Hendershott v. Ping, 24 Iowa 134

Hendershott v. Ping

24 Iowa 134 | Iowa | 1867

Lead Opinion

Cole, J.

1. judqment men: expires in ten years, Judgments are, by our statute, made liens upon the real estate of the judgment debtor, situated in the county where they are rendered, or at- , , _ _ tested copies thereof are hied, lhe lien attaches from the date of rendition or filing. Kev. §§ 4105, 4108. It is further provided by statute (Eev. § 4109), “ The liens above authorized continue in force for the term of ten years only, from the date of the judgment.” It is clear, from the language of the statute, that whatever lien Worster, Templin & Co. acquired, by virtue of their judgment, was lost or ceased to be a lien after ten years from the date of its rendition. The lien, being given by statute, could continue no longer than the statute declares it shall continue.

2. _ noYmeifeat" judgment. But the lien acquired by the mortgage, was the result of the contract between the parties. The lien of the mortgage was independent of and prior to the judgment. It in no manner de*137pended upon the judgment for its existence. The judgment did not merge the lien of the mortgage, but was simply a means of effectuating and enforcing that lien. The judgment did merge the mortgage debt; but a merger of the debt, or any change of the evidence of it, as by giving a note for the account secured by mortgage, by renewal of note, giving bond or other thing, short of payment, does not destroy the lien of the mortgage — that continues until the debt is paid or discharged.

3. limitation, moS|eOT: foreclosure, By our statute of limitations, suits founded on written contracts and for the recovery of real property, must be brought within ten years. Rev. § 2740, subdivision 4. This statute has been held to apply to suits for the foreclosure of mortgages, as well as to suits upon notes. Newman v. De Lorimer et al., 19 Iowa, 244. But these provisions do not apply when from the answer or testimony of the debtor, it appears affirmatively, that the cause of action still justly subsists. Rev. § 2742.

But by Revision, section 2740, subdivision 5, actions founded on a judgment of a court of record, may be brought within twenty years, and by section 3246, executions may issue at any time before the judgment is barred by the statute of limitations. An execution, therefore, may now be issued upon the judgment rendered on the mortgage debt. The mortgage debt is not averred to have been paid; nor is it barred by the statute. While the lien, acquired by virtue of \h& judgment, may have ceased at the end of ten years; yet the lien acquired by the mortgage continues until the mortgage debt is paid or discharged. Since there is no averment by plaintiff, that the mortgage debt is paid, nor any presumption of payment arising from lapse of time or the statute of limitations, it follows that the lien of the mortgage still exists.

Concurrence Opinion

Dillon, Ch. J., and Beck, J.,

concur in the conclusion

reached herein, but do not wish to be understood as expressing any opinion as to whether a judgment in a foreclosure case is a lien upon any other than the mortgaged property; or whether the limitation of ten years for the continuance of a judgment lien applies to the judgment in a foreclosure case. Nor do the other members of the court regard either of these questions as decided herein.

4. DBMTiimEzi: “"stain general one. The petition in this case sets out two judgments — one of foreclosure, and the other an ordinary judgment. As to the latter, the mere lapse of time annihilates the lien, and shows conclusively the right of the plaintiff to the relief demanded as against it. The demurrer was sustained by the District Court as to the whole petition. This was error, to the extent of the claim for relief, as to the last mentioned judgment, and for this the judgment is

Reversed.