190 Iowa 1268 | Iowa | 1920
Under the laws of Colorado, actions on promissory notes are barred in six years after their maturity; and hence, as the note in suit fell due July 16, 1907, a cause of action thereon in Colorado was barred; and the only question is whether it is barred under the laws of this state. Under Section 3447 of the Code, founded on a written instrument, a cause of action is barred in 10 years, though in computing time the period of defendant’s residence elsewhere is deducted (Code Section 3451).
“When a cause of action has been fully barred by the laws of any country where the defendant has previously resided, such bar shall be the same defense here as though it had arisen under the provisions of this chapter; but this section shall not apply to causes of action arising within this state.” Section 3452 of the Code.
But it is argued, that, as the giving of the note and mortgage was one transaction, and the mortgage could not be enforced elsewhere than in Clarke County, action thereon could not .have been barred by the statute of Colorado. Were this a suit to foreclose the mortgage, that question must have been determined. The action is on the note only, as was authorized by Section 3428 of the Code. Separate action may be maintained on each instrument, though actions on each may not be prosecuted in the same county at the same time. See Section 4288 of the Code; Smith v. Moore; 112 Iowa 60; McDonald v. Second Nat. Bank, 106 Iowa 517. The courts in those states where the mortgagee takes title quite generally hold that the statute of limitations runs against actions founded on the note and on the mortgage separately; and, though the action on the note is barred, suit may be maintained, unless the statute has run against that also. As said in Gower v. Winchester, 33 Iowa 303:
"This is so because the mortgagee holds the legal title to the land, subject only to be defeated by the payment of the debt secured by the mortgage; that the mortgage is the principal thing, and that, the period of limitations in respect to the debt and the mortgage not being the same, that, applicable to the mortgage governs. The creditor has a double remedy: one upon his deed to recover the land, another upon the note to recover judgment and execution for the debt; and he is allowed to recover on the mortgage, although his remedy on the note may be barred.”
See 2 Wood on Limitations (4th Ed.) 1038, where the author says:
"In most of the states, the statute runs upon the- note or debt, which is merely a simple contract, within a shorter period than it does upon the mortgage, which is a specialty; but while the debt itself, because of the statute bar, ceases to be enforcible as a personal claim, yet the lien created by the mortgage, as well as the right to enforce it, still remains, and, if enforced before
Under the statutes of this state, the debt is regarded as the principal thing, and the mortgage as a mere incident thereto; and consequently, when the debt is barred, the remedy upon the mortgage also is barred. Clinton County v. Cox, 37 Iowa 570; Cower v. Winchester, 33 Iowa 303. As said in the first of these cases:
“A mortgage conveys no interest in or title to lands, but is simply a lien thereon for the purpose of securing the indebtedness which is its foundation. It is an incident — a security, in the nature of a lien — of the debt. It survives until the debt be paid or discharged, or the mortgage is released. It is a convoy, bearing a lien for the protection of the debt; and, as long as that exists, it is not relieved of the duty of protection, or rendered ineffective for that purpose. When the debt is discharged or,- by operation of law, may no longer be enforced, its functions terminate, and not before.”
As the note is a distinct contract, although a part of the transaction in which the mortgage was given, and might be sued on separately in Colorado, or wherever venue could be rightly, and especially in Colorado, the existence of the mortgage furnishes no ground for denial of the applicability of the statute. As the cause of action thereon did not arise in this state, and was barred by the statute of Colorado, it was rightly held to be barred in this state.. — Affirmed.