Crawford v. Taylor, Richards & Burden, 42 Iowa 260

Crawford v. Taylor, Richards & Burden

42 Iowa 260 | Iowa | 1875

Miller, Ch. J.

I. This case comes here for tidal de novo on the evidence and the law applicable thereto. Plaintiff’s theory of the case is that the conveyance executed by Ilenry Crawford, his grantor, to John W. Taylor, was in legal contemplation *263a mortgage; that having purchased and received a conveyance of the land from ITenry Crawford, he, the plaintiff, has a right to redeem the same from the mortgage by the payment of the debt which it was given to secure.

i. mortgage: absolute deed. "We are of opinion from the evidence that said deed from plaintiff’s grantor.to John W. Taylor was made secure the loan alleged in plaintiff’s petition. Being given and intended as security for a loan the deed, though absolute in form, was and remains in law a mortgage, to which the right of redemption attached. Trucks v. Lindsey, 18 Iowa, 508; Green v. Turner, 38 Id., 112; Richardson v. Barrick, 16 Id., 417; Hughes et al. v. Sheaff, 19 Id., 335; Key v. McCleary, 25 Id., 191, and cases cited; Wilson v. Patrick, 34 Id., 362.

*2642.--: ad-sUmeposses *263II. The plaintiff’s right to maintain the action to redeem is clear unless it is barred by the statute of limitations. Defendants have pleaded the bar of the statute, and they insist thereon in argument. From the evidence before us we find that the mortgage debt was due and payable April 18, 1858; that no part thereof has been paid, and that this action was commenced on the 18th day of January, 1872, thus showing a period of nearly fourteen years between the maturity of the mortgage debt and the commencement of this action. It is conceded by counsel on both sides that the defendants could not maintain an action on the note to recover the debt, and that an action to foreclose is barred, the right to foreclose being barred in ten years from the maturity of the mortgage. Newman v. DeLorimer, 19 Iowa, 244; Gower v. Winchester, 33 Id., 303. It is also held in the case last cited that the right of the mortgagor to redeem is barred in the same time (ten years) that will bar the right to foreclose; that the right to redeem is based upon the same instrument as the right to foreclose; that the one is of no higher character than the other, and that the question of possession has no influence upon the statute of limitations in this respect. If the mortgagee fails to foreclose until after ten years from the maturity of the mortgage — the time when his right of action accrued — he is barred of his action irrespec*264tive of whether he or the mortgagor has been hi possession. If the mortgagor remains in possession, such possession is consistent with and not adverse to the rights of the mortgagee; and if the mortgagee be in possession, such possession will not be held adverse until the mortgage has been paid off. Green v. Turner, supra.

3__. re_ statute oí iimnations. Tlie statute bars the right of action to foreclose in ten years. So, also, the right of action to redeem is barred in ^ie same time, unless there has been a revivor of rjgbt in the maimer specified in the statute, wliicb is not claimed in this case. The plaintiff not having brought bis action until nearly fourteen years after bis right to do so accrued, it is barred by the statute. The decree of the court below must be

Reversed.