261 F. 244 | D.C. Cir. | 1919
From a decree dismissing his bill in equity on the motion of the defendants, Hill and Claytor, Talbott appeals. According to the allegations of the bill, Talbott is the owner of two parcels of land in the District of Columbia. In 1896 one Bradley, who then owned the property, conveyed it to Hill and Deeble by deed of trust, which was duly recorded, to secure the payment of $8,000, reptesented by two notes, each payable in four years after date, with interest. The deed gave the usual power of sale in case of default. Deeble is dead, and Hill is the surviving trustee. By reason of the lapse of more than IS years since the date of the deed, it is asserted that the right to enforce the same by sale of the property is barred by the statute of limitations, and that the deed constitutes a cloud upon the owner’s title which he seeks to have removed by this proceeding. Recently the representative of the holder of the notes, Helen A. Claytor, announced her purpose to order the surviving trustee to sell the real estate under the provisions, of the deed for the purpose of paying the notes. The sale, it is said, would inflict serious loss, not only upon the holder' of the notes, but upon Talbott, who would thereby be subject to expense.; that in any event the validity of the deed of trust is so
The court entered a decree dismissing the bill unless the plaintiff obtained leave within a time limited to file an amended and supplemental bill. This he did not do, and the decree of dismissal was made final. After it had been entered, plaintiff filed a “proposed amended and supplemental bill,” accompanied by a petition for rehearing. The petition was denied, and leave to file the bill refused. The supplemental bill contained no' new statement of material facts, except that the interest on the notes secured by the deed of trust was paid by the plaintiff up to July 2, 1918, about a month before the bill was filed, which was on August 5th of that year.
Hill 'and Claytor have brought no action. Therefore there is no action for the statute to operate against. They are simply seeking to exercise the power conferred upon the trustee, Hill, by the deed of trust. We do not think the statute of limitations controls them in any respect. To say that it did would he to read into it something which the Legislature did not place there.
The deed of trust covers three lots. Only two are affected by the suit. Talbott claims that there ought to be a marshaling of assets, for the purpose of determining what proportion of the debt the two lots should bear. He says that one note is secured on each lot, “but inartinclally.” Whether done inartificially or otherwise, matters not so long as it is done. Each lot must respond for the note fastened on it, .and for no more. There is no merit in this contention.
We have carefully considered the many decisions cited by appellant in support of the different points relied upon by him, but find none that militates in any wise against the views we have here expressed.
The decision of the lower court is right, and is affirmed, with costs.
Affirmed.