Cook v. Stellmon

BUDGE, J. On September 13, 1909, respondent Andrew Stellmon and his wife executed their promissory note in the sum of $4,700 and delivered the same to appellant, together with a real estate mortgage securing payment of the note. By its terms the note was to mature five years after date, and provided for the payment of interest annually, at the *436 rate of seven per cent. Some months before the date of maturity of the note appellant communicated with Stellmon by letter and advised that the mortgage could be taken up when due or allowed to run longer, as it suited Stellmon, who replied, in substance, that he would leave the matter of payment to appellant, but that if he made payment he would have to remortgage the place in order to get the money. Appellant and Stellmon then agreed by further correspondence that the indebtedness might be kept alive by Stellmon’s continuing to pay interest on the obligation, and if appellant desired payment of the principal he would be entitled thereto after the giving of one year’s notice and if Stellmon desired to make payment he should give appellant like notice of one year. Stellmon’s wife did not sign any of the letters covering the negotiations for the postponement of the date of payment of the original obligation, but regular payments of interest were made to appellant every year from 1910 to 1922, inclusive, by checks drawn by Stellmon made payable to the Farmers State Bank of Nez Perce and by the bank, under Stellmon’s direction, transmitted to appellant either by indorsement of the checks or by its cashier’s check or bank draft, except in the year 1920 when Stellmon drew a check payable to the order of appellant and requested the bank to forward it as payment of the interest then due, which request was complied with by the bank and the check received and cashed by appellant. In 1923 appellant was informed that the Stellmons would refuse to pay their indebtedness, and he thereafter brought this action to foreclose the mortgage. The principal defense relied upon by respondents was that the action was barred by the provisions of C. S., sec. 6609, for failure' to bring it within five years after the note was due by its terms, and that the agreement for the postponement of the time of payment of the indebtedness did not toll the statute of limitations for the reason that Stellmon’s wife never joined in the execution of any writing in regard thereto, and that the payments of interest in the manner hereinbefore recited did not continue the original obligation. *437 The property covered by the mortgage was community property occupied by the Stellmons as a residence, and at the time the note and mortgage were given it was necessary, in order to bind the community or to create a lien against the community property used or occupied by the husband and wife as a residence, for the wife to join with the husband in the execution of any instrument conveying or encumbering such property. The agreement between Stellmon and appellant to postpone the date of payment of the indebtedness created no further encumbrance on the property than already existed. It neither enlarged nor diminished the Original obligation; it simply postponed the time of payment of the debt. (Investment Securities Co. v. Manwarren, 64 Kan. 636, 68 Pac. 68.) Conceding that Stellmon’s wife had no knowledge of the letters written by her husband acknowledging the debt and the agreement with appellant postponing the date of payment, would that fact render their obligation subject to the bar of the statute of limitations (C. S., sec. 6609), or did the written agreement between Stellmon and appellant toll the statute as to the community? Under the provisions of Rev. Codes, sec. 2686, in force at the time the note and mortgage were executed, the husband had the management and control of the community property, except as to the power of disposition of that part of the common property used or occupied by the husband and wife as a residence. He was the community agent. (Catlin v. Mills, 140 Wash. 1, 247 Pac. 1013, 1014.) In agreeing with appellant to postpone the time of payment of the indebtedness, Stellmon represented the community, and what he did was for the benefit of the community. From the date of the creation of the indebtedness, by the execution of the note and mortgage, Stellmon made payments upon the community obligation, and bound the community when he made the payments through the bank, which acted as his agent. Payments made by the bank were payments of Stellmon, and when he drew his individual checks therefor it was on behalf of the community and for its benefit. The community received the *438 money and owes the debt. Since Stellmon acted as the representative of the community in entering into the written agreement with appellant postponing the date of payment of the indebtedness, such action, coupled with annual payments of interest on the principal obligation, operated as a sufficient acknowledgment under C. S., sec. 6631, and removed the bar of the statute of limitations against the debt. (Fuller v. McMahan, 64 Kan. 441, 67 Pac. 828; Investment Securities Co. v. Manwarren, supra.) The statute of limitations being tolled against the note, appellant’s mortgage lien stands unimpaired. (Law v. Spence, 5 Ida. 244, 48 Pac. 282; Kelly v. Leachman, 3 Ida. 629, 33 Pac. 44; Jackson v. Longwell, 63 Kan. 93, 64 Pac. 991; Kirk v. Andrew, 78 Kan. 612, 97 Pac. 797.) From what has been said it follows that the judgment of the trial court must be reversed, and it is so ordered, with directions to enter a judgment and decree of foreclosure of the mortgage in favor of appellant, to whom costs are awarded. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.