Brown v. Rockhold

49 Iowa 282

• Court: Supreme Court of Iowa
• Decided: October 23, 1878
• Status: Published

Opinion

Rothrock, Ch. J.

1. statute of limitation: demurrer. I. The first question arising upon the record is, did the cross-petition of defendant show that the promissory note made by Hayes Black to the defendant was barred by the statute of limitations. To enable a party to insist by demurrer upon the statutory bar, the pleading must show “on the face thereof” that the cause of claim is within the statute. ■ Code, § 2648.

The Code, § 2533, provides that “the time during which a defendant is a non-resident of the State shall not be included in computing any of the periods of limitation above described. ”

The cross-petition shows upon its face that before the note became due Playes Black, the maker thereof, removed from this State, and has ever since resided elsewhere. This non-residence arrested the operation of the statute, and unless it appears from the pleading that by the statute of some State where he has since resided an action upon the note has been barred, a demurrer would not'lie. It is averred that he removed from this State to the State of Missouri, and from there to Illinois. But how long he resided in either State does not appear, nor are the provisions of the statutes of limitations of either of those States shown, that the court may be advised as to whether the cause of action was there barred. Moulton v. Walsh, 30 Iowa, 361; Shearer v. Mills, 35 Iowa, 499.

2__. mortgage. II. It is urged, however, that the action to foreclose the mortgage, being a proceeding in rein, separate and distinct from an action on the note, is barred in ten years. This cross-petition seeks to make Black, the maker of the note, a party to the foreclosure, and prays judgment for the amount due thereon. The pleading, therefore, asks more than a simple foreclosure as against the present owner of the land.

The general rule is that the mortgage is but a mere incident to the note which it is given to secure, and that nothing short of payment of the debt or its extinguishment by operation of law will discharge the mortgage lien. In Clinton County v. Cox, 37 Iowa, 570, it was held that a mortgage is not barred by the statute of limitations so long as the debt is unpaid, and capable of being enforced. The question determined in that case is precisely the same as that presented in the case at bar. See also Mahon v. Cooley, 36 Iowa, 479. Following these eases we are of opinion that the demurrer should have been overruled.

Counsel for appellee relies upon the case of Eubanks v. Limridge, U. S. Circuit Court, District of Oregon. Chicago Legal News, August 18,1877. That ease seems to announce a different rule from that found in the cases above cited. It is enough to say that we are content to adhere to the rule established by this court.

Beversed.