but the remedy is taken away by the statute.1 A mortgage, being a specialty, is barred by the lapse of the period, after it becomes due, fixed upon by statute for that class of obligations; and where specialties are not specially provided for, they are left subject to the operation of the common-law presumption of payment arising from the lapse of twenty years, without the payment of any part of the principal or interest, after it becomes due. In some of the States the statute provides v. Pruyn, 7 Paige (N. Y.) Ch. 465; Mc- 2 The presumption that a mortgage is Elmoyne v. Cohen, 13 Pet. (U. S.) 312; paid only arises at the expiration of twenty Spears v. Hartley, 3 Esp. 81; Pratt v. Hug years from the last payment of principal or gins, 29 Barb. (N. Y.) 277; Crane v. Page, interest. Peck v. Mallons, 10 N. Y. 509; 4 Cush. (Mass.) 483; Smith v. Washington People v. Wood, 12 Johns. (N. Y.) 242. City, &c. R. R. Co., 33 Gratt. (Va.) 617; Consequently, if within that time payments Browne . Browne, 17 Fla. 607, 35 Am. have been made by the mortgagor on acRep. 96; Union Bank v. Stafford, 12 How. count of the mortgage, the presumption (U. S.) 340; Eastman v. Forster, 8 Met. cannot arise, New York Life Ins., &c. Co. (Mass.) 19; Sturgis v. Crowningshield, 4 v. Covert, 3 Abb. Dec. (N. Y.) 350; or Wheat. (U. S.) 122; Hughes v. Edwards, even if he has admitted the legal existence 9 id. 489; Harris v. Vaughn, 2 Tenn. Ch. of the mortgage, Meyer v. Pruyn, 7 Paige 483; Elkins v. Edwards, 9 Ga. 326; Wal- (N. Y.) Ch. 465. And an admission by termire v. Westover, 14 N. Y. 20; Myer a purchaser from the mortgagor and a v. Beal, 5 Oreg. 130; Trotter v. Erwin, promise to pay it within twenty years will 27 Miss. 772; Cook v. Culbertson, 9 Nev. rebut the presumption of payment both as 199; Henry v. Confidence G. & S. Mining against the purchaser and his judgment Co., 1 Nev. 619; Nevitt v. Bacon, 32 creditors. Park v. Peck, 1 Paige (N. Y.) Miss. 212; Wilkinson v. Flower, 37 id. Ch. 477; Belmont v. O'Brien, 12 N. Y. 179; Reade v. Edwards, 2 Nev. 302; Gary 394; People v. Pierce, 10 Johns. (N. Y.) v. May, 16 Ohio, 66; Fisher v. Mossman, 414; Newcoms v. St. Peter's Church, 2 11 Ohio St. 42; Wood v. Augustine, 61 Sandf. (N. Y.) Ch. 636; Marvin v. HotchMe. 46; Longworth v. Taylor, 2 Cin. (Su- kiss, 6 Cow. (N. Y.) 401. But this preperior Ct. Ohio) 39; Kennedy v. Knight, sumption cannot be rebutted by mere proof 21 Wis. 340; Kellar v. Sinton, 14 B. Mon. of non-payment in fact. Fisher v. New (Ky.) 317; Richmond v. Aiken, 25 Vt. York, 67 N. Y. 73. "It is perfectly set324; Ohio L. & T. Ins. Co. v. Winn, 4 tled," says Sir WILLIAM GRANT, in Barron Md. Ch. 253; Cleaveland v. Harrison, 15 v. Martin, 19 Ves. 327," that twenty years' Wis. 670. "It is well settled," says HIN- possession by the mortgagee is prima facie MAN, C. J., in Hough v. Bailey, 32 Conn. a bar to the right of redemption." Craw288, that the mere fact that a debt is ford v. Taylor, 42 Iowa, 260; Moore v. barred at law by the statute of limitations Caple, 3 Johns. (N. Y.) Ch. 385; Blake v. does not constitute a defence to a bill for Foster, 2 B. & B. 402; Demorest v. Wynthe foreclosure of a mortgage given to koop, 3 Johns. (N. Y.) Ch. 129; Hall v. secure it, or to an action of ejectment to Denckla, 28 Ark. 506; Johnson v. Mounsey, recover possession of the mortgaged estate. 40 L. T. N. s. 234; Hoffman v. Harrington, In order to bar the mortgagee's right of 33 Mich. 392; Amory v. Lawrence, 3 Cliff. foreclosure, or a suit at law to recover pos- 523; Bates v. Conrow, 11 N. J. Eq. 137; session, the mortgagor must have been per- Ayres v. Waite, 10 Cush. (Mass.) 72; mitted to remain in possession of the prem- Roberts v. Littlefield, 48 Me. 61; Howland ises for fifteen years at least, without v. Shurtliff, 2 Met. (Mass.) 26; Randall v. payment of any portion of the debt or the Bradley, 65 Me. 43; Slicer v. Bank of performance of any act recognizing the Pittsburgh, 16 How. (U. S.) 57; Bailey v. continued existence of the mortgage." Carter, 7 Ired. (N. C.) Eq. 282; Slee v. Jarvis v. Woodruff, 22 Conn. 548; Haskell Manhattan Co., 1 Paige (N. Y.) Ch. 48; v. Bailey, id. 569. Hughes v. Edwards, 9 Wheat. (U. S.) 489; Dexter v. Arnold, 1 Sumn. (U. S.) 109; Knowlton v. Walker, 13 Wis. 264; Cook 1 Low v. Allen, 26 Cal. 141; Sichel v. Carrello, 42 id.493; Beckford v. Wade, 17 Ves.87. 2 1 that unless a specialty is paid, either wholly or in part, within the period of twenty years, it shall be presumed to be paid; and these statutory presumptions, although only a re-enactment of the common-law rule by the legislature, are nevertheless treated as deriving increased vigor by such enactment, and operate as an absolute bar to a recovery thereon, after the lapse of the period fixed by statute, unless the operation of the statute has been saved by some one of the modes provided in the statute; and a court of equity will decree the satisfaction of a mortgage which has been permitted to lie dormant during the entire period fixed by statute for the maturing of this presumption; 1 whereas, under the common-law presumption, while a court of equity in analogy to the statute will not enforce a mortgage which has been permitted to lie dormant for the period requisite under the statute to acquire the title to land by adverse possession, neither, on the other hand, will it ordinarily decree its satisfaction unless payment in fact is proved, — the mere lapse of time, of itself, not being regarded as a sufficient ground for its interference, and the presumption raised by the lapse of such period is liable to rebuttal by evidence which fairly raises a contrary presumption. In the case last cited it was held that, where no entry to foreclose a mortgage has been made in compliance with the statute, a bill to redeem may be brought by a mortgagor at any time within twenty years, and that if the mortgagee has been in peaceable possession after condition broken for that period, no interest having been paid, the right to redeem is not favored in equity, and in analogy to the statute the mortgagor will not, except for special reasons, be admitted to redeem. It may be said that the special reasons which will let a mortgagor in to redeem after the lapse of such period must come within some one of the exceptions named in the statute; and if the mortgagor or those claiming under him is under any disability at the time when the mortgage debt matures, or the condition thereof is broken, neither the statute nor the presumption applies until such disability is removed. There is another circumstance to be considered in determining the right of the mortgagor to redeem after the mortgagee has been in possession for the requisite statutory period, and that is, whether during the entire period his possession has been adverse to the v. Finkler, 9 Mich. 131; Ross v. Norvell, 1 Wash. (Va.) 17; Gunn v. Brantley, 21 Ala. 633; Montgomery v. Chadwick, 7 Iowa, 114; Halsey v. Johnson, 66 Ill. 139; McNair v. Lot, 34 Mo. 283. 5 v. Kopner, 1 S. & S. 347; Jenner v. Tracey, 3 P. Wms. 287, note; White v. Ewer, 2 Vent. 340; Belch v. Harvey, 3 P. Wms. 287, note; Lamar v. James, 3 H. & M. (Md.) 328; Demorest v. Wynkoop, ante. The in 1 Kellogg v. Woods, 7 Paige (N.Y.) Ch. stances where a mortgagee or mortgagor are 578. 2 Coates v. Roberts, 2 Phila. (Penn.) 244. 3 Ayres v. Waite, 10 Cush. (Mass.) 72. 4 Robinson v. Fife, 3 Ohio St. 551. Limerick v. Voorhis, 9 Johns. (N. Y.) 129; Demorest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129. Beckford v. Wade, 17 Ves. 99; Price under disabilities must be extremely rare, as usually neither will be under a disability at the date of the mortgage. But instances may arise where a disability intervenes between the date of the mortgage and the accruing of a right of action under it, as where either party becomes insane. mortgagor, because, if he has misled the mortgagor by assuming any obligation to him as a return for his being let into possession or otherwise, whereby the mortgagor has been induced to lie by without redeeming the land, a court of equity will not treat the possession as adverse.1 In those States where special statutory provisions are made 2 that a failure to bring proceedings to redeem mortgaged premises within a certain number of years after entry by the mortgagee shall forever bar the mortgagor, of course a court of equity has no power to override the statute and let the mortgagor in to redeem, where the time has run and the statute fairly applies; but where no statutory provision is made, courts of equity adopt the period prescribed by the statute for the acquisition of a title by possession as the period requisite to bar a right of entry by a mortgagor or mortgagee. SEC. 223. Statutory Provisions relative to Mortgages. 4 rule prevails as to mortgage debts as prevails in reference to other debts, that the statute simply defeats the remedy, but does not extinguish the debt; but as there are distinct remedies upon the debt, and the mortgage given to secure it, and the nature of the remedies depends upon the character of the respective instruments, it would seem to follow that, in the absence of an express statute to the contrary in those States where a distinction is made between simple contracts and instruments under seal, the circumstance that the statute has run upon the one would not prevent or bar the remedy upon the other, upon which the statute has not run; and, as we have before seen, except where the statute expressly or 1 Demorest v. Wynkoop, ante; Rafferty v. King, 1 Keen, 601; Hyde v. Dilloway, 2 Hare, 528. 2 As in California, New Jersey, Kentucky, Mississippi, and North Carolina. 8 Jarvis v. Woodruff, 22 Conn. 548; Crittenden v. Brainard, 2 Root (Conn.), 485; Skinner v. Smith, 1 Day (Conn.), 124. In Haskell v. Bailey, 22 Conn. 569, WAITE, J., says: "It is said by JUDGE STORY in his Commentaries upon Equity Jurisprudence that if 'legal title would, in ejectment, be barred by twenty years' adverse possession, courts of equity will act upon the like limitation, and apply it to all cases of relief sought upon equitable titles or claims touching real estate.' 2 Story's Eq. Juris. § 1620. Hence in those States where the right of entry upon lands is, by statute, limited to a period of twenty years, a mortgagor who has suffered the mortgagee to remain in possession of the mortgaged premises during that period cannot afterwards sustain a bill to redeem, without showing such circumstances as will relieve his case from the operation of the general rule. As in this State the right of entry upon lands is limited to a period of fifteen years, our courts, proceeding upon the same principle, have repeatedly held that the mortgagor under such circumstances must bring his bill within fifteen years, and is not allowed twenty years for that purpose. And they have said that it may be adopted as a rule that the mortgagee being in possession, a mortgagor shall not have more than fifteen years to redeem after his equitable right has accrued, unless the delay shall be accounted for by statute disabilities, or other special circumstances that may be considered equivalent." Skinner v. Smith, 1 Day (Conn.), 127; Lockwood v. Lockwood, id. 295; Jarvis v. Woodward, ante. + Lent v. Shear, 26 Cal. 361; Law v. Allen, id. 141. Hough v. Bailey, 32 Conn. 288; Heyer v. Pruyn, 7 Paige (N. Y.) Ch. 465; Myer v. Beal, 5 Oreg. 136; Crain v. Paine, 4 Cush. (Mass.) 483. Sustaining this doctrine, see Hayes v. Frey, 54 Wis. 503; Whittington v. Flint, 51 Ark. 504, 51 Am. Rep. 572; Buckner v. Street, 15 Fed. Rep. 365; Nichols v. Briggs, 18 S. by fair inference destroys the remedy upon the mortgage, at the same time that the remedy is destroyed as to the debt, it may be enforced after the statute has run upon the debt, unless the same statutory period is applicable to both. Thus, in California, no distinction exists between simple contracts and those under seal, but the statute runs upon all contracts, obligations, &c., founded upon an instrument of writing, except a judgment or decree, &c., in four years; and, as the courts do not regard a mortgage as a conveyance of real estate, they hold that when the debt is barred, the mortgage is also extinguished, because, being a mere incident of the debt, it cannot exist independently of its principal, which is the debt. The same rule prevails in several of the new States, where the old theories relative to real estate and the effect of sealed instruments are not adopted to their full extent, as in Iowa,1 Nevada,2 Nebraska, Texas, Illinois, and Kansas; and such, indeed, would seem to be the necessary rule where this theory relative to the nature and effect of mortgages prevails. In some of the States, express limitations are provided as to the period within which an action for the enforcement or redemption of a mortgage must be brought. Thus, in New York,' it is provided that an action for the redemption of a mortgage, either with or without an account for rents and profits, unless the mortgagee or those claiming under him have continuously maintained an adverse possession of the premises for twenty years; and such a provision, in effect, exists in the New Jersey statute. In Illinois, it is provided that a mortgage shall be barred in ten years after a right of action accrued thereon. In C. 473. In Hardin v. Boyd, 113 U. S. 765, HARLAN, J., says: "An action to recover the debt may be barred by limitation, yet the right to enforce the lien for purchase-money may still exist." Coldcleugh v. Johnson, 34 Ark. 312; Lewis v. Hawkins, 23 Wall. (U.S.) 119; Birnie v. Main, 29 Ark. 591; Cheney v. Cooper, 14 Neb.415; Crook v. Glenn, 30 Md. 55; Bird v. Keller, 77 Me.270; Locke v. Caldwell, 91 Ill. 417; Chanteau v. Burlando, 20 Mo. 488; Elsberry v. Boykin, 65 Ala. 336; Mich. Ins. Co. v. Brown, 11 Mich. 265; Browne v. Browne, 17 Fla. 607, 35 Am. Rep. 97; McNair v. Lot, 34 Mo. 285; Arrington v. Liscom, 34 Cal. 365; Bizzell v. Nix, 60 Ala. 281; Waldo v. Rice, 14 Wis. 286; Lingan v. Henderson, 1 Bland (Md ), 236; Cheney v. Janssen, 20 Neb. 128; Edmands v. Tipton, 85 N. C. 459; Earnshaw v. Stewart, 64 Md. 513; Christy v. Dana, 42 Cal. 174; Clough v. Rowe, 63 N. H. 562; Smith v. Woolfolk, 115 U. S. 143; Allen v. Early, 24 Ohio St. 97; Tryon v. Munson,77 Penn. St. 250; Potter v. Strausky, 48 Wis. 235; Fuller v. Eddy, 49 Vt.11; Fisk v. Stewart, 26 Minn. 365; Greene v. Mizelle, 54 Miss. 220; 3 Hurley v. Estes, 6 Neb. 386; Kyger v. Ryley, 2 id. 20. 4 Ross v. Mitchell, 28 Tex. 150; Duty v. Graham, 12 id. 427. 5 Hagan v. Parsons, 67 Ill. 170. But in this State a distinction exists between a sealed instrument and one not under seal; but as the debt is treated as the principal, and the mortgage as an incident, they both fall together, unless the mortgage contains a covenant for the payment of the debt, in which case the mortgage is not barred until the period for the limitation of sealed instruments has expired. Harris v. Mills, 28 Ill. 44. 6 Chick . Willetts, 2 Kan. 384; Schumaker v. Sibert, 18 id. 104. 7 Appendix, New York. 8 Appendix, New Jersey. 9 5 1 6 Kentucky, the remedy of a mortgagor for the redemption of a mortgage is barred when the mortgagee, or any person claiming under hin, has been in the continuous adverse possession of the premises for fifteen years. In Mississippi, the right of redemption is barred in ten years, and the remedy upon the mortgage is barred when the debt is.3 In Minnesota, a remedy upon a mortgage is barred in ten years after the cause of action accrued; and such, also, is the provision in North Carolina, both as to the foreclosure and redemption of a mortgage. In California, an action to redeem a mortgage is barred in five years. In the other States, the period of limitations is made to depend upon the period requisite to bar an entry upon lands, or, in most of the new States and some of the old ones, upon the period provided for the limitation of actions upon contracts in writing, or of instruments under seal. In New Hampshire, by statute, the note is kept on foot as long as an action may be maintained upon the mortgage, which is twenty years from the time when the debt becomes due.10 In Pennsylvania and Wyoming, the period of limitation is twenty-one years, adopting, as is generally the case, the period requisite to bar a right of entry upon lands, and treating the mortgage as a conveyance of land. In Maine, Rhode Island, Massachusetts, New Jersey, New York, Georgia, Indiana, Delaware, South Carolina, Wisconsin, and Dakota, the mortgage is barred in twenty years from the time when the obligation it is given to secure matures. In Vermont, Connecticut, Kentucky, Virginia, and Kansas, the limitation is fifteen years. In Alabama, Iowa, Oregon, North Carolina, West Virginia, Texas, Nebraska, Missouri, Minnesota, and New Mexico, ten years; in Tennessee, Florida, and Utah, seven years, in Colorado, six years; in Arkansas, California, and Idaho, five years; in Nevada, four years; in Montana, three years. Where a creditor has an election of remedies for the same debt, one of which is barred and the other not, he may maintain an action on the one not barred. Thus, where a note is given as collateral security for an account, an action may be maintained upon the note, although the statute has run against the account" and the same rule prevails where there is a note and mortgage. The note may be barred, but an action to recover the amount secured by the mortgage may be maintained until the statute has run against that. SEC. 224. When Statute begins to run in Favor of or against the Mortgagor. - The statute begins to run in favor of the mortgagor from the time when the mortgagee's right of action accrues against him, under the mortgage, 12 or, in other words, from the time of condition broken, so that the mortgagee may foreclose fully; and, as the proceedings are in rem, the fact that the defendant is out of the State - 13 11 Shipp v. Davis, 78 Ga. 201. 12 Nevitt v. Bacon, 32 Miss. 212. 18 Wilkinson v. Flowers, 37 Miss. 579; Trayser v. Trustees, 39 Ind. 556; Hale v. Park, 10 W. Va. 145; Gladwyn v. Hitchman, 2 Vern. 134; Gillet v. Balcom, 6 Barb. (N. Y.) 370. |