McMillan v. McCormick

Mr. Justice Scholeield delivered the opinion of the Court: Henry H. Walker executed a mortgage, with a power of sale, on the 18th day of November, A. D. 1868, to Gerhard Foreman, to secure the payment of a promissory note for $20,000, with interest at the rate of seven per cent per annum, payable two year-s after that date. Appellant Thomson purchased a part of thé land included in the mortgage, at a sheriff’s sale, under a judgment rendered on the 14th day of September, A. D. 1874, and appellant McMillan.purchased another part of the land included in the mortgage, at a sheriff’s sale, under a judgment rendered in July, A. D. 1875. On the 3d day of October, A. D. 1884, the trustee advertised that the land would be sold on the 8th day of November, A. D. 1884, pursuant to the power in the mortgage, for the payment of the indebtedness thereby secured. This bill was filed on the last named day to enjoin that sale. The principal ground relied on is, that the time when the sale is advertised to be made is more than ten years after the right to make the sale accrued, and that the sale is therefore barred by the 11th section of the act in regard .to limitations, in force July 1, A. D. 1872. That section is: “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 accrued. ” The 24tli section of the same act, however, after repealing the several acts in regard to limitations previously in force, concludes thus: “But this section shall not be construed so as to affect any rights or liabilities, or any cause of action, that may have accrued before this act shall take effect. ” (2 Gross’ Stat. 1873, pp. 258, 259.) In the revision of 1874 this section is omitted, and in chapter 131, section 5, the former statutes of limitations are repealed, with this saving clause: “When any limitation law has been revised by this or the Twenty-seventh General Assembly, and the former limitation law repealed, such repeal shall not be construed so as to stop the running of any statute, but the time shall be construed as if such repeal had not been made. ” In Dickson v. Chicago, Burlington and Quincy Railroad Co. 77 Ill. 331, we held that the above words, “this section,” should be construed to mean, “this act, ” so that the section would read, “but this act shall not be construed so as to affect any rights or liabilities, ” etc. In Means et al. v. Harrison, Exr. 114 Ill. 248, we held that a promissory note executed on January 25, A. D. 1872, payable two years after date, was not, on the 15th day of October, A. D. 1884, when suit was brought, barred by the 16th section of this act, which requires that actions on promissory notes shall be commenced within ten years next after the cause of'action accrued, but that the case was governed .by the act of the 5th of November, A. D. 1849, which was in force when the note was executed. It was, among other things, there said, after construing the saving clause to the effect that it extended to notes that had been executed but which were not yet due when the act took effect: “This construction is in accord with the general rule that a statute is to operate in futuro only, and it is not to he construed to affect past transactions, and that if it is left doubtful what was the real design as to its having a prospective or retroactive effect, the statute must be so construed as to have a prospective effect only. Thompson v. Alexander, 11 Ill. 55; Dobbins v. National Bank, 112 id. 553.” It is conceded that that case would be conclusive on the question of limitation here, had mortgages been specifically named in any preceding limitation act, but it is contended they are not so named, and therefore the case is governed by Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 id. 216, where it was held that the construction given in Dickson v. Chica go, Burlington and Quincy Railroad Co. supra, to the same clause of section 24, was applicable only to cases included in previous limitation acts, but that it did not apply to cases not included in such acts, and therefore, as to such cases, the periods of limitation specified in the act in force July 1, 1872, must be applied. It is true the words, “mortgages and deeds of trust, ” do not occur in any act of limitation previous to that in force July 1, 1872; but this court has held that such instruments were' barred by limitation laws previously to the act on that subject adopted in 1849, and by that act, since its adoption, both in proceedings in equity and in actions at law. Where there is a covenant in the mortgage or deed of trust for the payment of the debt, which is perhaps rarely the case, it can need no argument to show that the instrument would be in nowise, so far as affects this question, different from any others specially for the payment of money, and therefore the statute of limitations applicable to instruments of that character in general, would be applicable to it. But as to mortgages or deeds of trust which are not given as being themselves obligations for the payment of debts, but simply as pledging property for the payment of debts evidenced in some other way, a different .question is presented. In Harris v. Mills et al. 28 Ill. 44, it was held, in a proceeding to foreclose a mortgage, that where the note for the security of which the mortgage was given is barred by the Statute of Limitations, so that there could be no. recovery thereon in an action at law, the right to foreclose is also barred, and this was said to be because it is held that the debt is the principal thing, and the mortgage is but the incident. The consideration which supports the note supports the mortgage. An assignment of the note operates ipso facto to transfer the mortgage, and a payment, release or other discharge of a note satisfies and releases the mortgage. In Pollock et al. v. Maison et al. 41 Ill. 516, ejectment was brought by a grantee of the mortgagee against the heirs at law of the mortgagor, and it was there held that the debt secured by the mortgage being barred, there could be no recovery. The court, among other things, said: “The notes were barred by the statute at the expiration of sixteen years after their maturity, and the bar to the debt having become complete; plaintiff in error had a right to interpose that bar to prevent a recovery in ejectment.” Of course the ejectment was not a suit for foreclosure, but' it was a legal mode of enforcing rights of the mortgagee under the mortgage, and if the mortgage was not barred at law, the mortgagee was entitled to recover. The case shows that the Statute of Limitations of sixteen years was held a good defence in an action at law on a mortgage given to secure the payment of a promissory note. In Medley et al. v. Elliott et al. 62 Ill. 533, the above cases were cited with approval, and in discussing what period of. limitation applied in that case, it was said, after quoting from Chancellor Kent’s opinion in Jackson v. Willard, 4 Johns. 40: “Until foreclosure, or at least until possession taken, the mortgage remains in the light of a chose in action. It is but an incident attached to the debt, and in reason and propriety it can not, and ought not, to be detached from its principal. The mortgage interest, as.distinct from the debt, is,,not a fit subject Of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond. ” It was added: “It naturally follows that the Statute, of Limitations, which bars the debt, the principal, can alone bar the' mortgage, the incident. ” Emory v. Keighan et al. 88 Ill. 482, and the same ease again in 94 Ill. 482, was ejectment, and follows Pollock v. Maison, supra. Other cases of like character might be referred to, but it is unnecessary. This is sufficient to show that before the enactment of the section under consideration it was the settled law of this State that mortgages were, within the Statute of Limitations, and barred thereby. The ruling assumed that it is not necessary that the word “mortgage,” or “deed of trust” shall be expressed in the statute; that when .the principal thing is named, that which is incident to it is necessarily implied, and that inasmuch as the mortgage or deed of trust is but an incident to the debt, and can have no existence as an obligation or conveyance independently of the debt,—or, in other words, that as it is merely an aid or instrumentality in the collection of the debt,—any proceeding through or by means of it is just as much intended by the statute as actions of debt, covenant or assumpsit. And hence when it was enacted the debt was barred in sixteen years, it was meant and intended the mortgage, or deed of trust securing it, was also, by the same words, barred in sixteen years. In naming the principal thing its incident is included. We feel constrained, therefore, to hold that the case is not analogous to Hyman v. Bayne, and Gridley v. Barnes, supra, and that in principle it is not distinguishable from Means v. Harrison, supra. There is an allegation in the bill “that a large and valuable portion of the lands conveyed by said trust deed, other than the lands of the complainants, has been released by said trustee.” When this was done is not alleged. If it was done before the rights of complainants attached, it is plain that it does not concern them. If it was done since their rights attached, but without actual notice of them, they are not entitled to complain. (Iglehart v. Crain, 42 Ill. 261.) It was incumbent on the complainants to affirmatively allege a state of case entitling them to relief. We perceive no cause to disturb the judgment of the Appellate Court. It is affirmed. Judgment affirmed,.