Little v. Reid, 75 Mo. App. 266

Little v. Reid

75 Mo. App. 266 | Mo. Ct. App. | 1898

Smith, P. J. —

This cause was certified here by the supreme court for the reason that it was without the appellate jurisdiction of that court.

*269The action was begun April 19, 1895. Its' objects were to foreclose a deed of trust conveying certain real estate and to obtain judgment for the debt thereby secured. The deed of trust, in the nature of a mortgage, which was the foundation of the action was executed by Daniel Bentley, October 3, 1882, to secure a note to plaintiff for $650, payable twelve months after date with interest at six per cent per annum to be compounded annually. Bentley died intestate June 8, 1892. No administration was had on his estate until April 5, 1895, when the probate court ordered the defendant Reid to take charge as public administrator. Under the answer the execution of the deed of trust was admitted.

‘ umTiatoiT The only issue was as to the right of the plaintiff to enforce .its provisions owing to the lapse of time. Little v. Reid, 141 Mo. 242. Adverting to the statement of facts already made by us, it will be seen that the interval of time between the date of the maturity of the note October 3, 1883, and that of the commencement of the action was eleven years, six months and sixteen days; and that between the date of the death of Bentley— June 8, 1892 — and that of the administration of his estate — April 5, 1895 — was two years, nine months and twenty-seven days. By subtracting the latter interval from the former there would remain only eight years, eight months and nineteen days. The settled rule in this state is, that the statute of limitations does not run in favor of an estate during the time there is no administration; or, in other words, where the general statute of limitations is invoked in favor of an administrator as here, the time elapsing between the death of his decedent and his own appointment must be excluded from the computation of time. Doerge v. *270Heimenz, 1 Mo. App. 238; Nelson v. Haeberle, 26 Mo. App. 1; Ayers v. Donnell, 57 Mo. 396; M’Donald v. Walton, 2 Mo. 48; Polk v. Allen, 19 Mo. 467; McKinzie v. Hill, 51 Mo. 305. In section 401 of Woerner’s American Law of Administration it is stated that, “as a general principle it would seem that during the interval between the debtor’s death and the appointment of an administrator to his estate the general statute ought not to run.”

Applying the foregoing rule to the conceded facts of this case and it becomes clear that the plaintiff’s action was not barred at the time it was commenced. The action was, in legal contemplation, commenced in eight years, eight months and nineteen days after the the plaintiff’s right thereto accrued, or after the default, and therefore within the ten years period of limitation prescribed by the statute.

The defendant invokes as applicable the provisions of the act of February 18, 1891. Sess. Acts 1891, p. 184. The first section of which provides that no action shall be maintained to foreclose any mortgage hereafter executed after the debt secured by it has been barred by limitations. The second forbids that any such suit be had or maintained to foreclose any such mortgage or deed of trust heretofore executed to secure any such obligation after the expiration of two years after the passage of this act.

It is obvious from the very terms of the first section that it does not apply since the present note and mortgage were executed before the act took effect. Nor does the second section have any application for the plain reason that when the act took effect the plaintiff’s right of action on the note itself was not barred. This is not a case in which when the act took effect the action was barred on the note but not on the *271mortgage so that the two years limitation therein prescribed has no sort of application to it.

The judgment of the circuit court which was- for plaintiff will be affirmed.

All concur.