24 W. Va. 674 | W. Va. | 1884
Oliver Alkire executed to B,. P. Camden his bond for seven hundred and sixty-six dollars and eighty cents dated February 4, 1858, payable one year thereafter, and at the same
In pursuance of his said agreement with Alkire, on the 4th day of May, 1869, Butcher paid to R. P. Camden on said debt nine hundred and ninety-six dollars and sixty-one cents, and on June 26, 1877, Flora Camden, the administra-trix of R. P. Camden, then deceased, brought an action of debt in the county court of Lewis county against Oliver Alkire for the residue of said debt, in which action judgment was rendered on February 26, 1880, in favor of the plaintiff for four hundred and seventy-four dollars and four cents by the circuit court of said county to which court said action had been removed. Execution issued on this judgment and was returned “no property found.”
In August, 1877, Butcher died insolvent and J. FT. Camden, the trustee, having declined to execute the trust imposed by the aforesaid trust-deed to him, the said Flora Camden, as administratrix of R. P. Camden, deceased, on May 15, 1880, brought this suit in the circuit court ot Lewis county against said Alkire, Brown, J. 1ST. Camden, trustee, and the administratrix and heirs of said Butcher for the purpose of enforcing said trust-deed by a sale of said tract of one hundred and thirty-five acres of land in default of the payment of the unpaid balance of the said trust-debt. The
On March 18, 1882, Edwin Maxwell as special judge of the said court, sitting in this cause, “being of opinion that the right of the plaintiff to subject” the said land to the payment of said debt was “barred by the statute of limitations,” dismissed the bill with costs as to all the defendants except Alkire. From this decree the plaintiff has appealed to this Court.
It appears from the pleadings and proofs that, in May, 1863, the defendant, G. J. Butcher, went out of Lewis county to Augusta county, Virginia, within the Confederate military lines and continued within the lines of the Confederate army from that time until February, 1865, when he returned to Lewis county and resided there until his death in the year 1877.
The only question presented for our. decision is, whether or not the plaintiff’s right to relief against the said one hundred and thirty-five acres of land is barred by the statute of limitations or the lapse of time?
The right to enforce the lien of a mortgage or trust-deed being an equitable and not a legal remedy, the statute of limitations has no direct operation upon such right, but the general rule adopted by courts of equity in regard to the redemption or enforcement of mortgages is by analogy to the right of entry at láw, under .the old statute of limitations, 21 Jac. 1. c. 16, that twenty years’ possession by the mortgagor or mortgagee without any account or acknowledgment of a subsisting mortgage is a bar, unless the party who invokes the aid of the court is within some of the exceptions made for disabilities. In some of the States, in which the limitation of the right of entry on laud has been made by statute more or less than twenty years, following the analogy of those statutes, the time within which the mortgagor may redeem from the mortgagee in possession will be the same;
But in Virginia and this State this rule is not followed, and the period of twenty years has been adhered to, notwithstanding the time fixqcl by the statute for the entry on land is limited to less than twenty years. The rule in these States' and, perhaps others, seems to be, that such lapse of time affords evidence of a presumption that the mortgagor has abandoned his right, or, in case of a trust-deed, that the debt secured has been paid—Ross v. Norvell, 1 Wash. 14; Pitzer v. Burns, 7 W. Va. 63; Cook v. Finkler, 9 Mich. 131.
The possession of the mortgagee must be unequivocally adverse to the person entitled to the equity of redemption. But the fact that he entered with the consent of the owner does not prevent his possession from being adverse, unless in return he assumed .some obligation to the owner. The supposed relation of the mortgagor to the mortgagee, as his tenant is not allowed to operate against the presumption of payment arising from the mortgagor’s continued possession. After twenty years this presumption may be made even in chancery. The lapse of twenty years, without the payment of interest, or demand made, the mortgagor being in possession, will raise the presumption that the debt has been paid, but this presumption may be repelled by evidence of the relation and circumstances of the parties—1 Barton’s Chy. Pr. 115; Damorest v. Wynkoop, 3 Johns. Ch. 129; Stevens v. Dedham Institution, &c., 129 Mass. 547.
If the person seeking to enforce the right was under disability, the time of his disability is to be deducted, though he cannot avail himself of successive disabilities—Lamar v. Jones, 3 Har. & M. 32.
When, however, by the terms of the mortgage, or by subsequent agreement, the mortgagee is to take and hold possession, until he shall satisfy his claim from the rents, his possession does not become adverse until his demand has been satisfied from this source, or he asserts an absolute title
The mortgagee’s acknowledgment is Inn ding upon all who hold under him as lessees or otherwise—2 Jones on Mortg. § 1165. By commencing proceedings to foreclose the mortgage either by action or by advertisement, the mortgagee recognizes it as a subsisting lien and the mortgagor may thereafter within twenty years redeem. A verbal acknowledgment that the mortgage is a subsisting security is sufficient to prevent the possession from operating as a bar if the evidence be clear and unequivocal—2 Jones on Mortg. § 1171.
The presumption of payment which arises from the non-enforcement of a mortgage is not adopted as a fixed and positive limitation, but as an equitable rule and by an analogy to the old statute of limitations of 21 Jac. 1, c. 16. It may, therefore, require a longer or a shorter period to effect a bar. Twenty years is an absolute bar in the absence of any evidence or circumstances affecting the legal presumption of such bar. A payment of interest or part of the principal renews the mortgage, so that a suit may be brought to enforce it within twenty years after such payment. This is a rule universally recognized. And where there are several persons interested in the equity of redemption, such payment by any one of them keeps alive the right not only against him, but also against all other owners of the equity of redemption—Emory v. Keighan, 88 Ill. 482; Rodham v. Morley, 1 De. G. & J. 1; 2 Jones on Mortg. § 1198.
A purchaser assuming the payment of a mortgage recognizes it as a subsisting incumbrance, and cannot set up the lapse of time as a bar against it until twenty years from that time have elapsed. His grantee is also bound by such admission to the same extent that he was himself bound—Harrington v. Slade, 22 Barb. 161; Schmucker v. Sibert, 18 Kans. 104; 1 Jones on Mortg. § 744.
The mortgagor’s grantee has no greater rights against the mortgagee than the mortgagor himself. A purchaser with actual notice of the mortgage, or constructive notice by means of the registry of it, can avail himself of the presumption of payment from the lapse of time only when the mortgagor could avail himself of it under the same circumstances.
Though the debt be barred the lien may be enforced. The fact that a debt secured by a mortgage is barred by the statute of limitations does not as a general rule extinguish the mortgage security or prevent the enforcement of it by suit—Smith v. Washington City, &c., 33 Gratt. 617; Hanna v. Wilson, 3 Gratt. 243.
In equity a mortgage is always regarded merely as a security for the debt. The debt is the principal thing; an assignment of it carries with it the mortgage; and, therefore, so long as a recovery on the note or bond given for the debt is not barred, the right to enforce the lien of it created by the mortgage or trust-deed on the land continues and may be enforced by suit in equity. If by non-residence of the mortgagor time be deducted from the period of limitation, so that an action on the debt is not barred, neither is a suit to foreclose the mortgage barred—Clinton Co. v. Cox, 37 Iowa 570; Emory v. Keighan, 94 Ill. 543; Hale v. Pack, 10 W. Va. 145; Tingle v. Fisher, 20 Id. 497; McClintic v. Wise, 25 Gratt. 448.
The foregoing principles in regard to mortgages apply equally to trust-deeds. 'A trust-deed to secure a debt is in legal effect a mortgage—Eaton v. Whiting, 3 Pick. 484. It is a conveyance made to a person other than the creditor with a power of sale if the debt is not paid as agreed. Such a deed has all the essentials of a mortgage; it is a'conveyance of land as a security for a debt. It passes the legal title to the grantee just as a mortgage does. Both instruments
In the light of the foregoing doctrines it is apparent that the right of the plaintiff'to enforce the lien of the trust-deed in the case at bar against the trust-property in the possession of the defendant, Brown, was not barred at the time this suit was commenced. It is not pretended that the debt was barred by the statute of limitations. The bond for the debt became due in February, 1859, and the action at law having been instituted on it in June, 1877, less than nineteen years after its maturity, the time sufficient to raise the presumption of payment had not then elapsed. And, moreover, in May, 1869, only-eleven years before this suit- was commenced, Butcher, the vendee of Alkire, the grantor in the trust-deed, who had assumed to pay off this, debt, paid on it the sum of nine hundred and ninety-six dollars and sixty-one cents. This payment was a recognition not only of the debt, but likewise of the existence of the trust-deed on the land; and, consequently, there could arise no presumption of payment from the lapse of time until twenty years had expired after that date. And Butcher, being also the vendor of the defendant Brown, the latter can stand in no better position than Butcher as to gaining title by possession and the lapse of time to the land conveyed by the trust-deed which -was duly recorded before his purchase. The registration of the
Reversed. Remanded.