Wilson v. Pickering
| Decision Date | 22 June 1903 |
| Citation | 72 P. 821,28 Mont. 435 |
| Parties | WILSON v. PICKERING et al. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Broadwater County; F. K Armstrong, Judge.
Action by E. T. Wilson, as receiver of the First National Bank of Helena, against John G. Pickering and others. From a judgment granting insufficient relief, plaintiff appeals. Reversed.
This case was tried on an agreed statement of facts, from which it appears that on December 11, 1885, defendant John G Pickering executed and delivered to the First National Bank of Helena his promissory note for the sum of $9,902.06, due six months after date, with interest at the rate of 1 1/4 per cent. per month after maturity until paid. At the same time the defendant John G. Pickering and Hannah Pickering, his wife, executed and delivered to the bank their certain mortgage on the real estate therein described as "additional security to secure the payment of $3,000" of this note. On December 20, 1886, defendant John G. Pickering executed and delivered to said bank his promissory note for the sum of $10,068.59, due in one year with interest at the rate of 1 1/4 per cent. per month from date until paid. On January 20, 1888, defendant John G Pickering executed and delivered to said bank his promissory note for the sum of $1,510.20, due in one year, with interest at the rate of 1 1/4 per cent. per month after maturity until paid. At the date of the last-named note the defendants Pickering (and his wife) executed to the bank a mortgage on certain other real estate, conditioned for the payment of the last two named notes. At the time this last mortgage was executed, defendants were asked by the bank to execute a new mortgage covering the property described in the first mortgage to secure the $3,000 included in the renewal indebtedness. This the defendants declined to do, and the defendant John G. Pickering then told the bank to commence foreclosure proceedings on the mortgage executed December 11, 1885. On February 8, 1890, the defendant John G. Pickering, without the knowledge or consent of the defendant Hannah Pickering, executed and delivered to the bank his promissory note for the sum of $13,509,58, due one year after date, with interest at the rate of 1 per cent. per month after date until paid. Subsequently, and on the 12th day of April, 1895, one T. H. Kleinschmidt and Mary M. Kleinschmidt, his wife, "with the consent and by and under the direction of the said John G. Pickering, and for the further and additional security for the payment of the last-named note, executed and delivered to the bank" a deed to certain real estate, the title to which said T. H. Kleinschmidt then held in trust for defendant John G. Pickering. Defendant John G. Pickering paid on the last-named note the sum of $1,642.10 as principal, and the further sum of $1,621.20 as interest. It further appears that the original indebtedness of $9,902.06 was, with the interest, carried along and included in the several notes subsequently executed, and that the $3,000 to secure the payment of which the first mortgage was executed was included in and constituted a part of the sum due plaintiff at the time suit was commenced. On December 27, 1897, at the time this action was commenced, it was admitted that there was due plaintiff from defendant John G. Pickering the sum of $11,867.48, with interest thereon at the rate of 12 per cent. per annum from February 7, 1891. Plaintiff asked for judgment for this amount, that the deed from Kleinschmidt to the bank be declared a mortgage, and for the foreclosure of all the mortgages named in the complaint, and the sale of the premises therein described. The defendants interposed the plea of the statute of limitations as to the mortgage executed December 11, 1885, and denied that it was the intention that the renewal of the notes should operate as a renewal of the former mortgage liens. At the trial the court found plaintiff to be entitled to the relief demanded, except as to the foreclosure of the mortgage dated December 11, 1885, which was found to be barred by the statute of limitations. Judgment was entered in accordance with the findings, and from the judgment so entered plaintiff appeals.
C. B. Nolan, for appellant.
C. H. Baldwin and J. H. Shober, for respondents.
POORMAN C. (after stating the facts).
1. The only question presented for consideration on this appeal is whether the court erred in holding that the mortgage dated December 11, 1885, was barred by the statutes of limitation at the time of the commencement of this suit. The period prescribed by the statute at the time the right of action accrued on the note described in that mortgage was six years. This note fell due June 11, 1886, and the right of action thereon was barred June 11, 1892, unless extended by some means or agreement outside of the instrument itself. The act of 1889 (Sess. Laws 1889, p. 172) extended the period within which action might be brought on a written instrument to eight years, but expressly provided that the act should not affect causes of action which has accrued prior to its passage. The right of action on this first note having accrued prior to that time, it was not effected by this act; and, the statute of limitation having fully run, unless tolled, prior to the time when the Codes of 1895 took effect, the status of the case is not affected by the Codes. First Div. Comp. St. 1887, § 42; Sess. Laws 1889, p. 172; Code Civ. Proc. §§ 512, 557, 3456; Pol. Code, § 9; Sherman v. Nason, 25 Mont. 283, 64 P. 768; Guiterman v. Wishon, 21 Mont. 458, 54 P. 566. The last case cited further decides that the statute of limitation does not confer a vested right, to that extent modifying the decision in Gillette v. Hibbard, 3 Mont. 417, by establishing the doctrine that limitation acts affect the remedy and not the right.
2. Counsel for respondent contends that the provisions of section 3842 of the Civil Code apply to this case. That section provides that a mortgage "can be created renewed...
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