Froelich v. Swafford

150 N.W. 476, 35 S.D. 35, 1914 S.D. LEXIS 183

Opinions

WHITING, J.

This cause is before us upon rehearing. The opinion heretofore rendered will be found 'reported in Froelich v. Swafford, 33 S. D. 142, 144 N. W. 925, to which reference is made for a statement of the facts. This rehearing was granted upon the petition of respondent, and the order granting same limited it to- a discussion of the following questions:

“(1) Has the statute of limitations barred plaintiff’s right of action to redeem, or has such statute of • limitations been tolled by nonresidence of certain parties who held title under the first mortgage? (2) Has Swafford, through adverse possession of himself and his grantors under color of -title, acquired a title to the land superior -to, and which cuts off, all the rights of Froelich under this mortgage?”

Upon the rehearing respondents concede that, by reason of the decisions of this -court in Cain v. Ehrler, 33 S'. D. 536, 146 . N. W. 694, and P-lowman v. Morden, 33 S. D. 593, 146 N. W. 914, which hold that a redemption from a tax sale is not a payment of taxes within the meaning of section 54, C. C. P., they cannot claim title -through adverse possession .

[1,-2] Appellants contend that.no question as to the tolling of the statute of limitations is presented under the facts in this case; in ■ fact, it is their contention that, owing to the provisions of -section 2034, C. C., no statute limiting the time for bringing an action can have any application to an action to redeem from a lien. Section 2034, C. C., reads as follows:

“Every person having an interest in property subject to a lien, has a right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed.”

We are of the opinion that the right of redemption mentioned in section 2034 -can be barred by limitation the same as other rights. We are also of the opinion that the ten-year statute is the one which relates to- actions wherein redemption is sought; but we are not agreed as to when the bar of such -statute commences to run — whether it commences to run from the date when the claim- to be redeemed from falls due, or whether the right to-redeem is one continuing in its nature and against which no statute -of limitation will commence to run until such right is expressly or impliedly denied by some word or act on the part of the person claiming under the lien. When, however, one goes into possession under a sheriff’s deed upon foreclosure, he makes claim to all the right, title, and interest in and to such property which such deed purports to convey, which is at least all the right, title, and interest owned by the mortgagor at time of giving the mortgage upon which such deed is based. Therefore, when a subsequent mortgagee becomes advised that a purchaser upon a foreclosure of a prior mortgage has entered into- possession under a deed issued upon such foreclosure, he receives at least implied notice that any right of his inconsistent with the title under which such possession is held is 'denied by such possessor — then, if never before, the statute of limitations commences to run against his right of redemption. In this case the trial court found:

“That for more than ten years prior to the beginning of this action the plaintiff -knew that Ruth'A. Parks 'had foreclosed the first mortgage upon ¡this land as set forth in the finding of fact No. 6 herein, and that a sheriff's deed for said land had been issued, to her, and that she claimed to be the owner in fee of said land adversely to him and all the world, and that for more than ten- years prior to the beginning of this action the plaintiff knew that said Ruth A. Parks and her. grantees had been in actual adverse possession of all said land, claiming ownership and title thereto, in good faith, adversely to him and all the world.”

It follows that the statute of limitations had run prior to the commencement of this action, unless the ru-nhing thereof had been tolled. It- had not been tolled, unless tolled through the non-residence of certain parties holding title under the foreclosure of the prior mortgage. Section 69, C. C. P., provides:

“If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms 'herein respectively limited, after the return of such person into this state; and if, after such cause of action shall have accrued, such person shall depart from and reside out of the state, the time of his absence shall not be deemed or taken as any part of the timé limited for the commencement of such action.”

Were we correct, in our former opinion, in holding that the statute of limitations was tolled owing to the nonresidence of Ferneding and Parks? After very full consideration of this question, we are of -the opinion that we were in error in so holding.

We concede that the courts of many, if not a majority, of the states seem to apply the provisions of statutes similar to section 69, supra, to every action which, in its nature, is an action in personam, regardless of whether or not such action puts in issue, and the relief sought therein is the determination of, some right, title, or interest in and to a res situate in the state wherein the action is sought to- be brought; and this regardless of whether such courts, through a decree directed to itfae property or to some right, title, or interest therein, instead of through a decree operating upon the conscience of the defendant and decreeing that he shall do, or refrain from doing, some special act, may 'have been able at any time to have granted full relief to the party entitled thereto. There is, however, no state whose courts hold that, simply because a party defendant cannot be served with process within such state, they have no jurisdiction to determine and enforce the rights, if any, of a party plaintiff who claims some right, title, or interest in and to a res situate within such state. For any court to so 'hold would, in effect, be to deny the sovereignty of its state. Yet a minority of the members of this court contend that a suit to redeem land from a lien can only be brought in that jurisdiction wherein personal service of process upon the defendant can be had. If this were true, then certainly section 69, supra, would apply to suits to redeem, and the statute of limitations would not 'have run when this suit was commenced.

[3] There are many actions relating to real property, or some right, title, or interest therein, which can b'e brought in states other than those wherein the land is situate, provided jurisdiction of the parties can be acquired therein. Such actions are limited almost or quite exclusively to those equitable actions wherein the relief sought can be effectually enforced through a decree in personam, being cases based upon fraud, trust, or upon some privity of contract or estate. Such actions are further limited by the courts of some states — by refusing jurisdiction in actions between parties both of whom are nonresidents of such state, unless the action is based upon a contract entered into by such parties within such state; by refusing jurisdiction in any action based upon a contract, unless such contract was entered into within the state. Dicey on the Conflict of Daws, 216; notes to Proctor v. Proctor, 69 L. R. A. 673. Conceding, however, that an action seeking redemption from a lien (mortgage, judgment, tax, or other lien), or one seeking the specific performance of a contract to convey real estate, or one seeking the cancellation or rescission of a contract relating to real estate, is- properly brought in a sítate other than that where the res is situate, but -in a state where personal service can be and is had upon the defendant, yet, it being a fundamental truth that a decree from the court of one state cannot, in iteslf, affect real property situate in another state, and that, for that reason, no decree rendered in such action can bring effective relief, except when, through such decree, the party against whom it is directed is forced to execute such instrument as may be necessary to protect the other party’s rights (notes to Proctor v. Proctor), after a decree is rendered' in'such an action, if the party against whom it is rendered dies or leaves the state wherein such decree was rendered without having complied with the terms thereof, the prevailing party has, in effect, achieved nothing — ¡he cannot record .his decree in the state wherein the land is situate; he cannot sue upon it in the courts of such state; in fact, he stands where he did before suit brought.

[4] It is for these reasons that statutes such as our section 112, C. C. P., are enacted. This section provides:

“Where the person on whom the service of the summons is, to be made, cannot, after due diligence, be found within the state, * * * and it * * * appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this- state, such court or judge may grant an -order that the service be made by the publication of a summons in either of the following cases: * * *

“4. Where the subject of -the action is real or personal property in this state, and the defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein.”

Under this statute' every action affecting real property in this state, whether -such action be one which might be brought in the state of the residence of the defendant or not, can be brought in the courts of this state and -complete relief given by our courts by virtue of their jurisdiction over the res. Such actions, though personal in their nature, and therefore actions in whi-ch decrees directing that the party against whom it is entered shall execute the. necessary papers to protect the other party’s rights might be rendered if personal ’service of -process has been had upon such party, yet, owing to the fact that the decree which may be entered therein, no matter whether service upon the defendant was personal or constructive ,is one which acts directly upon the right, title, or interest claimed' in the res, and determines and establishes the parties’ rights without the necessity of any act upon the part of either party, are sometimes spoken of as actions “in rem,” though more properly spoken of as “quasi in rem.”

[5] Thus an action for redemption, in so far as it seeks to enforce the relief sought through the medium of the defendant himself, is in every sense personal, and therefore transitory; while such action, in so' far as it seeks a decree affecting directly any right, title, or interest in real property, is an action pertaining to the res, and therefore local — in the one, the decree would direct the defendant to execute such instruments as might be necessary to protect plaintiff in his rights; in the other, the court, by its decree, would directly protect such rights.

[6] We think the reason for the enactment of section 69 is too clear to admit of question. It was enacted to protect from loss, through mere lapse of time, all those legal rights for the preservation and .enforcement of which a party might have a right of action in our courts, but which rights, if it were not for such section 69,' might become lost to the party through the bar, by such lapse of time, of any right of action in our courts. No other possible purpose could have prompted such enactment. ,

[7] One of- the maxims of jurisprudence, and one recognized by the statutes of this state (section 2409, C. C.), is, “When the reason of a rule ceases, so should the rude itself;” or as stated in Taylor v. McGill, 6 Lea (Tenn.) 294, “What is not within-the purpose or meanig nor within the mischief to be remedied by a statute cannot be held included in the law, even though literally the language might include it.” This maxim is applicable to "the Code of Civil Procedure, though not so declared by express provision of statute.

[8] Applying the above maxim of jurisprudence, we hold: where a party has, through an'action in the court of any state, a complete and adequate remedy for the redress of a wrong or the protection of a right — a remedy the enforcement of which is unaffected by the absence from such state of the one against whom he makes his claim to relief — such absence does not, under section 69, supra, extend the time within which he must bring an action to enforce his rights; in other words, section 69, supra, has no application where, regardless of the absence from the state of the party against whom one has a right of action to enforce some legal right, such legal right can be fully enforced through a decree acting directly upon property within this state, and which decree can rest upon constructive service of process. Taylor v. McGill, supra; Boro v. Hidell, 122 Tenn. 80, 120 S. W. 961, 135 Am. St. Rep. 857; Omaha, etc., v. Parker, 33 Neb. 775, 31 N. W. 139, 29 Am. St. Rep. 506; Hogaboom v. Flower, 67 Kan. 41, 72 Pac. 547. The Nebraska court says:

“If the right to bring an .action during the defendant’s absence was not suspended,. * * * the statute was not available as a defense.”

The Kansas court says:

“The fact that the holder of the legal title was absent from the state did not prevent her [plaintiff] from enforcing such lien by a proper action at any time after the maturity of the debt.”

[9] In the present case .appellant seeks two things — to be allowed to redeem from the prior mortgage, and to foreclose his own mortgage. Hjis right to redeem from the first mortgage vas a right entirely separate and distinct from his right to foreclose his mortgage, and was a right which he might have enforced in a separate action at any time since his right to redeem came into existence.

[10] Personal service upon the person or persons from whom redemption was sought was never necessary in order to give to the courts of -this state jurisdiction to enter a decree which would fully determine and protect appellant’s rights as a redemptioner.

[ 11 ] Furthermore, as shown by appellant’s prayer, no personal judgment for deficiency upon foreclosure was sought, and therefore the courts of this state could, at any time after his right to foreclose arose, have granted to him all the relief he now seeks — both that pertaining to redemption and to foreclosure — and could have granted all this relief, though personal service of process could not have been made upon a single defendant.

It therefore being clear that the statute of limitations had, long prior to the commencement of this action, barred appellant’s right to the relief sought herein, it becomes unnecessary to consider -further than we already have any of the errors urged upon this appeal.

The former decision of this court herein is reversed, and the judgment of the trial court affirmed.