182 S.E. 797 | W. Va. | 1935
Sale of property under a deed of trust executed by Mary E. *658
LeSage, Anna H. LeSage and their respective husbands (hereinafter referred to as plaintiffs) in 1909 to secure a note was not attempted until 1934. This suit was brought by the plaintiffs to enjoin the sale on the sole ground that all rights under the deed had been extinguished by Acts 1921, chapter 65, amended and reenacted in Code 1931,
The part of the Act of 1921 pertinent here follows: "No lien, reserved on the face of any conveyance of real estate, or lien created by any deed of trust or mortgage on real estate, shall be valid or binding as a lien on such real estate after the expiration of twenty years from the date on which the debt or obligation secured thereby becomes due; and the provisions of this Act shall apply with like effect to every such lien now existing, as well as to every such lien hereafter reserved or created."
As amended and reenacted in 1931, the Act provided that the limitation of twenty years should run from the original due date of the debt secured, and that no extension or renewal of the debt should enable the lien to survive the limitation.
It seems worth while to preface this discussion with a brief statement of the rationale of ordinary statutes of limitations. It is hornbook law that a state "may organize its judicial tribunals according to its notions of policy, and may prescribe the time within which suits shall be litigated in its courts." 17 Rawle C. L., subject Limitation of Actions, sec. 7. The ordinary statute of limitations does not qualify or extinguish
directly a single substantive right arising from a contract, but merely withdraws from the parties, after a specified period, the privilege of using the courts to enforce the contract. 17 Rawle C. L., supra, sec. 10; Cooley Const. Limitations (8th Ed.), p. 760, et seq.; Black Const. Prohibitions, sec. 150. After the statute has run against a debt, a creditor remains entitled to use any lawful means available for collecting his debt which does not involve court action. Williston on Contracts, sec. 2002; Minor on Real Property (2d Ed.), sec. 611; Roots v. Salt Co.,
We have found no clearer conception of the purpose of this inhibition than that expressed by Associate Justice Trimble inOgden v. Saunders, 12 Wheat. (U.S.) 213, 327,
In 1909, when the instant deed of trust was executed, there was no statutory limitation on the period of its enforcement, though at that time the law would indulge a rebuttable presumption that a debt secured by a deed of trust was paid after the expiration of twenty years. Criss v. Criss, supra, 403-4. The law, as it was then, entered into the proposal of plaintiffs to borrow the money as well as into the acceptance thereof by the creditor. The minds of the parties met under that law. It became a component part of the contract. The creditor is entitled to have the contract enforced according to the law of the contract. This is a fundamental rule of the common law and is recognized in West Virginia as well as by the federal authorities. "The law at the time of the contract is part of it." State v. Nutter,
Plaintiffs' brief quotes from Terry v. Anderson,
We recognize a nice distinction between the obligation of a contract and its remedy. Where the obligation is not impaired, the remedy may be reasonably modified "as the wisdom of the nation shall direct." Sturges v. Crowninshield, 4 Wheat. 200,
Under the law effective when the deed of trust was executed (1909), the legal presumption of payment arising at the expiration of twenty years could be rebutted by satisfactory proof that the debt had not been paid. Criss v. Criss, supra. More than a month before the expiration of the twenty year period following the maturity of plaintiffs' note, they conveyed to Biern Frank, Inc., the property included in the instant trust deed (taking back from their grantee a trust deed to secure to them part of the purchase price, some of which has not been paid). As part of the consideration for the conveyance to Biern Frank, Inc., the plaintiffs specifically required their grantee to assume the payment of their note secured by the instant deed of trust. On the day the twenty year period would have expired, the grantee paid up all past due interest and renewed the note (payable one year after date). Following which the grantee kept the interest paid for several years. It is "well settled" that the acts of the plaintiffs and their grantee (because of its privity with them, McClaugherty v.Croft,
The decree of the circuit court is accordingly affirmed.
Affirmed. *664