101 N.W. 893 | N.D. | 1904
This is an action to foreclose a mortgage on real property. The statute of limitations was the only defense, and that plea was sustained by the trial court. The plaintiff has appealed from the judgment. No statement of the case was
On the .30th day of July, 1903, in an action to quiet title and determine adverse claims to the land in question, commenced by the respondent, Drake, against this appellant and others, a judgment was entered adjudging that the mortgage now in question was a valid and subsisting lien on said land, and that said Drake was the owner of the land under a quitclaim deed from one Hagen, the original mortgagor. Thereafter proceedings were commenced to foreclose the mortgage by advertisement under the power of sale. A sale under those proceedings was prevented by an injunctional order issued under' section 5845, Rev. Codes 1899. This order was applied for and obtained at the instigation of this defendant by the original mortgagor, Hagen. The record, however, does not disclose what defense was set forth in the affidavit to procure that order.' In obedience to the injunctional order the plaintiff abandoned the foreclosure under the power of sale, and commenced this action. The appellant contends that the statute of limitations does not bar the right to foreclose under a power of sale; that the defendant, having procured an injunction against that remedy, has compelled the plaintiff to resort to an action as his only remaining remedy. He argues that to permit the statute of limitations to be pleaded under such. circumstances will, in effect, make the statute .a bar to foreclosure under the power of sale, because the mortgagor may present groundless defenses in his affidavit for the ex parte injunction under section 5845, and, by pleading the statute of limitations against the action, prevent any hearing or determination of these other alleged defenses. If that situation has been brought about by section 5845, it is the result of legislation, which the court has no power to disturb, so long as it violates no provision of the constitution. The right to plead the statute of limitations has been granted by the legislature. Under what circumstances the right to that defense shall be permitted or denied is exclusively a legislative question. The statute nowhere forbids resort to that plea under the circumstances of this case. The court cannot refuse to give effect to the plea on the ground of estoppel, because to do so would be equivalent to amending the statute and ingrafting upon it an exception.
The judgment in the action to quiet title is not available as res adjudicata of the issue raised by the answer in the case at bar. Even if we assume, as a matter of law, that the issues in the two actions were identical, and that the statute of limitations- could be properly pleaded in the former action, yet the record before us does not disclose facts sufficient to constitute an estoppel by judgment. The.former judgment was entered in July, 1903. This action was commenced after September 12, 1903. For aught we know, the time limited by the statute may not have expired until after the entry of that judgment. The record before us furnishes no information upon that point. The defense relied upon in this case is one that comes into being by lapse of time. Absence from the state or certain disabilities toll the running of the statute. A former judgment, therefore, is not conclusive against these defendants unless it is made to appear that all the conditions essential to this defense were the same in the former action as they are in the subsequent one.
As to whether or not the right to foreclose under the power of sale is barred after the expiration of the time limited for commencing an action to foreclose, we express no -opinion, because that question does not arise on this record.
There is nothing in this record- disclosing any impropriety in the issuance of the injunctional order; but, even if there were, that fact would not justify the denial by the court of the defendant’s right to avail himself of the statutory defense to this action. If for any reason the injunctional order w.as improperly issued, it should have been attacked directly by an appropriate proceeding.
The judgment is affirmed.
