Austin v. Wilson

46 Iowa 362 | Iowa | 1877

Adams, J.

1. adverse £ondSfor11: deed. This action was commenced in May, 1876. Can it be said that the cause of action had accrued ten years prior thereto? In other words, had Wilson wrongfully withheld the possession for ten yearsprior thereto? We think not. The bond provides that “ Wilson is authorized to take possession, subject to the conditions of the bond.” One of the conditions was that plaintiff might, if defendant made default, declare the bond forfeited, and declare defendant his tenant at will. By this we understand that the parties provided that, notwithstanding defendant should make default, he should at least have the rights of a tenant at will, and be allowed thirty days after notice in which to quit. The bond was not declared forfeited, and no notice to quit was served until March, 1876, and we cannot think that a cause of action accrued to plaintiff, to recover possession, until after that time.

2.-stat-tions. The defendant claims, however, that more than ten years having elapsed since the last note matured it must be presumed that the notes have been paid. If the notes have been really paid that would doubtless constitute a good defense to plaintiff’s action, but it should, we think, be set up by way of equitable answer. The legal title is in the plaintiff. The defendant is certainly in default unless the notes have been paid. His right of possession'under the agreement would be terminated by the notice. Not having the legal title he could rely upon nothing but his equity, and of that of course only a court of equity could take cognizance.

3. —:-. But suppose he had filed an equitable answer, and set up payment therein. Would proof that the notes were barred by the statute, be sufficient to sustain affirmatively the averment of payment? We think not. If that were so, a debt which is barred would be regarded as extinguished; but such is not the law. A creditor whose debt is barred has still au insurable interest. This was so held in Rawls v. American Mutual Insurance Company, 27 N. Y., 282.

The court said: “The debt was not extinguished as in case of payment. It might be renewed by a new promise, and indeed without such promise be enforced by action unless the defense of the statute was directly interposed.” See, also, Penley v. Waterhouse, 3 Iowa, 418.

The title of Sarah L. Wilson is, we think, not better than that of her husband would have been had the execution sale not taken place. The title of record being in the plaintiff, the said Phelps bought subject to his rights. The non-assertion of his rights could not, as defendant claims, be considered as an abandonment so long as the circumstances were such that the statute had not even commenced to run.

The defendant claims that he has paid a large portion of the notes; that in 1862 the plaintiff left the State and has not returned, and that he was unable to ascertain where he was, or to pay the balance of the notes until after service of notice that the bond and notes were canceled. If such were the facts, they would constitute strong equitable considerations upon any question which might arise as to whether defendant should be relieved from the effects of his default.

It is proper that we should say, that while upon the record the plaintiff appears to be entitled to the possession of the property, we express no opinion as to the defendants’ equitable rights.

Reversed.