Brown v. Hayes, 146 Mich. 474

Brown v. Hayes

146 Mich. 474 | Mich. | 1906

Montgomery, J.

This is a bill filed to foreclose a mortgage given to secure a note, of which defendants (husband and wife) were joint makers,' dated June 19, 1879, due three years after date. The mortgage and note were given to Delemere Brown, who died in May, 1902. The complainant has succeeded to the rights of the mortgagee.

The defense of the statute of limitations is obviously good, unless by payments made and indorsed on the mortgage or note the obligation has been kept alive. Indorsements appear to have been made from time to time, but the evidence to connect the defendants with the payments which the indorsements purport to record is wanting, except in one instance. One indorsement, of November 9, 1894, was as follows: “Received on within 26 sheep, $45.50” — and was, we are convinced, made in the presence of Richard Hayes, and evidences an actual transaction with him. The circuit judge was not satisfied that the evidence was sufficient to show that the payment was made by the authority of Mary Hayes, and on the authority of Curtiss v. Perry, 126 Mich. 600, held that the payment by Mr. -Hayes did not prevent the running of the statute of limitations against Mrs. Hayes. It should be said that the circuit judge was in no way in fault in construing the case of Curtiss v. Perry as he did. An examination of the record and briefs in that case shows that both parties assumed that section 9745, 3 Comp. Laws, was a general provision limiting the effect of the payment by one of two joint debtors, as it should affect the running of the statute of limitations in all cases. The court ap*476pears to have adopted this concession. Section 9745 is, however, limited in its terms to cases arising under chapter 268. See Perkins v. Cheney, 114 Mich. 567, where an entirely analogous provision was considered, and it was held that, as to a case not covered by that chapter, the rules of the common law would prevail.

At the common law, according to the weight of authority, a payment by one jointly bound was, unless the statute established a contrary rule, sufficient to prevent the running of the statute. The leading case is Whitcomb v. Whiting, 2 Doug. 652. This was followed in Wyatt v. Hobson, 8 Bing. 309. Which latter case was cited by Mr. Justice Cooley in Mainzinger v. Mohr, 41 Mich. 685, as establishing the common-law rule first enunciated in Whitcomb v. Whiting. These cases were cited as establishing the rule in Cross v. Allen, 141 U. S. 528. The rule, as there stated, is that, where part payment is made before the statute has run, that payment keeps the debt alive, both as against the payor and his co-obligor or surety as well. The statute of limitations as to mortgage foreclosures reads as follows:

“No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall become due and payable, or within fifteen years after the last payment was made on said mortgage. ” * * * Section 9725.

Fifteen years have not elapsed since the last payment was made on this mortgage. As this statute contains no provision restricting the effect of a payment by one of two joint debtors or by the principal debtor, the rule in Whitcomb v. Whiting must be applied, and foreclosure decreed.

It is so ordered.

Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred.