Rodgers v. Robson

Grant, J. (after stating the facts). 1. The statute on the subject (3 Comp. Laws, § 9725) reads as follows: [658] “No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall be due and payable, or within fifteen years after the last payment was made on said mortgage.” Payment implies that the payor has parted with money or other valuable thing, and that the payee has received it in part liquidation of the debt. It is not indorsement that satisfies the statute. It is actual payment. Otherwise it would be an easy matter for a payee to avoid the statute. An agreement to forbear a part or whole of the debt without any consideration is void. The mortgagor in this case paid nothing. The mortgagee received nothing. It would be a misnomer to call such a transaction a payment within the meaning of the statute. Blanchard v. Blanchard, 122 Mass. 558; Erpelding v. Ludwig, 39 Minn. 518; Young v. Alford, 113 N. C. 130; Areaux v. Mayeux, 23 La. Ann. 172; 19 Am. & Eng. Enc. Law (2d Ed.), p. 326. 2. The letter did not operate to suspend the statute. It is not sufficient under the general statute of limitations (3 Comp. Laws, chap. 268, § 9740), requiring the acknowledgment or promise to be in writing, even if we should hold that section 9740 was applicable to the foreclosure statute. It contained no new promise to pay, and was not an acknowledgment of the entire debt. It was merely an inquiry to ascertain if the mortgagee would discharge the mortgage as to a part of the land if the mortgagor would pay $500. The statute had nearly run against the right to foreclosure. A mortgagor cannot maintain a bill to set aside the mortgage after action is barred by the statute; and, if barred, the mortgagor might have been willing to obtain a release of part by paying a certain sum. Carr v. Carr, 138 Mich. 396; Halladay v. Weeks, 127 Mich. 363; Throop v. Russell, 145 Mich. 482; Currier v. Lockwood, 40 Conn. 349; 6 Current Law, p. 480; Bell v. Morrison, 1 Pet. (U. S.) 351. In the last case, the payor wrote the payee: “I know that we are owing you, [659] and I am anxious it should be settled,” and offered to pay $7,000 in full settlement. It was held that the letter did not take the case out of the statute. Whether the running of the statute can be interrupted fdr any cause other than payment — queere. As it is not necessary to the determination of the case, we do not decide the question. Decree affirmed, with costs. Me Alva y, C. J., and Carpenter, Blair, and Montgomery, JJ., concurred.