Hill v. Hilliard & Co.

Shepherd, J. This action was commenced on the 23d of February, 1888, eleven years after the forfeiture of the plaintiff’s mortgage, and the mortgagor has been in possession of lots numbers eight and nine during the whole period, and has made no payment. About nine years after the forfeiture, Ousby, the mortgagor, executed a mortgage upon his equity ■of redemption to the defendant Hilliard, and it is admitted that the property, “ outside of lots numbers eight and nine, is *38 insufficient to pay” his debt. Had anything transpired between the plaintiff and the mortgagor, before the execution of the mortgage to Hilliard, by which the running of the statute of limitations was suspended? We think not. There was no agreement, either express or implied, that the-mortgagor was not to plead the statute. , The case only shows that the plaintiff indulged him at hie “special request, having confidence in his integrity, and without apprehension that he (Ousby) would set up the statutory bar as a defence.” Very clearly this does not bring the case within the principle of Barcroft v. Roberts, 91 N. C., 363, and the authorities there cited. In that case there was a promise not to plead the statute, and the Chief Justice, commenting upon the decision, said, in Joyner v. Massey, 97 N. C., 148, that “it carries the doctrine to its extreme limits, beyond which I am unwilling to go.” There being nothing to arrest the running of the statute, the statutory bar was more than complete when the mortgagor executed to the plaintiff a writing by which he promised to pay the debt, and agreed that he would not plead the statute, either to the “ notes or said mortgage.” He now declines to plead the statute, and the question is whether his conduct, after the mortgage was barred, can have the effect of repelling the statute in so far as it affects the-defendant Hilliard. It is true that the plea of the statute is a personal one, but we think with Mr. Wood, in his work on Limitations,sec. 230, “that where the rights of subsequent mortgagees intervene, or where the mortgagor has sold the premises, an acknowledgment or payment afterwards made by the mortgagor, after the statute bar has become complete, revives [does not revive] the mortgage so as to defeat any of the rights of such subsequent mortgagee or grantee. But, so far as his own interests are concerned, he may revive the mortgage by such acts, but not so as to impair or defeat the rights of other parties, who, previous to such acts, acquired an interest in the premises. * * * It seems that when the statute has run *39 upon a prior mortgage, the holder of a subsequent mortgage, cancelled as against a mortgage out of possession, and a court of equity, upon proper proceedings to that end, will direct its cancellation on the ground of such bar.” The context fully justifies the negative words inserted in brackets, and the case of the N. Y. Life Ins. Co. v. Covert, 39 Barb., 440, cited by Wood, plainly shows the mistake of the author or printer. The opinion in the case says: “ That such being the relation between Cornell and the defendants deriving title under him, it would be inequitable and unjust to allow either, by any act or declaration, to affect the rights or interests of the others in regard to the incumbrance, either by a written acknowledgment of the debt or by part payment.” Jones on Mortgages, sec. 1509, says: “Moreover, it is held that purchasers from the mortgagor, subsequent to the execution of the mortgage, may plead the statute of limitations as a defence to an action commenced after the statute has run against the debt secured.” Lent v. Shear, 26 Cal., 16; Medley v. Elliott, 62 Ill., 532 ; Schmucker v.Sibert, 18 Kan., 110 ; Fox v. Blossom, 17 Blatchf., 352. We have no decisions upon the subject in this State, but we think the principles laid down in the authorities cited are consistent with reason and equity, and we, therefore, adopt them. The judgment below should be modified according to the views expressed in this opinion. Modified and affirmed.