Fox v. Bernard

29 Nev. 127 | Nev. | 1906

Lead Opinion

By the Court,

Talbot, J.:

On February 18,1893, the plaintiff loaned $400 to William Bernard, now deceased, and to secure the payment thereof he deeded to plaintiff on that day the lands described in the complaint, and at the same time plaintiff executed to him a bond for a deed whereby he agreed to reconvey the property on or before February 18, 1898, provided that he was paid on or before that date $400, and also $36 annually. On February 8, 1896, plaintiff loaned Bernard the additional sum of $600, and accepted as security for $1,000 and interest the deed made to plaintiff at the time the $400 was borrowed, and by release made in writing, acknowledged and recorded, Bernard then relieved him from all obligations resulting from the bond made February 18, 1893, and thereupon plaintiff executed to Bernard a new bond, dated February 8, 1896, conditioned that plaintiff would make and deliver a good and sufficient conveyance of the property to Bernard, provided plaintiff were paid $1,000 on or before January 1, 1900, and also $90 annually, and further provisioned that if Bernard paid these amounts and the taxes he would be entitled to the use and possession of the premises. A receipt and the statement or admission of Bernard a short time before his death indicate that the only payments were on interest to the 8th day of February, 1897. He died the following year and letters testamentary were issued to his widow, Mrs. Harriet Bernard, who has since married C. J. Orth. Plaintiff’s demand arising out of the above transactions was presented' against the estate, and by her as executrix was rejected on August 29, 1898. There is testimony indicating that she had previously recognized the demand by endeavoring to borrow money for its payment. On July 24,1901, the property was set over to her by decree of distribution. From a judgment decreeing the deed to plaintiff to be a mortgage, and ordering a foreclosure and sale of the premises to satisfy the amount, $1,731.25, and $76.40 costs, found due to plaintiff, she appeals.

The well-settled doctrine, that a deed executed merely for the purpose of securing a debt will be construed as a mortgage, is not assailed, but for appellant it is contended that as suit was not brought until April, 1904, more than six years after the last loan and the giving of the last bond on February 8, 1896, and more than four years after the time, January .1, 1900, fixed for a conveyance thereunder conditioned on payment, the action is barred. by the statute of limitations. It is said that by executing a written release of the first bond and accepting a new one in its stead, at the time he borrowed the last amount, $600, Bernard did not sign any writing agreeing to pay or acknowledging a debt, and that therefore the obligation to pay on his part was merely verbal and would be barred in four years. We do not so view that transaction. Most instruments in daily use, such. as deeds, mortgages, notes, orders, drafts, and checks, are signed by only one of the parties, but are not, for that reason, verbal, nor half verbal. Although Bernard executed no note or writing agreeing to pay any money, be signed a deed absolute in terms conveying the property to plaintiff, and by this suit and 'the decree no more is sought than he, under his signature, obligated himself to yield. In equity the extension of the time for a reconveyance by plaintiff, given by the surrender of the first bond, and the execution of a new one ought to be considered as effective as if plaintiff had conveyed the propérty to Bernard, and taken a new deed from him, which would have left the title in plaintiff as it now stands. It was not necessary .to have these extra deeds, and if they had been executed th.ey would not have varied the time for bringing suit, and the initiation of the running of the statute which was controlled by the last bond, and the date therein fixed and extended for payment and reconveyance. Plaintiff is fortified with a writing for all that is awarded him by the judgment and for more if the property is worth more. The loan and giving of the security, which vary the unconditional terms of the deed, and which are shown verbally, are facts favorable to appellant which it would have been incumbent upon her to prove if plaintiff had sued in ejectment for the property and introduced the deed. The bringing of the action four years and four months after January 1, 1900, the time fixed in the last bond for a reconveyance condition on payment, was not too late.

It is also urged that suit was not begun within the time required by the provisions of the probate act after the rejection of the claim by the executrix. Whether this is so is immaterial, for, although she as executrix-is named as a party defendant, the allegations of the complaint and the decree may be considered as running against the property only. No judgment for any deficiency after sale or otherwise against the estate is demanded or given by the decree, which is directed only against the premises, and plaintiff's rights to this extent would not be curtailed nor affected by failure to present a claim to the executrix, nor by her rejection of the claim filed, nor by his omission to sue within the time prescribed for commencing actions on rejected claims against estates of deceased persons, as is necessary when it is desired to reach the assets of the estate.

In Cookes v. Culbertson, 9 Nev. 207, as here, a deed was given as security for a loan which was not evidenced in writing. It was said in the opinion: " The remedy upon the debt is barred by the statute, but the debt was not thereby extinguished; and as the statute of limitations of this state applies to suits in equity as well as actions at law, the creditors could have enforced payment by foreclosure of the mortgage within four years after the cause of action accrued. He had two remedies, one upon the debt, the other upon the mortgage; by losing one he does not necessarily lose the other.” Since the rendition of that decision the time for commencing actions on written instruments has been extended from four to six years, and under well-recognized principles plaintiff was allowed that length of time after the date fixed for payment of the $1,000 and for the termination of the bond or a reconveyance, which was January 1, 1900.

As said in Borden v. Clow, 21 Nev. 278, 30 Pac. 822, 37 Am. St. Rep. 511, "It is a rule in regard to the statute of limitations that the statute begins to run when the debt is due and, an action can be instituted upon it.” Under the argument for appellant the four years from the final loan on February 8,1896, to the time for payment of the $1,000 under the bond of January 1, 1900, would be deducted from the six years allowed for bringing suit, and on that theory if the maturity of the loan had been more than six years, instead of four, plaintiff's cause of action would have, been barred before it accrued.

The judgment of the district court is affirmed.

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Rehearing

On Rehearing.

By the Court:

Petition for rehearing denied.