265 S.W. 763 | Tex. App. | 1924
This suit was instituted by the First National Bank of Alvarado, Tex., plaintiff in error, against S. L. Lane individually and as guardian of his minor children, defendants in error, to recover on a promissory note and foreclose a deed of trust lien to secure the same, given to said bank by said Lane in his individual capacity. The defendant pleaded limitation. The parties will be designated as in the trial court.
Upon the trial the case was by consent of both parties withdrawn from the jury and submitted to the court. Judgment was rendered by the court in favor of plaintiff for the sum of $3,623.13, but the court refused to foreclose the lien on the ground that the same "was barred by the statute of limitation of four years at the time of and prior to the filing of plaintiff's suit and because said lien had ceased to exist at the date of the filing of plaintiff's suit." Plaintiff has brought said judgment to this court for review by writ of error.
Defendant Lane, on July 16, 1916, for a valuable consideration, executed and delivered to plaintiff his promissory note, bearing said date and due January 1, 1917, for the sum of $2,500, with interest and attorney's fees as therein stipulated. To secure the payment of said note, defendant, on July 19, 1916, executed and delivered to plaintiff a deed of trust on the real estate described in the pleadings and judgment in this case. This deed of trust was shortly after its execution duly recorded in the mortgage records of Johnson county, in which county the lands here involved are situated. Defendant paid the interest on said note to July 1, 1920, but he never paid any part of the principal. On the 2d day of February, 1921, plaintiff and defendant entered into a written agreement as follows:
"Know all men by these presents: That whereas, heretofore, on July 19, 1916, S. L. Lane executed to W. C. Glasgow, trustee, a certain deed of trust to secure payment of a certain note of even date therewith for $2,500.00, executed by S. L. Lane to the First National Bank of Alvarado, Texas, which said deed of trust is recorded in Volume 73, page *764 259, of the Mortgage Records of Johnson County, Texas, said note being secured by a lien on property described in said deed of trust, reference to which instrument is here made for further description.
"Now therefore, in consideration of the sum of one ($1.00) dollar and other good and valuable consideration to each party hereto paid by the other, the receipt of which is hereby mutually acknowledged and confessed, we, the said S. L. Lane and the First National Bank of Alvarado, Texas, do hereby mutually agree that the time for the payment of the principal of said note shall be and the same is hereby extended for a period of four years from the date of the maturity thereof as at present expressed in said note and said deed of trust, each party hereto mutually agreeing and covenanting with the other that all of the other terms of said note and said deed of trust, except the maturity date thereof, shall be and remain as before; and the said S. L. Lane does hereby acknowledge that he is indebted to the said First National Bank in the amount of the indebtedness hereinabove described and that he will pay the same and that the bank shall have and retain all of the rights, liens and equities conferred on it by said note and deed of trust.
"Signed at Alvarado, Texas, on this 2d day of February, 1921, the signature of the First National Bank of Alvarado, Texas, being affixed hereunto by B. M. Sansom, its president, duly authorized thereunto, with corporate seal attached.
"S. L. Lane.
"First National Bank of Alvarado, Texas,
"By B. M. Sansom, its President. [Seal.]
"Attest: E. L. Shelton, Cashier."
This agreement was duly acknowledged by both parties on the day of its execution and was on the 4th day of February, 1921, filed for record in the office of the county clerk of Johnson county, and thereafter duly recorded. No further payments were made. This suit was instituted September 25, 1922.
The note sued on, according to its terms, became barred by the four years' statute of limitation on January 1, 1921, and the recorded lien became barred at the same time. That the above agreement of February 2, 1921, was a valid revival of the debt evidenced thereby and removed the bar of limitation then existing against the enforcement of the same as a personal obligation is not questioned. A personal judgment was rendered thereon against the defendant in this suit and he has not complained. The only issue in the case is whether the said agreement revived the lien which was then barred by limitation, and by such revival rendered the same enforceable in this suit.
Defendant contends that this issue is determined against plaintiff and in favor of the judgment of the trial court refusing a foreclosure of such lien by the provisions of articles 5693, 5694, and 5695, Complete Texas Statutes 1920 (Vernon's Sayles' Ann.Civ.St. 1914, arts. 5693, 5694. 5695), and especially by that subdivision of said article 5695 which reads as follows:
"And provided that the owners of all notes secured by deeds of trust or other liens and the owners of all vendors' lien notes reserved in deeds of conveyance which were executed subsequent to July 14, 1905, shall have four years after this act takes effect within which they may obtain such recorded extension as herein provided for, or bring suit to enforce the liens securing them if same are valid obligations and not already barred by the four years' statutes of limitation when this act takes effect, and if such debt is not extended of record, or suit is not brought within such four years or four years after they mature, they shall be forever barred from the right to extend such debt of record, or bring suit to enforce the lien securing the same."
The subdivision of said article 5695 just quoted in terms applies to liens existing at the time of the enactment of said article, and such seems to be the construction placed thereon by the Supreme Court in Cathey v. Weaver,
"Art. 5693. No power of sale conferred by any deed of trust or any mortgage on real estate heretofore executed, or that may hereafter be executed, shall be enforced after the expiration of four years from the maturity of the indebtedness secured thereby, and any sale under such power after the expiration of such time shall be void, and such sale may be enjoined and the lien created in such mortgages or deeds of trust shall cease to exist four years after the maturity of the debt secured thereby. * * *"
"Art. 5696. When the date of maturity of either debt referred to in either of the foregoing articles is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance by the party or parties obligated to pay such indebtedness as extended and filed for record in the county clerk's office in the county in which the land is situated, the lien shall continue and be in force until four years after maturity of the notes as provided in such extension, the same as in the original contract and the lien shall so continue for any succeeding or additional extension so made *765 and recorded The date of maturity set forth in the deed of conveyance or deed of trust or mortgage or the recorded renewal and extension of the same shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned. * * * "
Said three articles above referred to, when construed together, were intended by the Legislature to cover the entire field of limitation as applied to sales of real estate under powers conferred by deeds of trust or mortgages and under decrees of foreclosure in the courts. They are primarily statutes of limitation, controlling the legal enforcement of such liens, whether such enforcement is attempted in or out of court. Cathey v. Weaver, supra; City of Laredo v. Salinas (Tex.Civ.App.)
In construing the provisions and effect of statutes of limitation, a distinction has been drawn between those which operate merely to bar enforcement of the right in court, and which thereby destroy the remedy only, and those which operate not only to bar the remedy but to also divest title or take away the right. Goldfrank v. Young,
The written agreement between the parties relied on to revive the lien in this case and to render the same enforceable in court not only imports a valuable consideration but recites such consideration in express terms. So far as such agreement operates to revive the lien sued on in favor of plaintiff against the defendant individually, we see no reason for holding it invalid or ineffective to support a judgment of foreclosure in this case. It seems to us that any other holding would be an arbitrary and unwarranted interference with the right of plaintiff and defendant to freely contract with reference to their respective properties. St. L. S.W. Ry. Co. v. Griffin,
This holding is limited, however, to such *766
interest, and to such interest only as the defendant had in the lands covered by the mortgage sued on at the time he joined in the execution of such contract of revival. The lien having once become barred, he could not by such action revive the same as against any interest his minor children had in said lands as heirs of their deceased mother, even if, as claimed by plaintiff, a part of the debt secured by said lien was for purchase money of one of the tracts of land. The rights of the children of the deceased wife became absolute when such lien became barred by the statute. Holford v. Patterson (Tex. Sup.)