought by plaintiff was barred by the provisions of the two statutes of limitation pleaded, or either of them; it being conceded by the motion for judgment on the pleadings that the action was brought more than six years after the cause of action accrued.

It is settled law in this state that the six-year statute of limitations does not operate as a bar to proceedings for the foreclosure of a deed of trust, when foreclosure is made by advertisement and sale by the trustee named in the deed of trust, without the aid or intervention of a court proceeding; that such proceedings are not an "action" within the provisions of our statute, which reads: "The following actions shall be commenced within six years, next after the cause of action shall accrue, and not afterwards." Section 4061, Rev.Stats.1908; section 4627, Mills' Ann.Stats.1912; Holmquist v. Gilbert, 41 Colo. 113, 92 P. 232, 14 L.R.A. (N.S.) 479; Foot v. Burr, 41 Colo. 192, 92 P. 236, 13 L.R.A. (N.S.) 1210.

It is also settled law in this state that, if an action or suit is prosecuted to foreclose a mortgage or deed of trust, such action is barred by the said statute of limitations if an action upon the note or for the collection of the debt secured by said mortgage or deed of trust is barred by said statute. McGovney v. Gwillim, 16 Colo.App. 284, 65 P. 346. In the last case cited it is also ruled that, when the statute after the lapse of time bars an action upon the debt for its collection, it includes all actions seeking to effectuate that purpose. In that case it was laid down as a fundamental principle that, while a party may avoid the bar of the statute of limitations by adhering strictly to his remedy under the power of sale in manner and form as provided by the deed of trust without the aid of a court proceeding, yet, if for any reason he elect to avail himself of the advantages to be derived from an "action" or suit, he must at the same time accept its disadvantages; that he cannot invoke the benefit of a personal action having for its ultimate purpose the collection of the debt, by adding to, correcting, completing, or enforcing the provisions of an instrument in writing by which the debt is secured, without at the same time waiving his exemption from the provisions of the statute of limitations pertaining to such actions. This same principle was announced by Chief Justice Hallett in Longan v. Carpenter, 1 Colo. 205, 217, and by the Supreme Court of the United States in Carpenter v. Longan, 16 Wall. 271, 21 L.Ed. 313, in which it was said that a promissory note or debt and the instrument by which it is secured are inseparable; that the security accompanies the indebtedness through all hands, and ultimately shares the same fate. See, also, Denver B. & M. Co. v. McAllister, 6 Colo. 261, 263. The unavoidable conclusion to be drawn from McGovney v. Gwillim is that, whenever the deed of trust given as security for a debt has been brought within the jurisdiction of a court by the cestui que trust for remedial purposes in order to collect the debt, it becomes at once subject to the law affecting remedies for the collection of the debt itself, to which the security is but an incident. That question is stare decisis, and controlling, at least upon this court.

Counsel for defendant in error contends that the decision in McGovney v. Gwillim, as interpreted by the Supreme Court in Holmquist v. Gilbert, is not applicable to the facts of this case because, as counsel says, all that was decided by the...