48 P. 282 | Idaho | 1897
Lead Opinion
On October 31, 1888, the defendant E. S. Spence made, executed and delivered to one Hannah B. Humphreys his certain promissory note for the sum of $3,500,
The only question involved in this appeal is as to the correctness of the first conclusion of law as found by the district court, which is as follows: “That the real estate described in foregoing finding No. 4 is not subject to the said mortgage lien claimed by the plaintiff, the said mortgage having been barred by the statute of limitations in such cases-made and provided, before the commencement of this action: and as to the defendant Eliza Spence, and having been and now being used as a homestead.” The somewhat indistinct wording of this “conclusion of law,” and the fact that the real estate mortgage is not mentioned or alluded to in the judgment, make it somewhat difficult to determine just what conclusion the learned judge of the district court really came to. The court finds that neither the note nor the chattel mortgage is barred by the statute of limitations, and renders judgment against the defendant R. S. Spence for the full amount claimed, and also a decree of foreclosure of the chattel mortgage, subject to that of the intervener, Hoover. If it was the intention of the district court to hold that the real estate mortgage was barred, while the remedy upon the notes still survived, we have simply to say that such holding is directly opposed to the decision of this court in the case of Kelly v. Leachman, 3 Idaho, 629, 33 Pac. 44, a decision which we are not disposed to recede from or modify, notwithstanding the evident disapproval of the learned judge of the fifth district.
Counsel for respondents seem to be at issue with the court in its conclusion that the note was not barred, as the court gives judgment against the defendant E. S. Spence and in favor of plaintiff upon the note for the full amount claimed, ■and from that judgment no appeal is taken. The important, if not the only real, question involved in this appeal is, "Was the action upon the real estate mortgage barred? We might ■content ourselves by simply relying upon the decision of this court in Kelly v. Leachman, supra, but, as before said, there is an element in this ease which did not exist in that, and we will deal with that alone. The respondents base their contention almost entirely upon the decisions in California as •our statutes are taken largely from those of that state. The •distinction as to remedy upon a mortgage upon real estate in those states where the mortgage is a conveyance, and those like 'California, Idaho, and some others, where the mortgage is a mere security, must not be lost sight of. The statutes of •California (Code Civ. Proc., see. I?26),as well as the statutes of Idaho (Eev. Stats., sec. 4520), provide that “there can be but •one action for the recovery of any debt, or the enforcement of ■any right secured by mortgage upon real estate or personal property.’5 That the statute of limitations runs against the remedy, and not against the debt, is settled law. If, therefore, the remedy upon the mortgage was barred, that upon the note must have been. But, as we have heretofore held, the Temedy upon the note was not barred by reason of the voluntary acts of the defendant maker, and to this extent our decision in Kelly v. Leachman seems to find recognition by the learned judge of the district court.
There is another feature of this case which, by the ruling ■of the court, was not permitted to appear upon the trial; but, as we consider such ruling error, and as the amendment proposed appears in the record, we shall assume that the facts set forth in such proposed amendment were true, at least in •so far as they are supported by the record. The defendant R. S. Spence was and is a practicing attorney, and as such he was employed by the deceased, Hannah B. Humphreys, to collect certain moneys due to her from the estate of a deceased brother in England. Spence collected something over $3,000, but forgot to pay any portion thereof to his client. Finally he made a settlement with his client, which ended in the giving •of the note and mortgages in this suit. We cannot close our ■eyes to facts inevitably apparent, and it is clearly evident from the record that this arrangement was made by the old lady, or rather consented to by her, to avoid the unpleasant predicament which her attorney would be placed in should the criminal law be resorted to. For the money received by
The necessity for two appeals in this ease is not apparent,, but, it having been stipulated that the two appeals should be heard together upon the record, as presented, and that one
Rehearing
ON REHEARING.
We have examined the petition for a rehearing filed in this case, and are unable to discover therein anything new, either in the way of argument or authority. The case was thoroughly briefed, and was carefully considered by the court, and we see no warrant for changing our views. The rehearing is denied.