Home Life Insurance v. Elwell

Hooker, J. The defendants, on December 29, 1871, while residents of the State of New Jersey, executed a bond for $6,000, payable January 1, 1873, interest payable semi-annually, accompanied by a mortgage upon New Jersey land owned by defendant Catherine M. El well, the defendant John A. El well having signed the bond as surety. The defendants paid interest on the bond regularly up to January 1, 1877, the last payment made by them being on January 3, 1877. On January 10, 1877, they joined in a conveyance of the mortgaged premises to Christine H. Arkell, for $14,500, subject to said mortgage, the property being then worth $20,000. In July, 1877, the defendants l’emoved to Michigan, where they have since resided, giving plaintiff no notice of their removal, and paying no further attention to the matter of their indebtedness. Christine Arkell paid the interest upon the bond until December, 1891, when she sold the property to James W. Arkell, and he paid interest to July 1, 1892, since which time no interest has been paid. In 1893, foreclosure was commenced in the chancery court of New Jersey, and the premises were bid in by the plaintiff for the sum of $4,300, leaving a deficiency, including costs, of $2,401.15. The defendants were not made parties to the foreclosure proceedings, and were ignorant of them until after the sale had become absolute. This action was begun in the circuit coui't for the county of Gratiot, to recover the deficiency, upon the bond. The defense is the statute of limitations, and the court held that the plaintiff’s action was barred by the statute of Michigan, and that the statute of New Jersey had no application. It was further held that the [691] plaintiff .should, have brought its action within 10 years after the defendants became domiciled in Michigan, to prevent the claim from being barred by the Michigan statute, and that the payments of interest by the Arkells were not such payments by defendants as to arrest the running of the statute. Counsel for the plaintiff contends: 1. That the court erred in finding that the statute of Michigan barred the claim, inasmuch as the plaintiff had no knowledge that the defendants resided in Michigan. 3. That the payments made by the Arkells were payments upon the debt, and for the benefit of the defendants, and had the effect of arresting the running of the statute, the same as though made by the defendants. It is a uniform rule that the law of the forum applies, and therefore it is the statute of limitation in force in Michigan, and not that of New Jersey, which must govern. See 1 Wood, Lim. § 8; Howard v. Coon, 93 Mich. 442. When the defendants came to Michigan, the statute had begun to run, the bond being due. No provision of our statute relieves a foreign plaintiff from the force of the statute because he is ignorant that the defendants have removed to Michigan; it is only when the defendants are absent from Michigan that the statute is arrested. These defendants were residents of the State continuously for over 10 years after the statute commenced to run, and we are not advised of any authority which suspended the statute by reason of plaintiff’s want of information concerning their whereabouts. There is nothing to show that the payments made by the Arkells were other than payments for their own benefit, to relieve the premises from the incumbrance. In Littlefield v. Dingwall, 71 Mich. 223, it was said that payment by a joint debtor does not arrest the running of the statute against his co-defendant. Rogers v. Anderson, 40 Mich. 290; Ottawa Probate Judge v. Stevenson, 55 Mich. 320; Holcomb v. Sloan, 39 Mich. 173; [692] Howard v. Coon, 93 Mich. 442. This is contrary to the doctrine laid down in the case of Pears v. Laing, L. R. 12 Eq. 56, and possibly Barrett v. Prentiss, 57 Vt. 300, though that case is perhaps distinguishable. See, also, Emory v. Keighan, 88 Ill. 488, where it is sáid that grantees of a mortgagor may be affected by payments made by the mortgagor upon the debt secured by the mortgage after the statute has run. It is, however, the law here, whatever the rule may be elsewhere, and we think it accords with the weight of authority. The theory upon which part payment takes a case out of the provisions of the statute is that it may be supposed to imply a new promise to pay the debt; and the cases hold that this result will not follow where the payment is accompanied by circumstances which preclude such inference. See A’Court v. Cross, 3 Bing. 329; Tippetts v. Heane, 4 Tyrw. 772; Linsell v. Bonsor, 2 Bing. N. C. 241; Bateman v. Pinder, 3 Q. B. 574; Collyer v. Willock, 4 Bing. 313; Wakeman v. Sherman, 9 N. Y. 85; Chambers v. Garland, 3 G. Greene, 322. This is the rule in Michigan. Ten Eyck v. Wing, 1 Mich. 40; Jewett v. Petit, 4 Mich. 508. And, where the payment is made by another, it has been held that such other must be one authorized to make a new promise on behalf of the debtor for the residue. Brown v. Latham, 58 N. H. 30 (42 Am. Rep. 568); Harper v. Fairley, 53 N. Y. 442; Littlefield v. Littlefield, 91 N. Y. 203 (43 Am. Rep. 663). And see 1 Wood, Lim. § 101 et seq. There is nothing in this record to show that any such authority was given to the Arkells. Presumably, the payments were made upon their own behalf, to save their estate; and we cannot say that an expectation on the part of the defendants that they would pay (if we may infer that) was tantamount to authorizing or directing them to bind defendants by a new promise. We are therefore of the opinion that the circuit court was not in error in his conclusion. The other Justices concurred.