Jennings v. Peay

51 S.C. 327 | S.C. | 1898

The opinion of the Court was delivered by

Mr. Justice Gary.

This action was commenced on the 12th of November, 1896, to- foreclose the mortgage described in the decree of his Honor, Judge Benet, which, together with the appellant’s exceptions, will be set out in the report of the case.

The respondent gave notice that he would ask this Court to sustain the decree upon grounds additional to those upon which his Honor based his decree. The view which this Court takes of the questions raised by the exceptions renders the additional grounds immaterial.

As stated by the appellant in his argument, the exceptions raise only one question, to wit: Is the statute of limitations applicable to this case, as held by his Honor, so as to bar the right of foreclosure of the mortgage? The bond and mortgage were executed on the first of November, 1869, and the bond was payable in five equal annual in-stalments. The first payment, then, fell due on the first of November, 1870, after the adoption of the Code of Procedure, which went into effect on the first of March, 1870. Section 96 of the Code was as follows: “The provisions of this title shall not extend to actions already commenced, or to cases where right of action has already accrued; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form.” Section 97 thereof was as follows: “Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute, and in the cases mentioned in section 96.” Section 113 prescribed the time for commencing actions, other than for the recovery of real property, as follows: “Within twenty years * * *. Subdivision 2. An action upon a sealed instrument.” The words, “Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued,” &c., and “An action upon a sealed instrument,” show that it was the intention of the legislature to make the statute of limitations applicable to an action for the foreclosure of a mortgage. The statute of limitations is applicable in this case because the cause of action on the mortgage did not accrue until the maturity of the several instalments, which was after the Code went into effect. As the action herein was not commenced within twenty years after the accrual of the right of action on the mortgage, nor within six years after the last payment thereon, the Circuit Judge was correct in sustaining the plea that the action was barred by the statute of limitations. The recent cases of Millwee v. Jay, 47 S. C., 430, and Stoddard v. Owings, 42 S. C., 88, so conclusively sustain the decree of the Circuit Judge, that we deem it unnecessary to do more than cite those cases.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.