103 N.W. 931 | N.D. | 1905
Lead Opinion
This is an appeal by plaintiff from a judgment dismissing an action to foreclose a mortgage on real property. The trial court held that the action was barred by the statute of limitations, which was the only defense relied upon. The appeal is under section' 5630, Rev. Codes 1899, and, although a new trial of all the issues is demanded by the appellant, the only issue on which there is any controversy is that raised by the plea of the statute of limitations.
On December 24, 1883, James Dodds made and delivered to John R. Paine a principal promissory note for $250, payable January 1, 1887, bearing interest at the rate of 10 per cent per annum, and three coupon notes for the annual 'interest due respectively on January 1, 1885, 1886 and 1887. To secure the payment of this debt, James Dodd made and delivered to John R. Paine the mortgage in question, covering a quarter section of land owned by the mortgagor in Nelson county, which mortgage was duly recorded January 2, 1884. The mortgagor died intestate November 5, 1884, seized of the mortgaged land, and -left surviving him, as his heirs, his widow, Helen Dodds, and three children, David S. Dodds, Mary Colson and Jennie G. Wolff. Letters of administration upon the estate of James Dodds, deceased, were issued in Nelson county to the son, David S. Dodds, April 22, 1885. On April 16, 1887, pursuant to an order of the county court of Nelson county, the premises in question were set apart to the widow, Helen Dodds, as a homestead. David S. Dodds left the state of North Dakota about the middle of the year 1896, and took up his residence in California, where he died in February, 1902. He had never closed up the administration of his father’s estate. David Dodds died intestate, leaving surviving him a widow, Mary Dodds, but no children. The mortgagor’s daughter Jennie G. Wolff also died intestate, and left as her heirs her husband, Christopher J. Wolff, William Charles Wolff, Mamie Helen Wolff, Louis Joseph Wolff and David Sidney Wolff. The last two named are minors. The evidence fails to show when or where Jennie G. Wolff died. All these heirs have been nonresidents and absent from this state since 1896, but the evidence does not disclose whether they left the state in that year or before, except that it is stipulated that David Dodds left about the middle of 1896, and his widow, Mary Dodds, has never resided
All the heirs except the two minors had ceased to -have any interest in the premises long before the action was commenced, and they-were improperly joined as parties defendant. The administrator and the guardian were discharged and their respective trusts terminated, and the rights of the minor heirs had been conveyed to Firich, before the action was tried. It is, therefore, clear that the action was properly dismissed as to all the defendants except Frich.
The main proposition upon which respondents’ counsel rely in support of their claim that the action is barred is that an action to foreclose a mortgage on real property is in the nature of a proceed
Appellant’s main proposition is that the land descended to the heirs subject to the mortgage, and became, therefore, the primary fund for the payment of the debt, and that the heirs or their grantee could not plead the statutory bar against this action, which is, in effect, one to subject that .primary fund to the purposes for which it was -created. This proposition was al-s-o overruled in the two preceding cases.
For the reasons stated in those two decisions, the wi-do-w and three children of the mortgagor were the persons against whom this cause of action accrued. The action was not barred as to- them or the heirs of those of them who had died at the time defendant Frich acquired their respective shares- of the land. The cause of action accrued January 6, 1887. The note being nominally payable January 1, 1887, which was -a-legal holiday, was actually payable January 2, 1887. At that time the territory law allowed three days of grace. Comp-. Laws 1887, section 4524. As no- suit could be commenced until January 6th, the statutory bar would not be complete until January 6, 1897, -but before that time all the living ■heirs had -left the state and taken up their residence in California. Consequently, as to them, the statute ceased running when they left the state, because section 5210, Rev. Codes 1899, provides that if a person against whom a cause of action shall have accrued “shall depart from and reside -out of this state, * * * th-e time of his absence shall not be deemed or taken- as any part of the time limited for the commencement of such action.” We think the clause, “or remain continuously absent therefrom for the space of one year or more,” which we omitted from the quotation of the -section as indicated -by the asterisks, refers to absences from the state where no residence is established elsewhere. To construe the statute otherwise w-ould deprive the creditor of the full ten years which the statute was intended to allow within which to commence an action by personal service of the summons. Bassett v. Bassett, 55 Barb. 505, 518; Bank v. Bissell (Cir. Ct.) 7 N. Y. Supp. 53.
It is apparent that the absence of any definite proof as to when each of the several heirs of the deceased mortgagor left the state is due to the fact that neither the trial court nor counsel for either party deemed such evidence material. Under such circumstances it would be unjust to order final judgment on this appeal, and a new trial should be had.
The judgment appealed from is reversed, and the cause remanded for further proceedings in accordance with this opinion. The appellant will recover the taxable costs of this appeal.
Dissenting Opinion
(dissenting). We are all agreed that an action to foreclose a real estate mortgage is an action in personam, an'd that the statute of limitations, together with those provisions which suspend its running upon the death or absence of the person against whom the cause of action accrues, apply to it in like manner as to other personal actions. From this, in my opinion, the conclusion necessarily follows that this action is not barred.
The debtor died November 5, 1884. Subsequently administration was granted upon his estate, and on the date when his obligation matured, to wit, January 1, 1887, a personal representative stood in his place, and the statute commenced to run. Had the administrator continued to reside in the state, the action would have been barred at the expiration of ten years. The record shows that the administrator left the state in the middle of the year 1896. That was less than ten years, and approximately nine years and six months, before the bar of the statute would have fallen had he remained in the state. His departure from the state suspended the further running of the statute. This action was commenced before the appointment of the second administrator, and when it was commenced the statute had run but nine and one-half years. It was therefore brought within time, and is not barred.
I entirely disagree with my associates upon the fundamental principle upon which they rest their conclusion, i. e., that the cause of action accrued against the heirs. My views upon that question are set out at length in a dissenting opinion in Colonial & U. S. Mortgage Co. v. Northwest Thresher Co., 103 N. W. 915, and in Colonial & U. S. Mortgage Co. v. Flemington, Id. 929, in which opinions have just been handed down. They will not, therefore, now be repeated.
The judgment of the district court should be reversed, and judgment entered for the plaintiff as prayed for in his complaint.