108 P. 193 | Or. | 1910
delivered the opinion of the court.
This appeal involves but one question: Did the payments made by Idleman upon the debt after he had conveyed the property to Mrs. Black operate to prevent the statute of limitations from running in her favor? By the provisions of Section 5, Title I, B. & C. Comp., the limitation for the commencement of suits upon a sealed instrument is declared to be 10 years, and the limitation for an action upon a promissory note is fixed at six years by the succeeding section. Section 24 of the same title is as follows:
“No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.”
Section 25 reads:
“Whenever any payment of principal or interest has been or shall be made upon any existing contract, whether it be bill of exchange, promissory note, bond, or other evidence of indebtedness, if such payment be made after the same shall have become due, the limitation shall commence from the time the last payment was made.”
“A purchaser with actual notice of the mortgage, or constructive notice by means of a registry, can avail himself of the presumption of payment from lapse of time only when the mortgagor could avail himself of it under the same circumstances. The grantee succeeds to the estate, and occupies the position of his grantor; * * as, for instance, the purchaser of a part of the mortgaged premises cannot claim a presumption of payment of the mortgage from lapse of time when this presumption is repelled by payments of interest made by the mortgagor within twenty years, or by his admission within this time that the mortgage was then subsisting.” 2 Jones, Mortgage, § 1202.
The case of Kendall v. Tracy, Hathaway & Hathaway, 64 Vt. 522 (24 Atl. 1118), is in point on the matter at bar. In 1866 Kendall sold a farm to Tracy, taking his promissory note and mortgage on the farm in payment. In 1871 Tracy sold a portion of the farm to the Hathaways, who entered into possession and made extensive improvements. In 1889 Kendall brought suit to foreclose his mortgage. Tracy had made partial payments on the note from time to time to keep it alive. The defendants Hathaway pleaded the statute of limitations as to themselves. The court said: “The defendants cannot avail themselves of the statute of limitations. They could acquire by their deed no better title than Tracy had, which title he held subject to the petitioner’s mortgage, and that mortgage was kept from the operation of the statute by payments made by Tracy to the petitioner.” In Barrett v. Prentiss, 57 Vt. 297, the court say:
“Was the claim barred by lapse of time? The payment was made by Prentiss, the maker of the mortgage and notes, after he had sold and quit possession of the premises. He was liable upon the notes as maker; and a payment made by him, we hold, would rebut the presumption that the mortgage debt nad been paid, not only as to him, but as to all who were grantees under him, they having*233 taken their interest with constructive notice of the mortgage.”
In Mack v. Anderson, 165 N. Y. 529 (59 N. E. 289), the court, speaking of the effect of a payment made by a mortgagor after parting with his title, says:
“The mortgagor could, of course, have kept the debt alive as to the Andersons, by making payments within the period of limitation, even without their knowledge or consent. Such payments would have bound the Andersons, not upon the theory that the mortgagor was their agent, but because the latter was simply paying his own debt, with which the land of the former was burdened.”
Nothing could be more applicable to the case at bar than the language above quoted. Idleman, the mortgagor, could have kept the debt alive as to the Blacks by making payments within the period of limitations, even without their knowledge or consent. See, also, Perry v. Horack, 63 Kan. 88 (64 Pac. 990: 88 Am. St. Rep. 225) ; Jackson v. Longwell, 63 Kan. 93 (64 Pac. 991) ; Teegarden v. Burton, 62 Neb. 639 (87 N. W. 337). We conclude, therefore, that payments by Idleman, before the statute had barred the action on the note, tolled the statute, not only as to him, but as to defendants as well.
We have examined the authorities submitted by defendants’ counsel, and fail to discover that any one of them covers the exact point in issue: Colonial Mortgage Co. v. Northwest Thresher Co., 14 N. D. 147 (103 N. W. 915: 70 L. R. A. 814: 116 Am. St. Rep. 642), merely holds that the absence of the original mortgagor from the state does not toll the statute of limitations as to his subsequent grantee. Although the course of reasoning by which the learned court arrived at this conclusion is somewhat unique, the conclusion itself is sound and fully in accord with the holding in this state: Anderson v. Bexter, 4 Or. 105. The case of Lord v. Morris, 18 Cal. 482, is not in point. In that case the mortgagors, after
It follows the conclusions here arrived at that the decree of the court below should be reversed, and the demurrer overruled, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.