Jamison v. Perry, 38 Iowa 14

Jamison v. Perry

38 Iowa 14 | Iowa | 1873

Lead Opinion

Cole, J.

The counsel in this case have argued two questions, as being the only questions involved in it. They are: First — Was the title claimed by the defendants under the mortgage foreclosure, barred by our statute of limitations, at the time of the conveyance by them to their grantee, W. A. Jordan? Second — Was the omission to affix a scroll to the record of certificate of acknowledgment, such a defect as that the record did not impart constructive notice of the rights of the mortgagees? The court below held that the second ques*17tion must be answered in the affirmative; and upon that answer based a like answer to the first question.

l. statute oe mortgage: adsion? posses We will consider the questions in their order, as above. It will be seen by reference to the facts found by the court, and set out in the statement preceding this opinion, that the five acres in controversy were sold by Bing, (who had before mortgaged the whole tract,) in October, 1856, to Walker and Tat-man, who took actual possession thereof under claim of title and ownership, and by themselves and grantees have continued that possession by actual residence thereon down to July 20th, 1869, when the defendants conveyed to Jordan, and to the present time. So that they had held actual adverse possession, under a claim ot title, tor nearly thirteen years, at the time the defendants conveyed. Our statute bars an action for the recovery of real property in ten years. Rev., § 2740.

But the defendants claim that the mortgage from which their title is derived was paramount to the title thus held adversely, and that the record afforded constructive notice of their paramount title. If this be granted, will it relieve them from the bar of the statute? The purpose of the statute is to give security and superiority to the inferior title, when it is fortified by such continued and actual adverse possession; and this, although the paramount or superior title may be of record, or its existence be in fact known to the owner of the inferior title who is thus in possession. Knowledge, by the actual possessor, of the existence of a paramount title, does not prevent the running of the statute in his favor; neither does a want of knowledge of such possession by the owner of the paramount title prevent the running, of the statute against him. It will be remembered that the possession began after the right of action to foreclose the mortgage accrued. Again, it is claimed that the paramount title was a mortgage, and because of this the statute would not run until its foreclosure. But if the adverse possession was such as to toll the right of one having a complete title — the greater, why will it not toll the right of a mortgagee — the lesser, especially when the right of action upon the mortgage is perfect when the adverse possession begins, *18and no relation exists between tbe parties, except that of adverse claimants of the property? To hold, as did the court below, that the statute of limitations would not commence to run until the absolute title was acquired under the mortgage foreclosure sale and conveyance, would be to put it in the power of the owner not in possession to extend or enlarge the statute by his own voluntary act of delaying the foreclosure. This cannot be done, for statutes of limitation are not elastic.

While it is true that the purchasers of the five acres, in fact and law, only acquired their title subject to the mortgage (supposing the record of it to afford constructive notice,) yet they took possession as owners claiming title; and since they were not made parties to the foreclosure proceedings, they were not affected thereby. The right to bring an action to foreclose having existed at the time the adverse possession begun, and that possession having continued more than ten years, the right to foreclose is barred, and with it all other rights. Johnson v. Hopkins, 19 Iowa, 49; Newman v. DeLorimer, Ib., 244; Close v. Samm, 27 Iowa, 503; Gower v. Winchester, 33 Iowa, 302. It is not intended to intimate herein that the statute of limitations would begin to run in favor of a mortgagor or his grantee before the right of action on, or the breach of, the mortgage.

In view of the foregoing determination of the first question, it becomes wholly unnecessary to decide the second, since, even if the appellant’s position is correct, the judgment must be affirmed.

s. abisal: judgment, The appellants, however, insist that since .the plaintiff took no appeal from the decision of the court against him on the first question, he cannot now urge any error. therein. But it must be remembered that the defendants appeal from thz judgment of the court, and not from the reasons or.grounds for it. The correctness of the judgment is the question for us to determine, and if that is correct it is our duty to affirm, although the reasons given for it by the court below may not meet our approval. The judgment was correct, because at the time of the conveyance of -the land *19by the Perrys to Jordan, their title to the five acres was barred or extinguished by the statute of limitations.

Affirmed.

Rehearing

OPINION ON REHEARING.

Cole, J.

3. mortgage: session! pos — After the foregoing opinion was announced, the counsel for appellants filed a petition for a rehearing. We acknowledge the force of the argument made, and the vigorous and able manner of its presentation. Perhaps we should not materially differ with counsel in their conclusions of law, were we to concede fully' their assumptions of fact. They assume that the possession was not adverse, because the purchasers from Ping, after the execution of the mortgage, held their title subject to the mortgage. This would be true enough if there was nothing in the case but these facts. But we find upon the record as certified to us, that the purchasers from. Ping held adversely in fact — they were in actual and open possession by residence and cultivation “ under a claim of title and ownership of said premises.” A mortgagor does not hold adversely to the mortgagee — his possession is consistent with the right and title of the mortgagee, at the common law, and certainly so under our statute. But a mortgagor niay, by his declarations and acts, repudiate the mortgage, deny t.he title or right claimed under it, and convert his holding into an adverse holding. So may the grantee of the mortgagor. In this case it was so done, and thereon we ground our conclusion that the judgment should be affirmed. As to the statute of limitations-see Green v. Turner, post p. 112.

Affirmed.