Boone v. Colehour

Mr. Justice Phillips, delivered the opinion of the court: On the 16th day of August, 1873, William H. Colehour executed his note for §15,066.47 to William Hansbrough, due two years from date, with interest at six per cent per annum, which note became a chose in action of appellants, and to secure the same Colehour made a trust deed on certain lands, in which it was recited the land was incumbered by another deed of trust to secure a large sum of money, which latter deed was to one Turner. On a bill to foreclose this latter deed appellants were parties defendant and filed their answer and a cross-bill, by which they sought to have the deed of trust securing their note made a prior lien to the Turner deed of trust. They also asked the amount due on that note should be found. After an extended litigation a decree was entered foreclosing the Turner deed of trust and dismissing the cross-bill of appellants, which was affirmed by this court. (Boone v. Clark, 129 Ill. 466.) A sale having been made under that decree, such proceedings were subsequently had under a certain bill filed by Charles W. Colehour against Edward Roby and William H. Colehour that the Title Guarantee and Trust Company was appointed a receiver and advanced the money to pay the amount found to be owing under the Turner foreclosure, and certain of the lands were platted and sold to pay the sum so advanced. At the time of the sale the lands were bid off for the amount of the decree but were redeemed by the receiver, and after selling enough to pay the amount advanced for redemption certain lands were still in possession of the receiver. After the dismissal of appellants’ cross-bill they made no attempt to'foreclose or protect their interests until the 17th of July, 1891, when they filed this intervening petition in the case of Colehour against Roby and Colehour. By this petition it is asked that the amount due upon this note shall be ascertained and the lien of the trust deed may be decreed, and the receiver, after paying the money advanced, etc., be ordered to sell other lots and pay the amount found due on their note. When this intervening petition was filed the note held by appellants had been due for fifteen years and eleven months. To this intervening petition William H. Cole-hour and Charles W. Colehour interposed pleas of the Statute of Limitations, which were held sufficient and a decree dismissing this bill was entered. The contention of appellants is, that the history of this litigation, and the fact of their filing an answer and cross-bill in the litigation which resulted in the proceedings to foreclose the Turner mortgage, which cross-bill was dismissed by the court on hearing on July 17,1886,— more than eleven years after the note became due,—show there was an active effort to collect this note, and hence that laches cannot be imputed to them; that in equity the conscience of the chancellor determines whether the bar shall be interposed, and to apply the bar in the present case would be inequitable. A further contention of appellants is, that to the cross-bill filed by them in the Turner foreclosure proceedings William H. Colehour and Charles W. Colehour were parties defendant and did not plead or answer, and their default was entered thereto, whereby an implied promise to pay this note resulted. As to the first contention, it appears the object and purpose of the cross-bill filed by appellants in the Turner foreclosure were to have their mortgage made a prior mortgage, and that cross-bill was dismissed. Whilst the Statute of Limitations does not strictly apply in equity, yet courts of equity recognize the fact that such statutes are everywhere regarded as conducive and necessary to the peace and repose of society and are dictated by experience. In cases not within the statute the time within which a party will be barred from relief necessarily depends upon the facts and circumstances of each particular case, and cases exist where courts of equity apply the bar by reason of laches on the ground of public policy, where, even by analogy, the time fixed by the statute has not run. These cases must depend upon the peculiar facts of each case. The general rule, however, is, where there is concurrent jurisdiction between courts of equity and courts of law, the former will refer to the statute as a means of determining the period in which the bar will be complete in equity. As where a note is secured by mortgage the latter is incident to the debt, and, where a suit on the note would be barred at law by the Statute of Limitations, if resort is had to a court of equity to foreclose the mortgage that court will apply the bar of the statute to the proceeding to foreclose. In this case the bar of the statute is complete at law, and is equally so in this proceeding, by section 11 of chapter 83 of the Revised Statutes. (Pollock v. Maison, 41 Ill. 516; Emory v. Keighan, 88 id. 482.) There was not a mere effort at foreclosure of this mortgage in the cross-bill in the Turner case,—it was an attempt at securing a priority which was unjust and inequitable.' Failing in that effort does not make a strong appeal to the conscience of the chancellor to avoid the bar of the statute as inequitable. Had the cross-bill been alone for a foreclosure of their trust deed, or had they, in their answer, sought a foreclosure, it is doubtless true that a decree would have been ordered. Much stress is laid upon the language in the opinion in Boone v. Clark, supra, where it is said (p. 493): “If appellants desire they may, under their answer, move the court, and it will be the duty of the chancellor—and which may yet be done in this cause—to preserve their rights, as against Colehour, in- any surplus remaining from the sale of the property after the payment of the amount due appellees.” The court was speaking of the case then before the court, and not of a new and different proceeding. This intervening petition is filed in a different case from what the answer in the other case of which the court was speaking was filed. Appellants did not follow the method suggested then, but adopted a new procedure in another case. Appellants’ first contention cannot be sustained. To take a case out of the bar of the statute an express or clearly implied promise to pay must be made by the debtor to the creditor, or some one authorized to act for him. In Carroll v. Forsyth, 69 Ill. 127, the court says (p. 131): “The law as recognized by this court is, that to remove the bar of the Statute of Limitations it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay. It must be of such a character as to clearly show a recognition of the debt and an intention to pay it,”—citing, as sustaining this case, Parsons v. Northern Illinois Coal and Iron Co. 38 Ill. 430, Ayers v. Richards, 12 id. 146, and Norton v. Colby, 52 id. 198. This language shows that the debt must not only be clearly recognized, but an intention to pay it must also be shown. This has always been the construction given to the Statute of Limitations in this State. By the provisions of section 16 of the Limitation act of 1872, in force at the time of the execution of this note and since, the new promise necessary to remove the bar of the statute as to written instruments must be in writing. Whilst a default entered against a defendant is as to that pleading a confession of its truth, it would not constitute a new promise in writing, as required by the statute. • On no principle is a mere default a new promise in writing, and there is no pretense that any payment was made. The second contention of the appellants can not be sustained. It was not error to dismiss the intervening petition, and the judgment of the Appellate Court affirming that decree is affirmed. T 7 , „ 7 Judgment affirmed.