Turner v. Powell
| Decision Date | 12 June 1929 |
| Docket Number | 6483,6484. |
| Citation | 278 P. 512,85 Mont. 241 |
| Parties | TURNER v. POWELL et al. (two cases). |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.
Action by E. L. Turner against Charles E. Powell, Margaret Powell and Alfred Frank. Judgment for plaintiff, and defendants Powell and defendant Frank separately appeal. Reversed as to defendants Powell, and otherwise affirmed.
L. A Smith, of Butte, for appellants Powell.
R. F. Gaines, of Butte, for appellant Frank.
Francis A. Silver, of Helena, and George W. Howard, of Butte, for respondent.
On June 30, 1914, defendants Charles E. Powell and his wife, Margaret Powell, executed and delivered to Julia Mink their promissory note in the sum of $700, payable two years from date, and at the same time made, executed, and delivered a real estate mortgage to secure the payment of the note. On September 20, 1918, the mortgagors by deed conveyed the property covered by the mortgage to the defendant Alfred Frank, subject to the mortgage. On April 21, 1927, Julia Mink assigned the note and mortgage to plaintiff.
This action was brought on May 20, 1927, to recover judgment on the note and to foreclose the mortgage. The cause was tried to the court without a jury and judgment entered for the foreclosure of the mortgage and directing the entry of a deficiency judgment against the defendants Charles E. Powell and Margaret Powell after sale of the mortgaged property. The defendants Charles E. and Margaret Powell filed a joint appeal from the judgment, and the defendant Frank appealed separately. The same record is presented in both appeals, and the two will be considered in one opinion.
Appeal of Charles E. and Margaret Powell.
The defendants Charles E. and Margaret Powell in their answer to the complaint pleaded that the cause of action on the note as to them was barred by section 9029, Revised Codes of 1921. The record discloses that neither of these defendants made any payment on the note after September 20, 1918, the date of the transfer of the property by them to defendant Frank. Payments were made of interest accruing on the note up to May, 1926, by applying the rental from the property toward the payment thereof. This was done by John G. Bailey, manager or owner of the Bailey Loan & Realty Company, through whom the loan was originally made and who held the note as agent, first for Julia Mink, and later for plaintiff, and collected the rents. After paying expenses, such as water rent and commissions, the balance of the rental was applied by him toward the payment of interest on the note. These payments were made without the knowledge of Charles E. or Margaret Powell; they did not authorize or ratify the payments. Some payments were also made by remittances by check from defendant Alfred Frank, but no proof was offered showing when the last remittance was made.
It is well settled that partial payment of a past-due note by one joint obligor does not extend the time within which the action may be brought, as against the co-obligor who neither authorized nor ratified such payment. First National Bank of Miles City v. Bullard, 20 Mont. 118, 49 P. 658; Oleson v. Wilson, 20 Mont. 544, 52 P. 372, 63 Am. St. Rep. 639; Monidah Trust v. Kemper, 44 Mont. 1, 118 P. 811, Ann. Cas. 1912D, 1326; Morgan v. Huffman, 76 Mont. 396, 247 P. 326. Here the defendant Frank was not a joint obligor on the note, but evidently made the payments in order to prevent foreclosure of the mortgage. Neither the direct payments made by him nor the application of the rental toward the payments of interest, which was done without the knowledge or ratification of the defendants Charles E. and Margaret Powell, were effective to extend the time within which action against them could be brought on the note. Payments by the grantee of the mortgagor who takes the property subject to the mortgage do not arrest the running of the statute of limitations against the liability of the mortgagor on the note. Trustees of Old Alms House Farm of New Haven v. Smith, 52 Conn. 434; Home Life Ins. Co. v. Elwell, 111 Mich. 689, 70 N.W. 334; Empire Trust Co. v. Heinze, 242 N.Y. 475, 152 N.E. 266. The same rule prevails where the grantee assumes and agrees to pay the mortgage debt and makes payments thereon. Cottrell v. Shepherd, 86 Wis. 649, 57 N.W. 983, 39 Am. St. Rep. 919; Mack v. Anderson, 165 N.Y. 529, 59 N.E. 289; Regan v. Williams, 88 Mo.App. 577; Id., 185 Mo. 620, 84 S.W. 959, 105 Am. St. Rep. 600; Boughton v. Harder, 46 A.D. 352, 61 N.Y.S. 574; Dundee Mortgage & Trust Inv. Co. v. Horner, 30 Or. 558, 48 P. 175.
"No deficiency judgment or decree can be made in foreclosure proceedings where the debt secured by a mortgage is barred by the statute of limitations." 37 C.J. 704; and see 42 C.J. 290, and cases there cited; section 1545, Jones on Mortgages (8th Ed.).
The debt here involved, in so far as it affected the defendants Charles E. and Margaret Powell, was barred by the statute of limitations. It was error to award to plaintiff a deficiency judgment against the defendants Charles E. and Margaret Powell. The judgment as to them is reversed.
Appeal of defendant Frank.
The defendant Frank contends that the lien of the mortgage was not extended as provided in section 8267, Revised Codes of 1921. It is contended by him that the affidavit, filed on November 13, 1923, for the purpose of extending the lien of the mortgage, was fatally defective, and that it was filed prematurely. In the view we take of the case it is unnecessary to pass upon either of these contentions.
As between the mortgagor and mortgagee the mortgage lien is good so long as the debt is not barred by the statute of limitations, and no extension affidavit is necessary. ( Skillen v. Harris, 85 Mont. ----, 277 P. 803.)
The grantee of the mortgagor, taking the property subject to the mortgage and while the lien was valid and subsisting, stands in...
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