Savage v. Scott

45 Iowa 130 | Iowa | 1876

Beck, J.

, residencefcitizensinp. I. Under the statute of limitations in this State, actions of this kind are barred in ten years. Code, § 2529, par. 4. But it is provided that “ the time during which a def'endaut is a non-resident of the State shall not .h® included in computing any of the periods of limitation”- prescribed in the statute. Code, § 2633. Under this statute the period of limitation, having commenced to run in favor of a resident debtor, is arrested by his becoming a non-resident.

It becomes important to determine whether the statute began to run against the claim which is the foundation of this action. From the court’s finding of facts, it appears that for more than four months after the note became due the mortgagor was in this State, voted at an election, was engaged in business, and had the intention of making his permanent home here. lie was surely a resident of this State so far as to be subject to its jurisdiction and to be capable of exercising all the rights of citizenship.- It cannot be doubted that, during the time of his residence, he was subject to process of the courts, and an action could have been brought against him. We need not inquire in what state he holds a domicile; he had. a residence here of the character that would subject him to process of the courts of this State. Love v. Cherry, 24 Iowa, 204. While he held this residence the statute of limitations, ran against the note and mortgage. That the statute runs in favor of all residents of the State cannot be questioned, for the plain reason that the section, 2633, above cited declares it shall not run in favor of a non-resident. That residence in the State, and not citizenship or domicile, determines the fact of the meaning of the statute cannot be doubted. The distinction which the law draws between the place of l’esidence and that of domicile or citizenship is plain. A man may have more than one place of residence, but he can have but one domicile, and can hold citizenship» in but one State. Love v. Cherry, 24 Iowa, 204. Personal actions in this State must be brought in the county where the defendant acPucdly resides. Code, § 2686. Of course one having an actual residence in this State may be sued in our courts. We conclude that the note and mortgage, under' the facts found by the court, could have been sued upon in this State at any time for near five months after maturity, in a personal action against the mortgagor, and that the statute of limitations ran for that time.

2_._. demise. II. The statute ceases to run upon the debtor becoming a non-resident; when that disability is removed it resumes its operation. To be a non-resident of this State, one must be a resident elsewhere. The word nonresident implies that one so described holds a residence in another place. But we cannot say of a deceased person that he is a non-resident, for he holds a residence nowhere. The disability of non-residence is removed in case of death.

This viéw is supported upon the consideration that on the death of a debtor claims which, in his life, were enforced by personal actions against him become the subject of proceedings prescribed by law against his administrator or, executor. The personal representative takes the place of the deceased. The creditor has it in his power, if property of the estate be found here, to cause an administrator to be appointed, without delay, against whom proceedings may be at once instituted. His legal remedy, which was suspended by the debtor becoming a non-resident, is revived at the debtor’s death. From the moment the remedy is revived, the statute of limitations begins again to run. These views, and the conclusion we reach, are sustained by the following authorities: Christophers v. Garr, 6 N. Y. (2 Seld.), 61; Teal v. Ayres, 9 Texas, 588.

3. mortgage: tended. III. The plaintiff seeks in this action to foreclose the mortgage for the amount paid by him for taxes, with interest, as well as the amount of the promissory note secured by the incumbrance, lhis reliei cannot be granted. The mortgage contains no condition for securing the sum advanced for taxes or any other debt, except that evidenced by the promissory notes. The security cannot be extended to cover debts not provided for in the mortgage, in the absence of facts and equities which would require a court of chancery to give it such effect. Such equities do not exist in, this case.

No other points arise in the case for our determination. The judgment of the District Court is

Affirmed.