109 P. 234 | Okla. | 1910
On April 22, 1907, W. W. Grant, defendant in error, sued Samuel J. Scott and Eva M. Scott in the district court of Pottawatomie county on a promissory note and to foreclose a mortgage on certain real estate in Tecumseh to secure the same, made, executed, and delivered to him by them on May 22, 1904. He alleged in his petition that Mamie H. Clark and W. W. Coleman, plaintiffs in error, and Marie L. King claimed some interest in the mortgaged property inferior to his mortgage lien *399 and made them also parties defendant. All defendants defaulted except Clark and Coleman, who answered, pleaded the statutes of limitations, set up their respective liens and sought to have them declared superior to that of plaintiff. At the close of the testimony defendants demurred to the evidence, which was overruled and verdict and judgment rendered for plaintiff. Defendants bring the case here, and assign that the court erred in overruling their demurrer because they say the evidence discloses plaintiff's debt was barred prior to the time their liens accrued. The note sued on is dated Tecumseh, Okla. T., May 22, 1894, and thereby defendants S. J. Scott and Eva M. Scott "jointly and severally promise to pay to W. W. Grant, or order, $500 at Whit M. Grant's office, Ok. City, with interest thereon at the rate of 12 per cent. per annum payable semiannually from date until paid," etc. Indorsed thereon is: "Nov. 22-94, Int. to date Pd. $30. Int. Pd. to May 22-95, $30. Int. Pd. to Nov. 22-95, $30. Int. Pd. May 22-96, $30. Int. Pd. Nov. 22-96, $30. Int. Pd. to May 22-97, $30. Dec. 1, 1903, paid acct. Int. $3.60. Dec. 21, 1905, paid acct. Int. $3.85." Plaintiff concedes that had nothing intervened between the payment of interest evidenced by the credit on May 22, 1897, and the time of suit, the note would have been barred, but insists that the payment of $3.60 interest, as evidenced by the indorsement of December 1, 1903, raised the bar and revived the debt and with it his mortgage lien. He relies on the Statutes of Oklahoma 1903, § 4222, which reads:
"In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment, or promise must be in writing, signed by the party to be charged thereby."
Construing this statute the Supreme Court of Kansas has repeatedly held such payment, after the bar has fallen, to revive a mortgage note and with it the lien of the mortgage.Capital Co. *400 v. Merriman,
In Childs v. Thompson, supra, the court said:
"When the bar of the statute is complete, any act of the mortgagor which revives the debt, also revives the lien of the mortgage, unless the parties agree otherwise. N.Y. Life Ins. Trust Co. v. Covert, 29 Barb. [N.Y.] 435; Schmucker v. Sibert,
In Schmucker v. Sibert, supra, the court in the syllabus said:
"Where a note and mortgage are once barred, a subsequent revivor of the note by part payment, promise, or acknowledgment of the payor, will revive the mortgage so far as it affects the interest of the payor in the mortgaged premises. But such revivor of the note will not revive the mortgage as against a grantee of the mortgagor, or any other parties who have acquired interests in the mortgaged premises prior to the revivor of the note. Hubbard v. Ins. Co.,
Hubbard v. Mo. Val., etc., Ins. Co., supra, was an action on a promissory note and to foreclose a mortgage. The facts were that on October 1, 1869, John M. Price, executed a note and mortgage to defendant in error for $1,500 due one year from date. He paid the interest thereon as the same became due up to April 1, 1872. On May 16, 1877, in a settlement with said company *401 he received another credit thereon. The suit was against his grantees of the mortgaged property. They pleaded the statutes of limitations on the debt. There was judgment against them in the trial court, and on this point, in reversing the case, the Supreme Court said:
"It will be seen that no payment was made on the $1,500 note and mortgage (the instruments sued on in this action) from April 1, 1872, until May 16, 1877. This was more than five years. The note and mortgage were therefore absolutely barred by the five-year statute of limitations when this last payment was made. Civ. Code, § 18, subd. 1. This case will therefore come within the decision of this court made in the case ofSchmucker v. Sibert,
And in the syllabus said:
"Where a note and mortgage have become barred by the statute of limitations, the payee thereof may revive the debt by part payment or otherwise, as against himself, but he cannot revive the note and mortgage as against a third person to whom he has sold and conveyed the mortgaged property."
This is in line with the weight of authority.
In MacMillan v. Clements,
"It is the law that a payment upon a note secured by mortgage *402
is sufficient to take the note out of the operation of the statute of limitation, will have a like effect upon the mortgage, and, so long as any part of the debt remains unpaid, and not barred, the lien of the mortgage continues unimpared.Bottles v. Miller,
See, also, 20 Cyc. 1394, and cases cited.
We are therefore of opinion that the credit of $3.60 interest indorsed on the note December 1, 1903, revived not only the note, but the mortgage, and from that time rendered it a valid and and subsisting security superior to the rights of the subsequent judgment lienors, parties defendant herein, and that the trial court did not err in so holding.
We are not unmindful of Wood v. Goodfellow,
"We are aware of the fact that in some states a distinction is drawn between the note and mortgage, and that a foreclosure of the latter may be barred even when a recovery on the note is not. And this in states such as California, where the note is the principal thing, and the mortgage only a security for the note."
In so holding he doubtless was mindful of the holding of the court in Waterson v. Kirkwood,
"If the decision in the case of Wood v. Goodfellow,
It is not necessary to notice other questions raised. The judgment of the trial court is affirmed.
All the Justices concur, except WILLIAMS, J., not participating.