Gillett v. Hill

Cole, J. 1. Statute oe pleading. ' I. Our statute provides (Rev., § 2746): “ But when a cause of action has been fully barred by tha laws of any country where the defendant has previously resided, such bar shall be the same defense here as though it had arisen under the provisions of this chapter.” “But this section shall not apply to causes of action arising within this State,” is added by amendment. , Laws of 1870, ch. 167, § 10. So far as is shown by the answers, a right of action upon the mortgage for its foreclosure still exists in the State of New York. It does not, therefore, appear from the answers that the cause of action was fully barred, since the plaintiff’s cause of action extends, not only to a recovery upon the notes, but to a foreclosure of the mortgage also. It is argued, however, by appellant’s counsel, that the mortgage is only collateral to secure the payment of the notes, and where the right of action upon the notes, the principal thing, is barred, the remedy upon the mortgage, the collateral or incident to the debt, must be barred also; and they cite Newman v. De Lorimer, 19 Iowa, 244, to prove this doctrine. But, suppose it be granted, for the purpose of the argument, that such is the rule of law under the Iowa statutes, there is no averment or showing by the answers that such is the law of the State of New York; and it is by the laws of the State of New York that the sufficiency of the answer, as averring facts constituting a bar by the statute of limitation, is to be determined. In the absence of such averment in respect to the laws of New York, the answers are insufficient, for we [223] cannot presume, for the purpose of creating a substantive defense, that such is the law of New York. And if we turn our attention to the study of the law there in that regard, we seem to find that “the statute limiting the time for commencing actions for the recovery of a simple contract debt is no bar to an action to foreclose the mortgage given to secure such debt. Borst v. Corey, 15 N. Y. 505, and authorities cited on page 510. See, also, Heyer v. Pruyn, 7 Paige’s Ch. 465. Besides this, the courts of New York could not have jurisdiction to foreclose this mortgage. We conclude, therefore, that the answers do not aver facts sufficient to constitute a bar under the statutes of New York. 2. — -non-res-Petohell fendant. II. The non-residence of defendants operates, under our statutes, section 2745, to defeat the bar of limitations here. Petchell v. Hopkins, 19 Iowa, 531; and, since the other defendants oannot rely upon the bar of our statute, it is quite clear that the defendant, W. H. Stivers, as against whom the cause of action did not accrue till his purchase in February, 1870, a month only before suit was brought, cannot rely upon, or be protected by, it. Affirmed.