103 Mo. App. 264 | Mo. Ct. App. | 1903
— Defendants on March 12, 1872, executed a note for $300, together with a mortgage to secure it, to Elizabeth Calvert. The note was due in one year. A payment of $100 was made on the note April 2, 1885. Elizabeth Calvert died April 18,1889. Plaintiff was appointed administrator of her estate August 3, 1901, and this action was begun on July 31, 1902. The statute of limitations was made a defense and the trial court found for defendants.
Prior to 189.1, an action to foreclose a mortgage on real estate might have been maintained if brought any time within twenty years notwithstanding the obligation secured was barréd earlier. In that year the Legislature enacted the following statute, being sections 4276 and 4277, Revised Statutes 1899, viz:
“Sec. 4276.. No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the statute of limitations of this State.
“Sec. 4277. Nor shall 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.”
The first of these sections provides that mortgages or deeds of trust executed “hereafter,” that is, after the enactment of the statute shall be barred at the same time with the obligation which it secures. The second section (as presently explained) gives two years after the enactment of the statute in which to institute suit to foreclose a mortgage or deed of trust which had been executed before such enactment. The mortgage here in question was executed prior to the enactment of the statute referred to and therefore it came under the last section giving a period of two years’ limitation, and, the note itself being barred and more than two years since
A question as to the true interpretation of this statute first came before us shortly after its enactment in the case of Little v. Reid, 75 Mo. App. 266, and in an opinion written by Judge Smith we put upon it a construction which we believe to be sound and which has not been questioned in any other case.
The second branch of this case on the question
The result is that the judgment should be affirmed.