Tracy Loan & Trust Co. v. Luke
| Decision Date | 13 July 1928 |
| Docket Number | 4704 |
| Citation | 72 Utah 231,269 P. 780 |
| Parties | TRACY LOAN & TRUST CO. v. LUKE et al |
| Court | Utah Supreme Court |
Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.
Suit by the Tracy Loan & Trust Company against Nellie Luke and others. From a part of a mortgage foreclosure decree directing a sale of the named defendant's inchoate interest in her husband's property and foreclosing her equity of redemption, she appeals.
AFFIRMED.
S. P Armstrong, of Salt Lake City, for appellant.
Powers Riter & Cowan, of Salt Lake City, for respondent.
The plaintiff brought this suit to foreclose a mortgage on a tract of land situated in Salt Lake City, Salt Lake county, Utah. The facts are not in dispute. On March 15, 1909, Christian Nielson and his wife, Sarah E. Nielson, executed and delivered to the plaintiff a promissory note for the sum of $ 1,300, payable on March 1, 1914. To secure the payment of the $ 1,300 note, the Nielsons executed and delivered to the plaintiff a mortgage upon the property involved in this controversy. On October 20, 1910, the Nielsons conveyed the mortgaged premises, subject to the mortgage, to the defendants Francis G. Luke and Alice G. Luke. On December 1, 1917, the defendant Francis G. Luke and his wife, Nellie, and Alice G. Luke executed and delivered to the plaintiff a note for $ 1,300 and a mortgage on the property involved in this proceeding to secure the payment of said note. The note matured on December 1, 1920. The note and mortgage so executed and delivered to the plaintiff by the defendants Francis G. Luke, Nellie Luke, his wife, and Alice G. Luke were so executed and delivered to renew the note and mortgage executed and delivered to the plaintiff by the Nielsons under date of March 15, 1909. On December 31, 1917, Francis G. Luke and Nellie Luke, his wife, conveyed their interest in the mortgaged premises to Alice G. Luke. On January 2, 1918, Alice G. Luke conveyed the mortgaged premises to Francis G. Luke. On December 1, 1920, the defendant Francis G. Luke and Alice G. Luke executed and delivered to the plaintiff a note for $ 1,300 and a mortgage on the real estate hereinbefore mentioned to secure the payment of said note. The note and mortgage so executed and delivered to the plaintiff by the defendant Francis G. Luke and Alice G. Luke were so executed and delivered to renew the note and mortgage executed and delivered to the plaintiff by defendant Francis G. Luke and Nellie Luke, his wife, and Alice G. Luke under date of December 1, 1917. On December 1,1923, the defendants Francis G. Luke and Alice G. Luke executed and delivered to the plaintiff a note for $ 1,300 and a mortgage on the real estate involved in this controversy to secure the payment of said note. The note and mortgage so executed and delivered to the plaintiff by the defendants Francis G. Luke and Alice G. Luke were so executed and delivered to renew the note and mortgage executed and delivered to the plaintiff by the defendants Francis G. Luke and Alice G. Luke under date of December 1, 1920.
The defendant Nellie Luke is the wife of Francis G. Luke, and was his wife when the notes and mortgages were executed and delivered by her husband. It will be observed that Nellie Luke did not join her husband in the execution of the renewal note and mortgage dated December 1, 1920, or the renewal note and mortgage executed December 1, 1923.
The decree of foreclosure does not give the plaintiff any personal or deficiency judgment against the defendant Nellie Luke. The defendant Nellie Luke alone prosecutes this appeal from that part of the decree of foreclosure which directs that her inchoate interest in her husband's property be sold to satisfy the mortgage lien and that she be forever barred and foreclosed of and from all equity of redemption and claim of, in, and to the mortgaged premises and every part and parcel thereof from and after the delivery of the sheriff's deed.
This appeal is on the judgment roll. The sole question to be determined on this appeal is whether or not the inchoate claim of Nellie Luke, as the wife of Francis G. Luke, in and to the mortgaged premises, is inferior and subject to the lien of the plaintiff. It is appellant's contention that her plea of the statute of limitations is a complete defense to the note signed by her under date of December 1, 1917. This note matured on December 1, 1920. No claim is made that Nellie Luke made any payments on the note signed by her, or that she, by an instrument in writing or otherwise, acknowledged any liability on such note after the same was executed. This action was begun on April 23, 1927, more than six years after the maturity of the note. It is appellant's further contention that a mortgage given to secure a note is a mere incident to such note; that, when an action upon the note became barred by the statute of limitations as to the appellant, so likewise the lien upon the real property given to secure and note became barred. In support of these contentions, appellant cites and relies upon the following cases: Law v. Spence, 5 Idaho 244, 48 P. 282; McLane v. Allison et al., 7 Kan. App. 263, 53 P. 781; McGovney v. Gwillim, 16 Colo. App. 284, 65 P. 346; Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Hendricks v. Brooks, 80 Kan....
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Alston v. Bitely
...was a mortgagee, suspending the running of the statute, so that the relinquishment of dower remains effective. Tracy Loan & Trust Co. v. Luke, 72 Utah 231, 269 P. 780 (1928); 2 Jones on Mortgages, Eighth Edition (1928), 1032 et seq., § 1536. In spite of the fact that I. T. Alston's extensio......