33 P. 44 | Idaho | 1893
(After Stating the Facts.) — The plaintiff assigns two errors: First, the court erred in refusing to strike out the second demurrer. Section 4228 of the Revised Statutes of Idaho provides that any pleading may be amended once by the' party, of course, and without costs, at any time before answer or demurrer filed, or after demurrer, and before trial of the issue of law thereon. A demurrer is a pleading, and may be-amended. Again, the court had the right to permit a second demurrer to be filed. This demurrer was filed without permission. Having been placed on file, the court could permit it to remain. This matter was entirely within the discretion, of the court. (Hedges v. Dam, 72 Cal. 520, 14 Pac. 133.)
The second assignment is that “the court erred in sustaining the second demurrer.” The deed of conveyance given by Leachman to plaintiff Kelly, together with the agreement by Kelly to reconvey the property described therein, to Leachman, upon payment of the consideration money, with interest, and payment of mortgage given to the Corbin Banking Company, constituted a mortgage. So held by this court in Kelley v. Leachman, ante, p. 392, 29 Pac. 849. A mortgage is a lien, upon everything that would pass by a grant or conveyance of the property, as between mortgagor and mortgagee, from the-date of its execution; as between these parties and third persons without actual notice, from the date of filing said mortgage for record. (Idaho Rev. Stats., see. 3355.) The lien of a mortgage upon real estate may be discharged in three ways: 1. By an entry in the margin of the record thereof, signed by the mortgagee, acknowledging the satisfaction of the mortgage, etc. (Rev. Stats., sec. 3361.) 2. Or it may be discharged upon the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, or his personal representative or assignee, duiy acknowledged, etc. (Eev. Stats., sec. 3362.) 3. By decree of •■a competent court. The mortgage in controversy in this case bas not been discharged in either of these ways, and the lien of ihe mortgage remains upon the land. Nor is the debt extinguished.
The only question is as to whether the plaintiffs’ remedy is barred by the statute of Emitations. Statutes of limitations act upon the remedy only, and not upon the debt. (Waltermire v. Westover, 14 N. Y. 20; Lynbuy v. Weightman, 5 Esp. 198; Sturges v. Crowninshield, 4 Wheat. 122; Wilcox v. Williams,, 5 Nev. 206.) In Waltermire v. Westover, supra, the ■court say: “The nature, effect, and modus operandi of statutes of limitations have given rise to much discussion in the courts, and to some conflict of opinion; but in respect to one distinction there has been, I believe, a pretty general concurrence of ■sentiment. It is said that such statutes act upon the remedy, merely, and not upon the debt. This distinction is of long ■standing.” In a note to Lynbuy v. Weightman, 5 Esp. 198, it is said that bankrupts and infants stand on different ground, in Tespect to debts from which they are'discharged, from persons whose débts are barred by the statute of limitations, as that statute does not discharge the debt, but only takes away the Temedy; and in the ease of Sturges v. Crowninshield, 4 Wheat. 122, it was said by Chief Justice Marshall that the statutes of limitation are not within the well-known prohibitory clause of the United States constitution, because they act upon the remedy merely, and do not impair the obligation of the contract, and, further, it is unnecessary to refer to the numerous cases in our own courts in which the distinction is recognized. .It is virtually included in the doctrine universally received and ■acted upon- — that where there is a new promise to pay a debt 'barred by the statute, it is not necessary to count upon this as ;a new contract, but the action may be brought upon the original ■obligation. The operation of the statute upon the remedy being 'removed by the new promise, the parties are left in statu quo. (See, also, Carshore v. Huyck, 6 Barb. 583.) It follows, conclusively, that the debt in the case at bar is not extinguished,
In this ease, as in others of like character, the subject matter of the action is the debt due the plaintiffs from the defendant, Leachman; and the mortgage, and the lien thereof, is a mere incident to the debt, and given to secure its payment. (Borst v. Corey, 15 N. 7. 509.) The complaint alleges that notes were given by the defendant, Leachman, to plaintiff Kelly, as stated above — one on December 15, 1885; one, May 14, 1886; one, November 6, 1887; one, October 15, 1889 — in each of which notes was included the whole amount of interest then due upon the original debt. These notes were in writing. Were such notes a sufficient acknowledgment of the whole amount of the indebtedness to prevent the statute of limitations from running? Section 4078 of the Revised Statutes of Idaho is as follows: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which 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.” In Barron v. Kennedy, 17 Cal. 577, the court say: “Part payment has always been held sufficient to take the debt on which it is made out of the statute. Unless accompanied at the
From all these cases and many others examined it clearly appears that a promise, in writing, signed by the party to be charged thereby, to pay the interest due upon the whole debt, was an unequivocal acknowledgment of the whole debt, from which a promise to pay the same may and ought to be implied; that the identity of the sum included in the promissory note, with the interest on the existing debt, and that it was given for such interest, may be proven by parol testimony. From this statement of the principle, it is clear that the complaint in the case at bar is sufficient to maintain the action. The decision of the district court is reversed, and the cause remanded for trial in accordance with this opinion, with costs of appeal awarded to appellants.