Willard v. WoodWillard v. Wood
after stating the case, delivered the opinion of the court. ■
. The-action of covenant brought by Willard against Wood, December 30, 1884, was heard by the Supreme Court of 'the-District of Columbia in general term in the first instance, and it was held that the acceptance by Wood of the deed of .Dixon to him created no specialty obligation, on the part of Wood, though he might be held liable on it in assumpsit, as on a simple contract, and that the act of limitations of the District barred such action because brought more than three-years after the cause of action accrued.
The case being brought on writ of error to this court, it was ruled that whether an agreеment by the grantee of a mortgagor to assume the mortgage debt could be enforced at law or in equity was governed by the law of the place where the action was brought, and that by the law of the .District of Columbia, whether such an agreement was or was not considered as under seal, it was an agreement made with the grantor only, and created no direct obligation to the mortgagee upon which the latter could sue at law. If the agreement of the grantee was considered under seal, by reason of the deed being sealed by the grantor, it fell within the settled rule in force in the District of Columbia, that no one could maintain an action at law on a cоntract under seal, to which he was not a party; and if the agreement of the grantee was considered as in the nature of assumpsit, implied from his acceptance of the deed,
“
still, being made with the .grantor only and for his benefit, upon a consideration moving from him alone, there being no privity of contract between the grantеe and the mortgagee, and the latter not having known
In
Keller
v. Ashford, above referred to, it was held that although the contract of the purchaser to pay the mortgage, being made to the mortgagor and for his benefit onhr, created no direct obligation of the purchaser to the mortgagee, yet that in a court of equity the mortgagee may avail himself of the right of the mortgagor against the purchaser upon the familiar principle in equity that a creditor shall have the benefit of any obligation or security given by the principal to the surety for the payment of the debt. And it was said: “ The doctrine of the right of a creditor to the benefit of all securities given by the principal to the surety fdr the payment of the debt does not rest upon any liability of the principal to the creditor, or upon any peculiar relation of the surety towards the creditоr; but upon the ground that the surety, being the creditor’s debtor, and in fact occupying the relation of surety to another person, has received from that person an obligation, or security for the payment of the debt, which a court of equity will therefore compel to be applied to that purpose at the suit of the crеditor. Where the person ultimately held liable is himself a debtor to the creditor, the relief awarded has no reference to that fact, but is grounded wholly on the right of the creditor to avail himself of the right of the surety against the principal. If the person, who is admitted to be the creditor’s debtor stands, at the time of receiving the security, in thе relation of surety to the pers.on from whom he receives it, it is quite immaterial whether that, person is or ever has been a debtor of the principal creditor, or whether
After citing many cases and quoting from
Crowell
v.
St. Barnabas
Hospital, 12 C. E. Green, 650, 655, the opinion continued (p. 625):
“
The decisions of this court, cited' for the defendant, are not only quite consistent with this conclusion, but strongly tend to define the true position of a mortgagee, Avho has in no way acted on the faith of, or otherwise made himself a party to, the agreement of the mortgagor’s grantee to pay the mortgage; holding, on the one hand, that such a mortgagee has no greater right than the mortgagor has against the grantee, and therefore cannot object to the striking out by a court of equity, or to the release by the mortgagor, of such an agreement when inserted in the deed by mistake;
Elliott
v. Sackett,
The Court of Appeals rightly held that remedies are determined by the law of the forum; that Wood’s liability by reason of his acceptance of Dixon’s deed was subject to the limitation prescribed as to simple contracts; and' was barred by the application in equity, by analogy, of the bar of the statute at laAV.
We also concur with the Court of Appeals that the bill was effectually dismissed as against the estate of Wood on the 5th of January, 1885. That court held thаt there could be no doubt that it Avas the intention of plaintiff by the order of that date to dismiss the bill as to the representatives of Wood’s estate, and that it was supposed at the time to have been
The proceedings show that Mrs. Wood was regarded as the sole representative, she only having administered; and the attempts by.filing a replication July 1,1890, without leave of court, to the answer filed by Wopd, who had then been . dead nearly eight years, and by filing a paper signifying the withdrawal of the direction to dismiss the bill, July 31, 1890, also without leave of. court, were unavailing in the premises.
But it is insisted that, conceding the remedy as to Wood Avas barred, it does not folloAV that Bryan Avas entitled to avail .himself of that bar, since the right was not extinguished ; that Bryan joined in the execution of the deed of Wood, and thereby expressly agreеd to pay the balance due on the mortgage ; that this was an absolute promise to pay and not merely a contract of indemnity; and that it could be proceeded on as a specialty irrespective of whether the remedy on Wood’s contract with Dixon was barred in the District or not.
It is not denied that the enforcement of the contract Avas open to all defences existing between Wood and Bryan.
Episcopal City Mission
v. Brown,
“No bill, bond, judgment, recognizance, statute merchant, or of the staple, or other specialty whatsoever, except such as shall be taken in the name or for the use of our sovereign lord the king, his heirs and sucсessors, shall.be good and pleadable, or admitted in evidence against any person or persons of this province, after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve years’ standing; saving to all persons that shall be under the aforementioned impediments of'infancy, coverture, insanity of mind, imprisonment, or being beyond the sea, the full benefit of all such bills, bonds, judgments, recognizances, statutes merchant, or of the staple, or other specialties, for the space of five years after such impediment removed, anything in this act before mentioned to the contrary notwithstanding.” 1 Kilty’s Laws of Maryland.
This section was peculiar to the State of Maryland, and in effect went to the cause of action. In some aspects it has often received the consideration of the courts of that State. Some of the decisions are referred to by Chief Justice Alvey
in Mann
v. McDonald, 22 Wash. Law Rep. 98, and it is there said: “ Unlike the construction that has been placed upon the terms of the statute employed in the second section, in regard to simple contract debts, the construction uniformly placed on the terms employed in the sixth section in regard to judgments, recognizances and specialties of various kinds, owing to the peculiar force and prohibitory nature of the language employed in this latter section, has been different, and unyielding to circumstances that would remove the bar of the statute as applied to simple contract debts; hence it has been uniformly held that a' mere acknowledgment of the debt due on judgment, or even'an express promise to pay the same, will not arrest the running of the statute, or remove the bar, as against the judgment or specialty mentioned in the act; though such judgment or specialty may form the basis or inducement to a new express promise to pay, upon which an action may be maintained.
Lamar
v.
Munro,
10 G. & J. 50 ;
The saving clause of the section relates to creditors only, and by section 466 of the Kevised Statutes of the District all exceptions in favor of parties beyond the District were repealed. Hоwever, as this sixth section of the act of 1715 was not pleaded we need not consider whether its benefits are denied to non-resident debtors by the fourth and fifth sections relating to “persons absenting the province, or wandering from county to county,” or by the act of November, 1765, c. 12, as to persons who “may be absent out of this province, at the time when the cause of action hath arisen or accrued,” Kilty’s Laws;
Hysinger
v.
Baltzell,
3 G. & J. 158;
Maurice
v.
Worden,
But it is well to observe that this covenant was entered into in the District between residents thereof, and, although its performance was required elsewhere, the liability for non-performance was governed by the law of the obligee’s domicil, operating to bаr the obligation, unless suspended by the absence of the obligor.
The general rule in respect of limitations must also be borne in mind, that if a plaintiff mistakes his remedy, in the absence of any statutory provision saving his rights, or where from any cause a plaintiff becomes nonsuit or the action abatés or is dismissed, and, during the pendency of the actiоn, the limitation runs, the remedy is barred.
Alexander
v.
Pendleton,
The deed of Wood to Bryan was executed March 14, 1874, and at that time the mortgage bond was overdue, having matured, according to its terms, July 7, 1873, but interest up to February 1, 1874, had been paid on it by Wood. Bryan’s obligation to Wood was to pay forthwith, or within a reasonable time, a distinction of no importance here, and lapse of time and changes in condition began immediately to affect it.
Frederick L. Christmas, the owner of the bond, was then living. He accepted interest for two years thereafter, but this was not paid by either Wood or Bryan, and if such payment operated as an extension of time, it does not аppear to have been with the assent of either of them.
Brjmn sold within a few days of his purchase, and conveyed to Palmer, the deed being recorded in Kings County, April 9, 1874, and Palmer covenanted to pay the outstanding balance. To the foreclosure proceedings Christmas did not make Wood and Bryan parties, or either of them, but made Palmer a defendant, though asking a deficiency decree against Dixon only.
Wood gave. seventeen thousand dollars for the property, but its value had been gradually declining, and it was bid in December 10, 1877, at the foreclosure sale by the heirs of Christmas for $5000, the testimony showing that eight, thousand dollars was then a fair price.
Palmer died in 1878 or 1879, being reputed to have parted with “ most of his estate.”
The various law suits which had been previously commenced, except the action of covenant of December 30, 18S4, against'
The bill was filed July 15, 1881, against Wood and Bryan, as alike liable to Christmas as principal debtors, and service of process was had on Wood only, August 18, 1881. The mere fact that the bill was left on the files would not, in itself, relieve from the effects of laches, for failure in diligent prosecution may have the same consequences as if no suit has been instituted.
Johnston
v.
Standard Mining Co.,
Nearly sixteen years had elapsed sinсe Bryan entered into the covenant with Wood, when, on March 10, 1890, over eight years after the issue of the first subpoena, alias process was issued against Bryan and service had. For seven years of this period he had resided in the District. For seven years he had been a citizen of Illinois as he still remained. By the law of Illinois the mortgageе may sue at law a grantee, who, by the terms of an absolute conveyance from the
mortgagor,K
assumes the payment of the mortgage debt.
Dean
v.
Walker,
107 Illinois, 540, 545, 550;
Thompson
v.
Dearborn,
107 Illinois, 87, 92;
Day
v.
Williams,
112 Illinois, 91;
Union Life Insurance Co.
v.
Hanford,
In the meantime Dixon had been discharged in bankruptcy and had died ; Palmer had also departed this life, leaving but little if any estate; Wood had deceased, his estate been distributed, and any claim against him had been barred; and the mortgaged property had diminished in value one half and had passed into the ownership of Christmas’ heirs. In view of the laches disclosed by this record, we do not think the equitable jurisdiction of the court ought to be extended to enforce .a covenant plainly not made for the benefit of Christmas, and in respect of which he possessed no superior equities. The сhanges which the lapse of time had wrought in the value
Affirmed.