Schifferstein v. Allison

Mr. Justice Scholfield delivered the opinion of the Court r Section 11, of chapter 83, of the Revised Statutes of 1874, provides, that “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 accrues.” The question is, where payments have been made on the indebtedness secured- by the mortgage, after its maturity, does the time contemplated by this section only commence to run after the last payment ? The 16th section of the same act is: “Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action. accrued; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, bill, lease, contract or other written evidence of indebtedness, within or after the said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.” i The general doctrine, often repeated in this court, is, that the debt is the principal thing, and the mortgage but the incident, and hence that payment and satisfaction of the debt extinguishes the mortgage; and also, before the passage of section 4, that when the debt was barred by limitation the mortgage was also barred. And in McMillan et al. v. McCormick, 117 Ill. 79, we held that this section was within the saving clause of the 24th section of the same chapter, which provides: “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.” It was there contended, that mortgages not being specifically named in any preceding limitation act, the case should be governed by Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 id. 216, wherein it was held that the proviso quoted did not apply to cases not specifically named in preceding limitation acts; but we held, that though the words “mortgage” and “deed of trust” were not specifically named, they were in fact included in preceding limitation acts. as inseparable incidents to the debts named in those acts. / The effect of section 11, read in connection with section 16, is, in our opinion, but to express what the law before implied, namely, that the period of limitation which bars the debt, bars also the mortgage or deed of trust.__l An ordinary mortgage or deed of trust is not an evidence of indebtedness. No cause of action or right to foreclose can accrue under a mortgage or deed of trust alone, except in the extremely rare case that it contains a covenant to pay,—and even then the covenant will be a feature independent of and separable from the mortgage proper. The mortgage or deed of trust confers, not upon its holder, but upon the holder of the debt, the right to resort to the property described, for its payment, and so it is impossible that an action or right to make a sale shall accrue unless it shall accrue under the debt. What, therefore, the word “accrue” means in the 16th section it must mean in this section,—the two must be construed together; and thus construing them, it is quite apparent that the cause of action or right to make sale is to be regarded as having accrued after the last payment indorsed upon the indebtedness. This same word “accrued” occurs in other sections of the Limitation act, but it has always been held that the cause of action is to be deemed as having accrued after the occurrence of that which is held to revive the cause of action. See Sennott, Admx. v. Horner, 30 Ill. 429; Norton v. Colby, 52 id. 202; Kallenbach v. Dickinson, 100 id. 427. The judgment is affirmed. Judgment affirmed.