Schwertner v. Provident Mutual Building Loan Ass'n

• Decision Date: 17 May 1915
• Docket Number: Civil 1447
• Citation: 17 Ariz. 93,148 P. 910
• Parties: A. JOSEPH SCHWERTNER, as Guardian ad Litem of ALBERT SCHWERTNER, a Minor, Appellant v. PROVIDENT MUTUAL BUILDING-LOAN ASSOCIATION, Appellee
• Court: Arizona Supreme Court

148 P. 910

17 Ariz. 93

A. JOSEPH SCHWERTNER, as Guardian ad Litem of ALBERT SCHWERTNER, a Minor, Appellant v. PROVIDENT MUTUAL BUILDING-LOAN ASSOCIATION, Appellee

Civil No. 1447

Supreme Court of Arizona

May 17, 1915

APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge. Reversed and remanded, with directions.

Mr John C. Gung'l, for Appellant.

Mr. O Gibson, for Appellee.

OPINION

ROSS, C. J.

The appellees, as owners of a trust deed in the nature of a mortgage, were proceeding under the power of sale therein to advertise the mortgaged premises, the property of appellant's ward, for sale, when appellant filed his complaint with the court, praying that the appellees be enjoined from selling the property under the power of sale and assigned as reasons therefor, among others, that such a proceeding was unauthorized by law and was in violation of law, and that such a sale and a conveyance thereunder would create and cast a cloud upon the title of his ward. The appellees demurred to the complaint, which was sustained, and the complaint was dismissed.

Appellant assigns as error the ruling sustaining demurrer and judgment of dismissal.

At the time of this proceeding, December, 1914, paragraph 4113 of Civil Code of 1913, contained the law relied upon by appellant to sustain his contention. That paragraph reads:

"All mortgages of real property and all deeds of trust in the nature of mortgages shall, notwithstanding any provision contained in the mortgage, be foreclosed by action in a court of competent jurisdiction."

This is a remedial statute, and it is well settled that laws changing the remedy or substituting another and different remedy are valid, so long as they do not impair the obligation of contracts. 8 Cyc. 995; Andrade v. Andrade, 14 Ariz. 379, 128 P. 813; Steinfeld v. Neilsen, 15 Ariz. 424, 139 P. 879, 896.

The trust deed was executed in 1899, and, under the law as it then existed, the power of sale could be exercised by the trustee by advertising as herein undertaken (paragraphs 2358, 2359, Revised Statutes of 1887), and it is contended by appellees that any law that deprives them of pursuing that remedy impairs their contract.

The statute of limitations is not made an issue by the pleadings, except inferentially in this: That it is apparent from the face of the pleading that the trust deed was executed more than four years before this action was begun. The appellant relies for relief upon the proposition that since paragraph 4113, supra, became law, all mortgages and trust deeds in the nature of mortgages must be foreclosed in court. The appellees meet this contention in their answer by setting forth the judgment of this court in Provident Mutual Building-loan etc. v. Schwertner, 15 Ariz. 517, 140 P. 495, as res adjudicata. But in that case we simply decided that equity would not assist the grantee of the mortgagor by canceling upon his complaint an unpaid, outlawed mortgage, and thus remove a cloud upon his record title, upon the theory that the statute of limitations should be used as a shield and not as a sword. On the basis of that decision, if the appellees are now compelled to foreclose in court, the appellant could, if he so chose, interpose the statute as a bar; the mortgage being some ten years overdue.

The statute of limitations affects the remedy and not the cause of action. That the appellees, by failure to bring their action on the note secured by trust deed, opened the gate to the plea of the statute, there is no question. The same is true in an action to foreclose, but they contend they have a remedy in their power of sale that cannot be taken from them. This is a confession on their part that the statute has run, but, for want of an available remedy, the appellant's hands are tied. If the statute has actually run, and of that there is no question, all that paragraph 4113, supra, did, was to supply appellant a remedy by which he could avail himself of the bar.

The only case we have been able to find bearing directly upon the point involved is Scott v. District Court, 15 N.D. 259, 107 N.W. 61. That case involved the construction of a statute that provided that, if the mortgagor has a legal counterclaim or any other valid defense against the collection of...