148 Mich. 496 | Mich. | 1907
George and Jane Clinton being husband and wife, the latter filed a bill for divorce, in the course of which proceeding they made a written agreement relating to their property rights. He conveyed to her the home for her life, to be held by her for the use and benefit of herself and their children as a home. He reserved a life estate in himself in the event o£ his surviving his wife, with remainder to the children after the termination of the life estates, unless he should survive all, when the fee would revert to him. There was a mortgage upon the premises at the time, and he agreed that he would pay it within two years, and have the premises discharged from it, the amount of the mortgage being $225 and interest, and if, in the “meantime," Jane should make any payments of principal or interest thereon, or procure any other person to do so, she or such other person should be subrogated to the right of the mortgagee, or have a lien corresponding to the amount so paid, as security, and to assure the final payment of said principal and interest in full “by the party of the first part.” The mortgage and
George Clinton is said to have died on October 15, 1904. Thereupon Mrs. Clinton filed this claim against his estate to obtain reimbursement for the amount of the mortgage and interest, or at least the amount of her payments. The claim was disallowed by the commissioners on claims, but on appeal it was allowed by direction of the circuit judge, the jury finding the sum of $267 for money paid by the claimant and $94.15 for interest, a total of $361.15. The court had previously overruled a motion to direct a verdict for the defendant based upon the claim that, while the claimant’s testimony showed she paid money to Withington, such payments were not shown to have been made upon the mortgage in furtherance of any understanding with Withington, but only that she expected that it was so paid, and therefore did not establish her claim under the provisions of the agreement, and, further, that the statute of limitations (3 Comp. Laws, § 9375) is a bar to this claim. It is contended (1) that the agreement did not create a personal liability on the part of the deceased to pay this mortgage; (2) that by its terms the right to subrogation depended upon payment made by complainant within two years after the date of the agreement; (3) that, if there were ever a valid claim in personam, it is barred by the statute of limitations.
Had there been no such promise, there was still the obligation to pay the mortgage, and any party in interest might pay it, and be subrogated to the rights of the mortgagee. The mortgage was executed by both George and Jane Clinton, contained an express promise to pay $225 and interest, and was under seal, as also was the separation agreement. Therefore the statute had not run until 10 years had expired. See 3 Comp. Laws, § 9734, and note. The mortgage was dated in June, 1882, payable in 'three years, the separation agreement in November, 1886. George Clinton died October 15,1904. The personal obligation under the mortgage became barred in June, 1895, that under the separation contract in November, 1898, unless the running of the statute was arrested, and there is no evidence that it was arrested by any act of the deceased.
It is contended that payments made by Mrs. Clinton had the effect of extending the statutory period, she being a joint promisor in the mortgage, but this is ruled otherwise in the case of Home Life-Ins. Co. v. Elwell, 111 Mich. 689, and cases cited.
It is said in the appellee’s brief that the right of action did not accrue until after the payment of the mortgage by claimant. We have already said, and it can hardly be questioned, that the right of action for the breach of this contract accrued at the expiration of two years, when the breach occurred. What other promise was there made in that contract? None except that, if she should choose to pay within the two years, she might have a lien on the land, for the payments, by way of subrogation, which she would have had without such provision if she chose to take an assignment of the mortgage, and perhaps without it. But that does not justify the treatment of such a payment as creating a personal obligation to pay such
What her rights may be as to foreclosure of the mortgage, under the doctrine of subrogation, need not be considered, as they are not before us.
The order is reversed, and a new trial is ordered.
