Talbott v. Hill

• Decision Date: 03 November 1919
• Docket Number: 3243.
• Citation: 261 F. 244
• Parties: TALBOTT v. HILL et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

261 F. 244

TALBOTT v. HILL et al.

No. 3243.

United States Court of Appeals, District of Columbia.

November 3, 1919

Submitted October 9, 1919.

Appeal from the Supreme Court of the District of Columbia.

E. L Wilson, of Washington, D.C., for appellant.

W. C Clephane, J. W. Latimer, and Gilbert L. Hall, all of Washington, D.C., for appellees.

SMYTH Chief Justice.

From a decree dismissing his bill in equity on the motion of the defendants, Hill and Claytor, Talbott appeals. According to the allegations of the bill, Talbott is the owner of two parcels of land in the District of Columbia. In 1896 One Bradley, who then owned the property, conveyed it to Hill and Deeble by deed of trust, which was duly recorded, to secure the payment of $8,000, represented by two notes, each payable in four years after date, with interest. The deed gave the usual power of sale in case of default. Deeble is dead, and Hill is the surviving trustee. By reason of the lapse of more than 15 years since the date of the deed, it is asserted that the right to enforce the same by sale of the property is barred by the statute of limitations, and that the deed constitutes a cloud upon the owner's title which he seeks to have removed by this proceeding. Recently the representative of the holder of the notes, Helen A. Claytor announced her purpose to order the surviving trustee to sell the real estate under the provisions of the deed for the purpose of paying the notes. The sale, it is said, would inflict serious loss, not only upon the holder of the notes but upon Talbott, who would thereby be subject to expense; that in any event the validity of the deed of trust is so greatly in doubt that no effective sale could be made otherwise than under a decree of court; and that because of the inclusion of a third parcel of land in the trust a situation has arisen requiring the marshaling of securities. Plaintiff prays, in the alternative, that the deed may be declared inoperative because of the running of the statute, and that Hill be enjoined from attempting to sell, and Claytor from ordering a sale, under the trust deed, or that the court, if it deems that the equities of the case require it, shall foreclose the trust deed and direct that the property be sold by a trustee appointed by the court. There is also a prayer for general relief.

The court entered a decree dismissing the bill unless the plaintiff obtained leave within a time limited to file an amended and supplemental bill. This he did not do, and the decree of dismissal was made final. After it had been entered, plaintiff filed a 'proposed amended and supplemental bill,' accompanied by a petition for rehearing. The petition was denied, and leave to file the bill refused. The supplemental bill contained no new statement of material facts, except that the interest on the notes secured by the deed of trust was paid by the plaintiff up to July 2, 1918, about a month before the bill was filed, which was on August 5th of that year.

There are 13 assignments of error, but appellant concedes that the controlling question is as to 'whether the deed of trust mentioned in these proceedings is barred by lapse of time. ' In his brief he admits that the payment of the interest upon the notes kept them alive as simple debts, but denies that this had the effect of tolling the statute of limitations with respect to the trust deed. He contends that the trust is barred, and hence that his title is sound. In other words, he bottoms his right to have the deed declared invalid and unenforceable upon the statute of limitations. But has that statute any application to this case? It says that 'no action shall be brought for the recovery of lands * * * after fifteen years from the time the right to maintain such action shall have accrued. * * * ' Code of Law, Sec. 1265. The action there referred to 'is the form of a suit given by law for the recovery of that which is one's due. ' Coke on Littleton, 285, 285a. It 'does not apply to a power of sale contained in a mortgage or deed of trust, when the deed is foreclosed, not in an action brought for that purpose, but simply by the mortgagee or trustee executing the power of sale. ' Cone v. Hyatt, 132 N.C. 810, 812, 44 S.E. 678. See, also, Menzel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am.St.Rep. 647; Stevens v. Osgood, 18 S.D. 247, 249, 100 N.W. 161; Kammann v. Barton, 26 S.D. 371, 373, 128 N.W. 329; Williams v. Armistead, 41 Tex.Civ.App. 35, 90 S.W. 925; Roberts v. True, 7 Cal.App. 379, 381, 94 P. 392; Rowe v. Mulvane, 25 Colo.App. 502, 139 P. 1041.

Hill and Claytor have brought no action. Therefore there is no action for the statute to operate against. They are simply seeking to exercise the power conferred upon the trustee, Hill, by the deed of trust. We do not think the statute of limitations controls them in any respect. To say that it did would be to read into it something which the Legislature did not place there.

Moreover the statute of limitations, as construed by this court (Hall v. District of Columbia, 47 App.D.C. 552), 'is a statute of repose, and not one of payment or cancellation. It is a bar to the remedy only, and does not extinguish or even impair the obligation of the debtor. ' Consequently, if the statute of limitations did prohibit the appellees from acting, it would still...