166 Ill. 540 | Ill. | 1897
delivered the opinion of the court:
The 11th section of the Limitation act (Rev. Stat. 1874, p. 675,) provides: “No person shall commence an action or make a sale to foreclose any mortgage, or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrues.” This section of the statute must be construed in connection with section 16 of the statute enacted at the same time, which provides: “Actions on bonds, promissory notes, * * * shall be commenced within ten years next after the cause of action accrued; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, * * * within or after the said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.” In passing upon this Statute of Limitations in Schifferstein v. Allison, 123 Ill. 662, it was held that where a payment had been made on the mortgage indebtedness the statute commences to run from the time of the last payment. Here the mortgage debt became due on the first day of January, 1883, and under the plain terms of the statute it would become barred on the first day of January, 1893, unless the running of the statute was arrested by a payment on the mortgage indebtedness by the mortgagor or some other person who was obligated to pay the debt, or unless there was a valid promise of payment less than ten years before the filing of the cross-bill. Henry Panning, the person who owed the mortgage debt, died in November, 1881. It is not, therefore, claimed that he made any payment or promise of payment within ten years before the filing of the bill. No person was appointed administrator of the estate of Henry Panning, deceased. There was therefore no pajnnent or promise of payment by a legal representative of the estate of the mortgagor. Upon the death of Fanning, the mortgagor, the lands involved descended to his children, who were his legal heirs, subject to the dower and homestead rights of his widow, Martha Panning. As the lands descended to the children of Panning subject to the mortgage given to the insurance company, and as they were the owners, subject to the mortgage, holding title under the mortgagor and in the same way as he held the title, we are inclined to the opinion that if they had made a payment on the mortgage indebtedness, or promised payment to the mortgagee, within ten years before the filing of the cross-bill, such payment or promise would have arrested the running of the Statute of Limitations. But the heirs of Panning made no payment whatever on the mortgage indebtedness, nor did they at any time promise to pay.
It is, however, contended, that the payments made by the widow prevented the running of the Statute of Limitations. Upon the death of Panning the widow was entitled to an estate of homestead in the premises of the value of $1000, and under the statute she was entitled to dower. She had no interest in the fee, and upon her death all interest she had in the premises terminated. While she occupied the premises as a homestead she was entitled to pay the interest on the mortgage indebtedness, and if she chose to clear her homestead estate or dower right from the mortgage resting upon it she had the right to do so. At any time after the mortgage indebtedness was due she was entitled to compel the holders to accept payment. We think it is also clear that a payment of either principal or interest by the widow would operate to arrest the running of the Statute of Limitations as to any proceeding which might be instituted under the mortgage as against her interest in the premises, but we perceive no ground upon which it can be held that a payment by her, without any authority whatever from the heirs who owned the fee, could stop the running of the Statute o.f Limitations as against a proceeding which might be instituted against them for the purpose of reaching their interest in the premises. She held one interest in the property and they held another. The mortgage held by the insurance company covered both of these interests. The interests of the respective parties were separate and distinct. The widow was under no obligation to pay the mortgage debt, and no obligation rested upon the heirs to do so. Neither party was legally bound to pay, and neither could be expected to do so except for the purpose of relieving his interest in the premises from the mortgage. As no joint rights or interests were held by the widow and heirs in the property, we see no ground upon which it can properly be held that their rights should be controlled by her unauthorized acts.
In Kallenbach v. Dickinson, 100 Ill. 427, we held, after a careful review of the authorities bearing on the question, that in the case of joint debtors a partial payment by one, without the knowledge, assent or subsequent ratification of the others, will not operate to bind the latter so as to authorize the inference of a new promise on their part, and therefore will not affect the defense of the Statute of Limitations as to them. If a payment by one joint debtor without the assent or ratification of the other will not arrest the running of the Statute of Limitations, upon the same principle the payment by a life tenant without the consent of the remainder-man should not affect his rights under the Statute of Limitations. In American and English Encyclopedia of Law, (vol. 13, p. 760,) in the discussion of the subject, the author says: “An acknowledgment or a payment must be made by the debtor or his authorized agent.” Here the widow, who made the payment, was not the debtor, nor was she the authorized agent of the debtor or owner of the fee in the premises.
We have been referred by counsel for appellants to Roddam v. Morley, 1 DeG. & J. Ch. 1, Amos v. Mannering, 26 Beav. 583, and English v. Hollingshead, 37 L. R. Ch. Div. 651, as authorities sustaining their view. In the first case cited, as appears from the opinion of the court, a person died indebted on a bond in which the heirs were bound, and, having devised his real estate in strict settlement, the devisee for life entered into possession, and after keeping down the interest on the bond for about twenty years, died, and thereupon the tenant in tail in remainder came into possession. The question arose whether the bond debt was to be considered as still subsisting, so as to be enforced against the real or personal assets of the obligor, or whether the Statute of Limitations was a bar, and it was held that the payment of interest by the life tenant arrested the running of the statute. The other cases hold the same doctrine. But the English cases- all seem to proceed on the rule announced in Whitcomb v. Whiting, 2 Doug. 652, by Lord Mansfield, that the payment by one of the joint obligors is a payment by all. This doctrine, as has been seen in the Dickinson case, has not been adopted in this country, but it was expressly repudiated in that case after a review of the authorities bearing on the question. While, therefore, the English cases cited, and other like cases, seem to sustain the position of appellants, they cannot be regarded as authority in this case.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.