Day v. Baldwin

Miller, J. [383] 1. statute of title bond foreclosure: mortgage. [382] Without noticing each of the grounds urged by appellant for a reversal of this decreee, we think [383] it must be reversed on the defendant’s plea of the statute oi limitations. The note alleged to be lost, and for the amount of which this suit is brought, matured February 1, 1858. This action was not'brought' until September, 1869, more than eleven years after the cause of action accrued. An action at law on the note would be barred in ten years. So, also, treating the enforcement of a vendor’s lien as the foreclosure of a mortgage, an action brought for that purpose must be brought within ten years from the time the cause of action accrued. Rev., § 2740, subd. 4; Newman v. De Lorimer, 19 Iowa, 244. See, also, Gower v. Winchester et al., 33 id. 302. This action, therefore, was barred by the statute, unless the plaintiff has shown some fact or circumstance taking the case out of its operation. 2.-effect of admission. In the first place there is no allegation in the petition taking the case out of the statute; but supposing this to be waived by a failure to demur, is there any other proof in the case which removes the bar of the statute ? We think not. The defendant Baldwin, the maker of the note, in his answer admits its execution, and that it has never been paid; but we think this admission, under the state of the pleadings and the facts of the case, cannot remove the bar of the statute existing in favor of Oooley. The petition expressly states that no personal claim is made against Baldwin; it seeks only to enforce the claim against the land; the facts of the case show that Baldwin has no interest whatever in the land; that all of his interest had been sold under a foreclosure upon the other note held by James Howard, and that Cooley was the purchaser at such sale, and still holds all the rights thereby acquired. Cooley is really the only defendant, showing.any interest whatever in the land. There is no relief sought against Baldwin, and he couples his admission of plaintiff’s right to recover the amount of [384] the note out of the land, with the proviso, that no personal-claim be made against him. This answer of Baldwin cannot be taken to prejudice the interests of the defendant Cooley. Rev., § 2742; Ayres v. Campbell et al., 9 Iowa, 213. If a personal judgment were sought against Baldwin, his admission would probably authorize such judgment against him, but as no relief can in any view of the pleadings be had against him we fail to see why he is made a party at all, unless for the mere purpose of obtaining this admission. But, having no interest whatever in the result of the action, his admissions will not effect a party who is interested, any more than the admissions of any other stranger. 1 Greenl. Ev., §§ 172, 173, 174. He was not a necessary party to the action, and he pleaded no fact showing that he was even a proper party. Johnson v. Monell, 13 Iowa, 300; Semple v. Lee, id. 304; Gifford v. Workman, 15 id. 34. As before remarked no personal judgment is asked against any of the defendants. Cooley holds the land under the foreclosure sale upon the second note, so that he alone will be affected by the enforcement of plaintiffs’ claim. It is against his property that the action is brought, and that he may plead the statute of limitations in bar of the action in this respect, we have no doubt. He has taken the place of the maker of the note, as the owner of the equity of redemption. He is the purchaser of Baldwin’s interest in the land, and as such, may set up the bar of the statute. See Gower v. Winchester, supra; see, also, McCarty v. White, 21 Cal. 495; Coster v. Brown, 23 id. 142. It is insisted by,appellee that the admission by Baldwin, that the note has never been paid, removes the bar of the statute from the right of action to enforce the lien, and cites Hendershott v. Ping, 24 Iowa, 134, as sustaining this position. We think the learned counsel has misapprehended the decision in that case. In that case a decree of foreclosure had been rendered on the mortgage, before the [385] time of the statute had run, and the question was whether, after ten years from the date of this decree, the plaintiff having piuehased the land, he was entitled to have the lien of the decree removed and his title quieted, and it was held that he was not, on the ground that the lien of the mortgage did not merge in the decree, and that under subdivision 5 of section 2740, an execution might issue at any time before the judgment was barred by tbe statute of limitations, which is twenty years from the date of its rendition. That case is, in no wise, in conflict with the views above expressed. It simply holds that, so long as the plaintiff in the judgment has a right to an execution for the sale of the mortgaged premises, a purchaser has no right of action to quiet title in himself, as against such judgment plaintiff, and that such right to issue execution, exists for twenty years from the rendition of the judgment. That time had not expired at the time of the action by the plaintiff. In this case the plaintiff’s right of |ption on the note, and also his right of action to foreclose against the land and those interested therein, had expired, and was barred before be brought his action, and he has shown no circumstance taking the' case out of the operation of the statute, as respects his cause of action against Cooley. The judgment will, therefore, be reversed, with directions to the district court to render a decree dismissing plaintiff’s petition on the merits with costs, or if appellant so elects sudh judgment will he rendered in this court. Reversed.