Fraser v. . Bean

Merrimon, J., (after stating the facts). In equity, the mortgage of the land in question was simply a security for the debt to the mortgagee, secured by it. Although the legal title to the land was in the latter, the mortgagor had in his life-time the equitable estate, which he had not disposed of at the time of his death, and which descended to his heirs at law They stood, as to the land and mortgage, in the place of their ancestor, and the plaintiffs’ remedy by a foreclosure of the mortgage, was directly against them, whatever additional remedy they may have against the administrator, and without regard to the right of the heir to have the mortgage debt paid out of the personal estate of the intestate. The cause of action — the right of the mortgagee to foreclose the mortgage — survived against the heir, not against the administrator. Hence the latter was not a necessary party, as was decided in Averett v. Ward, Bus. Eq., 192. The statute of limitation {The Code, §152, par. 3,) provides, that actions to foreclose a mortgage like the one under consideration, must be brought “ within ten years after the forfeiture of the mortgage,” if the mortgagor has been in possession of the property, and when no part of the mortgage debt has been paid, as in this case. So as more than ten years elapsed next after the forfeiture of the mortgage *330 in this case, and before the commencement of this action, it is very obvious that if the mortgagor had been alive at the time it was begun, and it had been brought against him to foreclose the mortgage, he might have availed himself of the statute of limitation; and as his heirs stand in his place as to the cause of action of the plaintiffs — their right to foreclose the mortgage — they may do likewise, just as the administrator might do in a similar case, when an action is brought against him upon a debt due from his intestate, barred by the statute of limitation. This is so, because the cause of action survives against them, and involves the estate that descends and belongs to them, subject to the charge of the plaintiffs’ mortgage debt upon it. It should be observed that this statute of limitation bars the action to foreclose the mortgage — it is not a bar to an action to recover the money due upon the debt that is embraced by the mortgage and which it was intended to secure. The mortgage is but a security for the debt, and the right of action to enforce this is what is barred. The complaint as to the defendant Corpening, simply alleges that he was in possession of the land, and he admits in his answer that he was, but he does not plead the statute of limitation. The appellants’ counsel insisted in the argument, that the Court ought not, therefore, to have given judgment in his favor. That it did, is not assigned as error in the record. Moreover, it seems that by common consent of parties, the right of the plaintiffs was made to turn upon the question of the statute of limitation. Hence all other defences were waived. It so appears in the record. As to what effect the bar of the plaintiffs’ action to foreclose the mortgage, will have upon the right of the administrator to have a license to sell the land to make assets to pay debts, including the judgment the plaintiffs obtained against the administrator in this action, we express no opinion. Judgment affirmed. No error. Affirmed.