52 Ind. App. 98 | Ind. Ct. App. | 1912
Action begun by appellee’s decedent against Arthur. Weidenhammer and others for the foreclosure of three several mortgages, one of which does not affect appellant Weidenhammer’s property. The other two mortgages were executed on different days in the year 1892 by said appellant’s mother, Nellie Weidenhammer, on property then owned by her, to secure the payment of certain notes which she alone signed. Her husband, Lesher' Weidenhammer, who is living, and was made a defendant in this action, joined with her in executing said mortgages. She died on March 26, 1893, three days after said appellant’s birth, and he, therefore, is a minor. To the complaint said appellant’s guardian ad litem answered the statute of limitations. To this answer appellee replied alleging partial payments made by said appellant’s father, Lesher Weidenhammer, who at the time of the alleged payments was a tenant in common with said appellant of the real estate affected by said mortgages. Said appellant and appellee agree that the important question is whether after the death of the mother the
Appellee in his brief admits the law to be as follows: “That an action on a promissory note dated subsequent to September 19, 1881, is barred in ten years after it accrues; that, when the debt secured by a mortgage is barred, an action upon the mortgage is also barred; that the debt secured is the principal thing and the mortgage only an incident, and as a necessary corollary to this, that the life of one is always co-extensive with the life of the other; that an action upon a mortgage containing a promise to pay the debt thereby secured is governed by the ten-year statute of limitations; that the only methods of tolling the statute of limitations, in actions upon notes or to foreclose mortgages, are to show an acknowledgement or promise in writing or a payment, executed or made by a party having authority to bind the person pleading the statute and who is sought to be charged in the action; that the law, which attaches to a payment the effect of tolling the statute of limitations, is not statutory, but is the common law, being the result of judicial decisions running throughout English history; that the principle upon which this doctrine of payment is based, is that, from the fact of part payment, the law raises an implied,promise to pay the residue; that such doctrine of implied promise can not be applied to the appellant, who is a minor and who made no payments; that the appellant being in privity with his mother, both in person and estate, has the right to plead the statute of limitations in this case.” But while conceding these points, appellee argues that since the lien of appellee continued to exist for the' full sum of
In the case of Metzger v. Huntington (1894), 139 Ind. 501, 37 N. E. 1084, 39 N. E. 235, our Supreme Court said: “It is true that a tenant in common may act as agent for the other owners; but his being a tenant in common and in possession does not of itself make him agent to incumber his co-tenants’ interests, still less to impose a personal obligation upon them. There is’no such implied agency. Mechem, Agency §71; Thompson v. Bowman [1867], 73 U. S. (6 Wall.) 316 [18 L. Ed. 736].”
The court erred in overruling said appellants’ demurrer to appellee’s second paragraph of reply, and the decision of the court is contrary to law. The complaint is sufficient as against the objections urged. Other alleged errors argued will not likely occur at a new trial.
Judgment reversed, and cause remanded for new trial.
Note.—Reported In 98 N. E. 883. See, also, under (3) 22 Cyc. 514, 539; (4) 25 Cyc. 1392; (5, 7) 38 Cyc. 101. As to acknowledgment of new promise to suspend the running or remove the bar of the statute of limitations, see 102 Am. St. 751. As to contracts with infants, and their ratification or disaffirmance, see 18 Am. St. 639.