65 Ind. App. 24 | Ind. Ct. App. | 1917
Appellee, as assignee of the note and mortgage herein sued on, filed in the trial court a complaint in three paragraphs. The first paragraph is based on the note and mortgage, and by it appellee sought to obtain a personal judgment against appellant for the amount due on the note and a foreclosure of the mortgage given to secure such note. The second paragraph is based on the promise to pay contained in the mortgage, and asks for a personal judgment for the amount due by reason of such promise and a foreclosure of the mortgage given to secure the debt evidenced thereby. The third paragraph is based on the promise to pay contained in the mortgage and seeks to enforce the lien on the mortgaged premises, and to have the mortgage foreclosed to satisfy the same, but asks no personal judgment.
Appellant filed an answer in four paragraphs. The first paragraph is a general denial, the second is the ten-year statute of limitation, the third the fifteen-year statute of limitation, and the fourth paragraph avers that the note and mortgage were executed by appellant as surety at a time when she was a married woman.
A demurrer was filed to said second, third and fourth paragraphs of answer, and the court overruled such demurrer to each of said answers, to the second and third
We are not quite sure that We understand appellee’s position in this court as to the theory of the cause of action stated in said third paragraph of his complaint. He insists that it is not an action for a personal judgment on the promise to pay contained in the mortgage; and he also says in effect that he desires to impress upon the court that “the third paragraph of complaint upon which the judgment was rendered is not brought to foreclose a mortgage.” The averments and the prayer of this paragraph do not justify the latter contention. On the contrary, appellee in his prayer in this paragraph expressly “demands judgment determining the amount of his said debt and for foreclosure of said mortgage and a decree ordering the land sold and the proceeds applied to the satisfaction of said debt, and barring the right of defendant and all persons claiming by, through or under her as against said mortgage and said lands and that out of the proceeds of such foreclosure plaintiff’s debt and all costs herein be paid.”
It is manifest from the general finding and judgment of the trial court that it treated said third paragraph
Upon such finding there is judgment as follows: “It is therefore ordered, adjudged and decreed by the court that there is due the plaintiff on his debt and mortgage, sued upon herein in the third paragraph of complaint herein, the sum of two hundred ninety-five dollars and fifty cents ($295.50), of which amount the sum of twenty-six dollars and eighty cents ($26.80) is for the plaintiff’s attorney’s fees. All collectible without any relief from valuation and appraisement laws.
“It is further ordered, adjudged and decreed by the court that the equity of redemption of the defendant and of all other persons claiming from, by, through or under the said defendant, be, and the same is hereby forever barred and foreclosed. * * * Said sale to be made without relief from valuation or appraisement laws. And the proceeds derived from such sale the sheriff is directed to apply in the manner following, to-wit: — First: To the payment of the costs of this proceeding and the costs of sale. Second: — To the payment of the plaintiff’s claims, principal, interest and attorney’s fees. And the overplus, if any, remaining after the payment of the above judgment, principal, interest, costs and attorney’s fees, shall be paid by said sheriff to the clerk of this court for the use and benefit of the party or parties legally entitled thereto.”
If said paragraph of complaint were merely an action to declare the lien, it was an idle ceremony, seek
Following his statement, supra, that said paragraph of complaint is not brought to foreclose a mortgage, appellee says further: “No personal judgment is sought or obtained. The promise of Mrs. Tennant to pay the debt is not sought to be .enforced. Her obligation to submit her land to' sale to satisfy plaintiff’s debt is what is relied on. Her promise in the mortgage to pay the debt makes the instrument a separate and complete contract and therefore enforceable aside from the note but we do not ask her to fulfill that promise to pay the debt. We repeat, we do not ask her and the judgment does not require her to pay or carry out any written contract whereby she is to pay money.”
We assume that the language quoted presents the key to appellee’s real contention as to the theory of said paragraph of complaint, and we may add that we think that this was the theory adopted by the trial court, and from this viewpoint we shall consider the sufficiency of said second and third paragraphs of answer to said third paragraph of complaint. This requires us to determine which of the periods of limitation fixed by statute controls the cause of action stated in the third paragraph of complaint.
The sections of the statute and provisions of the periods of limitation cited and relied on by the parties as applicable to such cause of action are as follows: Section 295' Burns 1914 (§38, Acts 1881 [s. s.] p. 240. In force September 19, 1881) : “The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterward: '* * * . Fifth. Upon promissory notes, bills of exchange and other written contracts for the payment of money, hereafter executed, within ten years. * * * ' Sixth. Upon contracts in writing
Section 296 Burns 1914 (§39, supra) : “All actions not limited by any other statute shall be brought within fifteen years. In special cases, where a different limitation is prescribed by statute, the provision of this act shall not apply.”
Section 308a Burns 1914 (§1, Acts 1909 p. 334. In force April 5, 1909) : “That no action shall be brought or maintained to foreclose or enforce the lien of any mortgage on real estate in this state when the last installment of the debt secured by such mortgage as shown by the record thereof has been due more than twenty years. If the record of any mortgage does not show when the debt thereby secured becomes due, then no action shall thereafter be brought or maintained to foreclose or enforce the lien of such mortgage after twenty years from the date of such mortgage.”
Section 308b Burns 1914 (§2, supra) : “The lien of all mortgages upon real estate in this state shall cease and expire twenty years from the time the last installment of the debt secured by such mortgage becomes due as shown by the record thereof. If the record of such mortgage does not show when the debt thereby secured becomes due, the lien of such mortgage upon the real estate therein described shall cease and expire twenty years from the date of .such mortgage.”
Appellee, in effect, concedes that the fifth subdivision, of §295, supra, controls the debt evidenced by the note, but insists that, where the promise to pay appears in the mortgage, such mortgage or the lien therein created is not a mere incident of the debt or a contract in writing “for the payment of money” within the meaning of the fifth subdivision of §295, supra, but that the contract in the mortgage creating such lien is an in
An examination of the cases decided by the courts of this state discloses that they do not support appellant’s contention. The mortgage involved in each of these cases was executed prior to 1881 and hence was not controlled by the statute, supra, which went in force September 19, 1881. §295, cl. 5, Burns 1914, supra; Bradley v. Spain (1893), 7 Ind. App. 694, 34 N. E. 1011. The statute governing such cases was that of 1852, which provided that actions on accounts and contracts not in writing should be commenced within six years after the cause of action had accrued, and that actions upon contracts in writing should be commenced within twenty years after the cause of action had accrued. Act of June 18, 1852, §§210, 211, 2 R. S. 1876 p. 121.
The most that any of said cases can be said to hold favorable to appellee’s contention is that though the mortgage involved in the particular case might have been barred in less than twenty years, and when the debt which it secured was barred, but for the express
The mortgage in this case, a copy of which is made part of said third paragraph of complaint, provides as follows:
“This Indenture Witnesseth, That Flora M. Tennant in her own right * * * Mortgage and Warrant to John W. Krause * * * the following described real estate, (describing it).
“Said mortgage is made to secure a certain note executed on April 1st, 1895 by said Flora M. Tennant for the sum of one hundred twenty-four 70-100 Dollars, payable to J. W. Krause, due 1st day of August, 1895, bearing 6 per cent, interest from date and signed by said Flora M. Tennant, and the mortgagors expressly agree to pay the sum of money above secured without relief from Valuation Laws.”
“In some of the states, however, the statutes limit suits in equity in the same manner as actions at law, and in those states the mortgage is held to be in effect extinguished when the mortgage debt is barred.” The court then quotes from the case of Lord v. Morris, 18 Cal. 482, in part as follows: “ ‘We do not question the correctness of the general doctrine prevailing in the courts of several of the states, that a mortgage remains in force until the debt, for the security of which it is given, is paid. We only hold that the doctrine has no application under the statute of limitations of this state. * * * Here a mortgage is regarded as between the parties, as well as with reference to the rights of the mortgagor in his dealings with third persons, as a mere security, creating a lien or charge upon the property, and not as a conveyance vesting any estate in the premises, either before or after condition broken. Here it confers no right to the possession of the premises either before or after default, and, of course, furnishes no support to the action of ejectment, or to a writ of entry for their recovery. The language of the statute is express, that it shall .not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession without a foreclosure and sale. * * * Here the statute applies equally to actions at law and to suits in equity. It is directed to the subject-matter and not to.the form of the action, or to the forum in which the action is prosecuted.’ ”
The Supreme Court then said of the California case
“It is equally well settled that in this state the debt is the principal thing and the mortgage only the incident. Hubbard v. Harrison, 38 Ind. 323; Gabbert v. Schwartz, 69 Ind. 450.
“As we have but one form of action in civil cases, our statute of limitations is applicable to all demands, whether legal or equitable, for the recovery of money. It is directed to the subject-matter, and bars all claims according to the general class to which they respectively belong. It has also been held by this court that a mortgage is inoperative when the debt is void or has been discharged. Sherman v. Sherman, 3 Ind. 337; State v. State Bank, 5 Ind. 353; Ledyard v. Chapin, 6 Ind. 320; Brisk v. Scott, 47 Ind. 279; Tate v. Fletcher, 77 Ind. 102; Bowman v. Mitchell, 79 Ind. 84.
“It follows that the rules of construction enunciated in the case of Lord V. Morris, supra, are fully applicable to the enforcement of mortgage liens in this state, carrying us to the inevitable extent of holding that when the mortgage debt becomes barred the mortgage lien ceases to be effective.” To the same effect are the cases following: Aetna Life Ins. Co. v. Finch, supra; Bridges v. Blake, supra; Post v. Losey, supra; Crawford v. Hazelrigg, supra; Nichol v. Henry, supra; Catterlin v.
The mere fact that the promise to pay is incorporated in the mortgage given to secure the debt evidenced by such promise does not change the character of the combined instrument, the mortgage, from that of the two separate instruments, the note and the mortgage, in the
We think that the legislature intended, by said sections, to enact a statute of repose, limiting the remedy of the mortgagee, and also to bar his right in the mortgage lien, after a period to be ascertained by reference to the mortgage record. This conclusion necessarily follows from the provision of §308b, supra, that the lien of such mortgages “shall cease and expire twenty years from the time the last installment of the debt secured by such mortgage becomes due,” etc.
Sections 308a and 308b, supra, can be, and in our judgment should be, construed in harmony with the rule above referred to, viz., that the barring of the debt bars the right of foreclosure. For instance, if a mortgage, containing no express promise to pay, were given merely to secure the payment of a debt evidenced by a note, the debt, and hence the mortgage, would be barred after ten years from the time the debt was due. Lilly v. Dunn, supra. The mortgagor, however, as to such debt, by making payments on the note, might toll the statute of limitations indefinitely. MacMillen v. Clements (1903), 33 Ind. App. 120, 123, 70 N. E. 997; Willette v. Gifford (1910), 46 Ind. App. 185, 190, 92 N. E. 186; Bottles v. Miller, supra. But under §§308a, 308b, supra, he could not thus extend the time when an action could be brought to foreclose, beyond twenty years from the time the last instalment of the debt, as shown by the record of the mortgage, became due, or, if the record does not show when such instalment became due, after twenty years from the date of the mortgage.
It follows from what we have said that the statute of limitations applicable to said third paragraph of complaint is the ten-year statute provided by the fifth subdivision of §295, supra, and that the trial court erred in sustaining a demurrer to appellant’s second paragraph of answer to said third paragraph of complaint. Of course, the cause of action being one to which the ten-year statute of. limitations is applicable, it would be barred in the fifteen years set up in the third paragraph of answer. The overruling of the demurrer to the second paragraph of answer however will give ap
For the reasons indicated, the judgment below is reversed, with instructions to the trial court to overrule the demurrer to said second paragraph of answer to the third paragraph of complaint, and for such other proceedings as are consistent with this opinion.
Note. — Reported in 116 N. E. 748. Limitation of actions: note barred by statute, effect on mortgage, 60 Am. St. 201, 25 Cyc 1001.