Von Campe v. City of Chicago

Mr. Chief Justice Magruder delivered the opinion of the Court: The mortgages, which this bill was filed to foreclose, are dated April 1, 1848, and were executed when the limitation law of 1845 was in force. The interest on each of them was paid up to August 1, 1876, but since the latter date no interest fias been paid, either by the original mortgagor, or any of his grantees. August 1, 1876, is conceded to be the date of the default in the payment of the interest. The main defense made is, that this suit is barred by section eleven of the Limitation Act of April 4, 1872, inasmuch as the bill was not filed until nearly thirteen years after the cause of action accrued. Section 11 is as follows : “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.” Section 24 of the same Act provides as follows: “But this section shall not be construed so as to affect any rights, or liabilities, or any causes of action, that may have accrued before this Act shall take effect.” The words, “this section, ” as used in section 24, are to be construed as meaning “this Act.” (Dickson v. C., B. & Q. R. R. Co. 77 Ill. 331.) If these mortgages had been given to secure promissory notes dated April 1, 1848, and if such notes had not matured, or a right to sue upon them had not accrued, until April 1, 1876, they would be governed by the limitation law of 1845, and not by that of 1872. The right of the holder to sue upon each of such notes and the liability of the maker to be sued ■ upon each of them at any time within sixteen years after the ■cause of action should have accrued thereon, would have ex-listed at the date of their execution on April 1, 1848, and would not have been affected by the Act of 1872. Such was the intention of the legislature as expressed in the saving clause of section 24. It was so decided in Means v. Harrison, 114 Ill. 248, where the difference in meaning between the words, “rights or liabilities,” and the words, “causes of action',” is pointed out and commented upon. It has been held, that section 24, as above construed, is applicable only to cases included in previous limitation Acts, and that the periods of limitation specified in the Act of 1872, must be applied to cases not included in such previous Acts. (Hyman v. Bayne, 83 Ill. 256; Gridley v. Barnes, 103 id. 211; McMillan v. McCormick, 117 id. 79; Schifferstein v. Allison, 123 id. 662.) In McMillan v. McCormick, supra, it was decided that mortgages were embraced within the meaning of the Acts of limitation which had been in force before the Act of 1872 was passed, and were barred by such previous laws, upon the ground that the mortgage was a mere incident to the debt, and that, where a note, or bond, the payment of which was secured by a mortgage, was barred by the statute, the mortgage itself would also be barred. In that case we said: “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.” (Medley v. Elliott, 62 Ill. 532.) So, again, in Schifferstein v. Allison, supra, we said, “that, though the words “mortgage” and “deed of trust” were not specifically named, they were in fact included in preceding limitation Acts as inseparable to the debts named in those Acts.” (2 Jones on Mtges. sec. 1207.) In the case at bar, however, the mortgages do not describe any notes, or bonds, or recite that they are made to secure any notes or bonds; nor, in fact, is the indebtedness named in them evidenced by any notes, or bonds, or other written instruments, except the mortgages themselves. It has been said, that, where the mortgage contains a covenant for the payment of the debt, “the instrument would be in nowise, so far as effects 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.” (McMillan v. McCormick, supra.) Any words, such as “I covenant,” “I agree,” “I bind myself, ” plainly showing an intent to be bound, raise an express covenant. Here, in each of the mortgages, the mortgagor acknowledges himself to be indebted to the city in a certain sum with interest payable on certain days, “being for the amount agreed to be paid by” him to the City for a deed of the premises therein described. There is also a proviso that, if the mortgagor or his assigns shall well and truly pay such indebtedness to the city, then “these presents shall be absolutely null and void.” It is questionable whether all the words of the mortgage construed together can be regarded as. amounting to a covenant to pay the debt named in the mortgage. But if they could be so regarded, it is nevertheless true, that such covenant cannot possibly impose any personal liability upon the mortgagor under the terms of the mortgage and of the stipulation appended to it. It is expressly agreed, that no property of the mortgagor or his assigns, except that described in the mortgage, shall he subject to the payment of the indebtedness therein named, and that no suit shall be brought against him or his assigns for the recovery of said indebtedness, except so far as may he necessary to enforce the lien of the mortgage Upon the property therein described. (2 Jones on Mtges. sec. 1225). The language of the stipulation deprives the city or its assigns of any remedy, or form of action, except ejectment or a bill to foreclose, or a proceeding by scire facias. The mortgage and stipulation secure no personal obligation of the mortgagor, but relieve him of all personal obligation. There is no indebtedness specified in the mortgage, nor any evidence of indebtedness created by it, upon which an action at law can he "brought. There is no debt which can be considered as the principal, to which the mortgage is an incident. The scire facias, authorized by the Act of 1845 in relation to judgments and executions, and by the Mortgage Act of 1874, is not an .action in the ordinary sense of that term, but a proceeding. in rem. Where the mortgage secures notes, the scire facias is sued out upon the record of the mortgage, and not upon the notes. (Menard v. Marks, 1 Scam. 25; Bourland v. Kipp, 55 Ill. 376). None of the limitation Acts, which preceded the Act of 1872, ■apply to mortgages, such as those now tinder consideration, which do not secure personal obligations, or provide for personal liabilities. Section 4 of the Act of 1845 (Rev. Stat. of 1845, page 349) provides, that every action of debt or covenant founded upon any single or penal bill, promissory note, or writing obligatory for the direct payment of money, or the performance of covenants, shall be commenced within sixteen years after the cause of action shall have accrued, and not .-after. This Act is mot applicable to the present case. No' ■action of debt or covenant could be brought upon either of; -these mortgages. They are not single or penal bills, or p^om- ■ .issory notes, or writings obligatory for the direct payment of .money. We said in Schifferstein v. Allison, supra: “An ordimary mortgage or deed of trust is not an evidence of indebtedness.” In Hall v. Byrne, 1 Scam. 140, where a statute provided, that a failure or want of consideration might be pleaded in .-any action upon a note, bond, bill, “or other instrument in writing for the payment of money, or property, or the performance •of covenants or conditions,” etc., this Court held, that a mortgage of lands was not such an instrument in writing as "was contemplated by the Act, and that, had the legislature intended ■to refer to mortgages, they would have been enumerated. In Woodbury v. Manlove, 14 Ill. 213, a statute, allowing a plea of set-off in any actioú “upon any contract or agreement either express or implied,” was held not to apply to mortgages. To the same effect is Carpenter v. Mooers, 26 Ill. 162. The Act of February 10, 1849, which provides that all actions founded on any promissory note, bill of exchange, book account or simple contract shall be commenced within five years next after such action shall-have accrued, and not after, has no application here. A mortgage, being a deed and under seal, is not a simple contract. But if the Act óf Feb. 10,1849, was applicable, the present suit would be barred, because more than five years have passed since April 1,1876. The Act of November 5, 1849, provides “that all actions founded upon any promissory note, simple contract in writing, bond, judgment or other evidence of indebtedness in writing made, caused or entered-into after the passage of this Act, shall •be commenced within sixteen years after the cause of action accrued and not thereafter.” This Act has no application, as the present mortgages were made or entered into before November 5, 1849, towit on April 1, 1848. The Act of February 17,1851 has no application. Its first section refers to causes of action accruing while the Act of February 10, 1849, was in force. If the second section could be held to be applicable to these mortgages, it would subject them to the provisions of the Act of February 10, 1849, and, in such ease, the right to sue upon them was barred at .the end of five years after August 1,, 1876. There is no other law than those named, which has sufficient bearing upon the questions involved to justify any mention. As no limitation Act existed before the passage of the Act of 1872 which included these mortgages, it follows that the saving clause of section 24 does not apply to them, and they must be regarded as barred by Section 11 of the Act of 1872. Section 18 of the Limitation Act of 1872 has no application to the absence from the State, or non-residence, of remote grantees or assigns of the mortgagor, when they have acquired their interest in the equity of redemption after the cause of action has accrued, and when neither they nor the original mortgagor have assumed any personal liability to pay the debt secured, by the mortgage. They are not the persons against whom the cause of action has accrued within the meaning of section 18. In view of the conclusion here reached it is unnecessary to consider any of the other defences made to the bill. The judgment of the Appellate Court and the decree of the Circuit Court are reversed, and the cause is remanded to the Circuit Court with directions to proceed in accordance with the views herein expressed. Judgment reversed.