Colonial & United States Mortgage Co. v. Flemington

Engerud, J. On November 23, 1883, William R. Carey made and delivered to the plaintiff a mortgage of a quarter section of land owned by him in Dickey county, to secure the payment of his promissory note to the plaintiff, of even date, for $353, due November 1, 1888, bearing interest at’ the rate of 6^2 per cent per annum, and to secure five coupon notes for the annual interest on the principal note. The coupon notes bear interest at the rate of 12 per cent per annum after maturity. The mortgagor died intestate in September, 1888, seized of the mortgaged land, and left surviving him, as sole heirs, four daughters, Laura Franke, Louisa Atherton, Sophronia D. Schafer and Alice J. Rose. Mrs. Rose is now, and has been since her father’s death, a resident of this state, but the other three daughters have at all times resided in the state of Illinois. Letters of administration have never been applied for or issued on the estate of the deceased mortgagor. In June, 1902, the four heirs joined in a deed of the mortgaged land to the defendant and respondent, Alexander Flemington, and said deed was recorded August 14, 1902. On March 28, 1902, the plaintiff commenced this action against Flemington and one Schaller to foreclose said mortgage. Schaller made no answer, and it appears that he claims no right to the land. The only defense was the statute of limitations, and that defense was sustained by the trial court. The plaintiff has appealed from the judgment dismissing the action, and demands a retrial of all the issues under section 5630, Rev. Codes 1899. Many of the questions arising in this case have been disposed of by the opinion just handed down in Colonial & United States Mortgage Co. v. Northwest Thresher Co., 103 N. W. 915. We there •held that an action to foreclose a mortgage of real property was not one in rem, but was in personam against those interested in the mortgaged property adversely to the mortgage, and hence, under section 5210, Rev. Codes 1899, the absence from the state of the person against whom the cause of action accrued tolled the statute as to him during his absence. We also held that the right to foreclose the mortgage might be barred, even though the debt existed, and the remedies for the collection of the debt from those personally liable therefore were not barred. In this case, as in the Thresher Co. case, the appellant contends that the land passed -to the heirs' subject to the mortgage, and therefore became a primary fund for the payment of the mortgage [186] debt for the protection of the estate of the deceased mortgagor against liability for the debt, and hence neither the heirs nor their grantee could plead the statute as long as the debtor’s estate is liable on the debt. For the reasons stated in the case cited, this contention is overruled. It is therefore immaterial to this ¡case to determine what effect the failure to have an administrator appointed had upon the right of the mortgagee to collect the debt from the estate of the deceased debtor. Both parties agree that the heirs were necessary parties defendant in an action to foreclose this mortgage, if the action had been commenced before the conveyance to respondent. The four heirs succeeded to the deceased mortgagor’s title before the mortgage debt was due, and held the title continuously from that time until June, 1902. The cause of action aocrued in November, 1888. As to the undivided one-fourth of the land which descended to Alice J. Rose, the statutory bar was complete in November, 1898. The absence from the .state of the other three heirs prevented the statute from running in their favor as to the undivided three-fourths of the land which they inherited. It follows that the respondent’s plea must be sustained as to an undivided one-fourth of the land, and that the appellant is entitled to the relief demanded to the extent of the remaining three-fourths of the land. There being no dispute as to the facts, it is a mere matter of computation to determine the amount due on the mortgage. Interest will be computed on the principal note from November 1, 1888, at the rate of 6 per cent per annum, simple interest, without annual rests. In the absence of a provision to the contrary, the note bears the same rate after maturity as before. Rev. Codes 1899, section 4068. The provision that the interest is payable .annually only relates to the interest accruing before maturity. Interest on the three unpaid coupons will be computed in like manner at the rate of 12 per cent per annum from the maturity of the respective coupons. To. the amount due on the note and coupons will be added the sums paid by the plaintiff for taxes on said premises as set forth in the complaint, and interest will be computed on the several sums so paid from the dates of the respective payments at the rate of 6J4 per cent per annum. The appellant is entitled to the taxable costs and disbursements of both courts against respondent. [187] The cause is remanded to the district court, which will set aside the judgment appealed from, and render a judgment in accordance with this opinion. Morgan, C. J., concurs.