Smith v. Pegg

111 Mich. 232 | Mich. | 1896

Grant, J.

(after stating the facts). The defense interposed is the statute of limitations, which the defendant insists began to run from the date of the entry of the decree, July 21, 1884, and the complainant insists did not commence to run until the filing of the report, or until after an order had been entered confirming the report of sale and directing the payment of deficiency, under 2 How. Stat. § 6702. The statute of limitations provides:

“Every action upon a * * * decree heretofore rendered, or hereafter to be rendered, in a court of record * * * of this State, * * * shall be brought within ten years after the entry of the * * * decree, and not afterwards.” 2 How. Stat. § 8736.

The original decree in a foreclosure suit, fixing the amount due and ordering a sale, is a final decree, from Which an appeal will lie, and is the decree fixed by the statute of limitations. If the mortgagor does not choose to pay this decree, he may let the land be sold, and the amount realized will be credited upon the decree. The decree is an adjudication of the amount due. It is final and conclusive, unless an appeal is taken. Subsequent payments, whether voluntary or by the sale of the property, do not affect the time when the statute begins to run. It is true that the personal liability cannot be enforced until the sale is made and report thereof filed, Mickle v. Maxfield, 42 Mich. 309; Shields v. Riopelle, 63 Mich. 462. The right to an execution is suspended until this is done. A stay of execution of a judgment at law does not postpone the running of the statute till the stay expires. If the complainant’s construction be the correct one, he may postpone indefinitely the running of the statute, either by neglecting to sell, or to have the sale, when made, confirmed. By implication, at least, the rule is settled in Wallace v. Field, 56 Mich. 3, in which it was said: , “The complainant had 10 years after the decree within which to make his claim by execution.” While the point was not directly involved in that case, yet it is a plain declaration by the court of their construction of the statute, and, we think, states the correct rule.

The decree is affirmed, with costs.

The other Justices concurred.