155 Iowa 217 | Iowa | 1912
Lead Opinion
At some time prior to the year 1874, Timothy Fitzgerald became the owner of the land in ques
This action was instituted August 25, 1904, to obtain a decree canceling the mortgage .of record as being barred by the statute of limitations and unenforceable against the plaintiff. It is also alleged that the mortgage debt has been paid. In answer defendant denies that the mortgage debt is barred, alleges that it has been revived from time to time by new promises and new acknowledgments of indebtedness, and by way of cross-bill he asked that the lien may be enforced for the payment of said debt. To avoid the plea of statute of limitations to his cross-bill the defendant
From this statement it will be seen that the note which the mortgage was given to secure was due March 8, 1883, and that it was barred by the statute of limitations ten years after that date, to wit, March 8, 1893. This action was commenced August 25, 1901, and action on either note or mortgage was barred at that time, unless, as defendant and appellant claims, the obligation 'was renewed by acknowledgment or a new promise to pay or the plaintiff for a good consideration promised to pay the debt and thus continued it in force. An action either on the note or mortgage must, under the laws of this state, be brought within ten years from the time the cause of action accrued. It is a general rule that, if there be no debt, there is no mort
In some of these states the rule does not apply if the mortgage itself contains a covenant to pay the debt; in others it applies only as between the holder of the mortgage and the original mortgagor; and in still others exceptions
Of course, no judgment can be obtained against the original mortgagor, and no personal judgment against his grantee, unless he assumed and agreed to pay the debt.
The present holder of the legal title is the only necessary party to the foreclosure, and his land may be taken
In such cases, even though there be no assumption of the debt, the property is conveyed subject to the mortgage, and is the primary fund from which it should be paid. McConihe v. Fales, 107 N. Y. 404 (14 N. E. 285); Crawford v. Nimmons, 180 Ill. 143 (54 N. E. 209); Comstock v. Hitt, 37 Ill. 542; Howard v. Robbins, 170 N. Y. 498 (63 N. E. 530); Savings Bank v. Grant, 41 Mich. 101 (2 N. W. 1); Dickason v. Williams, 129 Mass. 182 (37 Am. Rep. 316); Wadsworth v. Lyon, 93 N. Y. 201 (45 Am. Rep. 190); Johnson v. Lasker Co., 2 Tex. Civ. App. 494 (21 S. W. 961). The mortgagor remains the debtor and the land is simply security for the debt, and the same rule applies as where the purchase is expressly made subject to the mortgage. Fuller v. Hunt, 48 Iowa, 163; Moore v. Olive, 114 Iowa, 650.
Having this right, it is optional with the grantee whether or not he will interpose such a plea, and it is not for his grantor to complain. If he has the right to interpose the plea, it logically follows that he should be allowed to waive the statute, which is one of repose in his. behalf, and we think that a grantee from a mortgagor of real estate, the mortgage being of record and a prior lien upon the land, may waive the statute of limitations after action brought, or revive the cause of action before suit is commenced, as provided in section 3456 of the Code. Indeed, this seems to have been the holding of all courts where the question has arisen, no matter what their view as to the effect of the statute in general. See Heyer v. Pruyn, 7 Paige (N. Y.) 465 (34 Am. Dec. 355); Moore v. Clark, 40 N. J. Eq. 152); Shaw v. Land Co. (Tex. Civ. App.) 62 S. W. 941; Daniels v. Johnson, 129 Cal. 415 (61 Pac. 1107, 79 Am. St. Rep. 123); Foster v. Bowles, 138 Cal. 346 (71 Pac. 494); Clayton v. Watkins, 19 Tex. Civ. App. 133 (47 S. W. 810); Hughes v. Edwards, 9 Wheat. 490 (6 L. Ed. 142); McLane v. Allison, 60 Kan. 441 (56 Pac. 747); Longstreet v. Brown (N. J. Ch.) 37 Atl. 56; Howard v. Windom, 86 Tex. 560 (26 S. W. 483); Neosho Valley v. Huston, 61 Kan. 859 (59 Pac. 643).
Had the conveyance in this case been made ‘subject to the mortgage,7 the rule above quoted would be applicable, and would be decisive against the defendant in error.
In Foster’s case, supra, it is said:
Indeed, an acknowledgment of the mortgage was an acknowledgment of the indebtedness secured thereby. It was not necessary that respondents should promise to pay the indebtedness in order to establish a new date for the statute to commence running as to the mortgage. All that was required was a plain and distinct acknowledgement in writing of the existence of the mortgage. Concannon v.
And in Longstreet’s case the court of Chancery of New Jersey said:
The equitable -liability of Mr. Dayton’s lands to relieve the defendant compay’s lands should therefore be considered as sufficient in equity to make the payment by Mr. Dayton to the mortgagee in 1879 a payment for the. benefit and on account of the defendant, and at.its request, and one which the mortgagee .was entitled to receive as protecting her lien up to that time upon all the lands subject to her mortgage. So far as this payment is concerned, the. defendant company has no right to insist that, as against the mortgagee, its lands shall ■ be considered in equity as if the payment had not been made, and as if its lands were at the time of the payment held adversely to the mortgagee. The subsequent .purchaser’s discharge of his equitable 'obligations to the defendant to pay the mortgagee, and thus relieve the defendant’s lands,' can not on any equitable ground be made the basis of barring the mortgagee’s rights against defendant’s lands on the theory that the payment was not made in relief of defendant’s lands; for the defendant’s equitable right to require the primary payment of the lien by the subsequent purchaser carried with it all obligations and admissions necessarily arising from the payment by him as a payment made pursuant to an equitable status -created by 'defendant’s consent, and therefore it must be treated as an acknowledgement of the debt on the part of all those for whom or for whose benefit it was, in equity, .to be considered a payment by reason of this equitable status. See 2 Jones, Mort. section 1198, and cases cited.
The reference to Jones on Mortgages in this last citation is quite appropos. . In Palmer v. Butler, 36 Iowa, 576, we cited some of these cases with approval, although the
There is some testimony of an agreement to pay the mortgage debt at the time the deed was executed, and the letters set out and the other testimony tends to show that the plaintiff recognized the debt as his own or the debt of himself and his brother, and that, they were under an obligation to pay the same. Indeed, there seems to have been no other consideration for the deed save love and affection. But we need not definitely decide this proposition now.
And such a promise is not within the statute of frauds. Barker v. Guilliam, 5 Iowa, 510; Schaafs v. Wentz, 100 Iowa, 708, and Page on Contracts, section 614; Carraher v. Allen, 112 Iowa, 168, Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29 (5 Am. Dec. 317); French v. French, 84 Iowa, 655. Appellee insists, however, that there is no testimony showing that the letters relied upon were signed by plaintiff or by his authority. It is true that plaintiff denied having written these letters, but the testimony sufficiently shows, as we think, that they were either written by him or by his authority.
Plaintiff claims that certain payments have been made upon the mortgage indebtedness, for which no credit has been given. The burden was upon him to- establish the claim, and in this we think he failed.
Our conclusion on the whole record is that the decree is wrong. We shall not undertake to ascertain the amount due upon the note, and shall remand the cause that this may be ascertained, and a proper decree' of foreclosure entered. Reversed and remanded.
Dissenting Opinion
(dissenting). — Had the majority been content to reverse the decree below on the ground which is intimated near the close of its opinion, that 'plaintiff took the title to the land from his father under an express or implied agreement to assume and pay the mortgage debt, I should burden the record with no dissent. Such conclusion, though in my opinion without the slightest support in the record, would satisfy that primitive sense of justice, which looks with disfavor upon the statutory city of refuge erected for the relief of delinquent debtors, and the decision being made to turn upon a' mere question of fact. A decision based thereon could háve been announced without any discussion of doubtful propositions of law, and without in any manner disturbing legal or equitable rules which have hitherto had the uniform and unquestioned adherence of this court. That the discussion indulged in does open the door to doubts and uncertainties which Will hereafter return to embarrass the court and work the abandonment of well-setttled principles I am fully persuaded.
I. Thát' under the ancient conception of the effect
The statement of the majority that, where land is conveyed subject to a mortgage, such land is the primary fund from which the debt should be paid, that the mortgagor is the debtor and the land conveyed “is simply security for the debt,” and that the grantee of the legal title may plead the bar of the statute, is not open to dispute, but it leads not a step nearer the conclusion finally announced, but rather in the opposite direction. The further proposition that the grantee of mortgaged lands may waive the benefit of the statute is equally indisputable. There are very few rights secured by law to the litigant which he may not waive. But, immediately following this' proposition and in apparent sup
So limited, the mortgage would remain enforceable simply because he who assumed to pay the debt having waived the defense of the statute a right of action exists thereon, and because the debt remains an enforceable demand the lien given to secure it may also be enforced. If not so limited, and we are to hold that the mortgage may
Upon the general merits of the case, I am strongly of the opinion that, while the plaintiff’s petition to quiet his title might well have been denied, the defendant’s cross-petition for foreclosure of the mortgage was rightfully dismissed as being barred by the statute of limitations, and as being" wholly unsupported by any competent evidence that the mortgage debt was ever assumed by the plaintiff. In short, I think the decree below should be affirmed.
