20 Neb. 124 | Neb. | 1886
This action was brought in the district court of Johnson county to foreclose a mortgage on real estate for a debt evidenced by four promissory notes alike in date, amount, parties,'and effect, except the time of maturity, being due in two, three, four, and five .years after date. The following is a copy of one of said notes:
“ $35.00. " Tecumseh, Neb., December 14th,' 1872.
“ Two years after date, for value received, I promise to pay to the order of P. D. Cheney, thirty-five dollars, at bank of Russell & Holmes, without interest before maturity, with twelve per cent per annum after maturity.”
“ O. D. Woodruff.”
The defendant answered the petition, admitting the execution of the notes and mortgage, but alleging that the notes were given for usurious interest, which is admitted, and pleading that the action is barred by the statute of limitations. On the trial of the cause the court below refused to receive the notes in evidence, and found the issues in favor of the defendant and dismissed the action. The plaintiff appeals.
The testimony shows that the.plaintiff purchased the notes in question in May, 1874, and that he had no notice of the usurious consideration. He is entitled to maintain the action therefore unless it is barred by the statute of limitations.
In Hale v. Christy, 8 Neb., 264; it was held by a majority of the court that an action to foreclose a mortgage upon real estate may be brought at any time within ten years after the cause of action accrued. The writer filed a dissenting opinion in that case, but the rule having been established by a majority of the court, and as it affects property rights, it will be adhered to. If a change is desired, it must be made by the legislature and not by the court. As the action was brought within ten years from the maturity of the first note the action is not barfed.
It is claimed, however, that the notes are barred, and are not now evidence of the debt, and that therefore, although the plaintiff purchased the notes before due, that an action on the notes being barred, the equities between the defendant and P. D. Cheney may now be set up, and therefore the defense of usury is available, and a remark in Cheney v. Cooper, 14 Neb., 419, that “As the statute would run against the note in five years, it is probable that after the expiration of that time the remedy would be
The former statute limited the time within which an action to foreclose a mortgage could be brought to five years, that being the period when the debt would be barred. In construing the statute of 1869, therefore, we must consider the old law, the mischief and the remedy; that is, the law as it existed when the act of 1869 was passed, what the evi-1 was for which the former statute did not provide, and the remedy the legislature by the act of 1869 has provided to cure the evil, and so to construe the act as to suppress the evil and advance the remedy. 1 Blackstone Com., 87. Rogers v. Omaha Hotel Co., 4 Neb., 58. It is apparent that the object of the legislature in passing the act in question was to extend the period of limitation on mortgages to ten years — that is, that the mortgage may be foreclosed at any time within ten years to enforce the payment of the debt by a sale of the mortgaged property. This necessarily makes the debt the basis of the action of foreclosure, and it may, where there has been no change
The decree of the court below is reversed, and a decree will be entered in this court for the amount due in the premises.
Decree accordingly.