The opinion of the Court was delivered by
Mr. Cht.ej? JiisttciS Pope).
This was an action to foreclose a mortgage of real estate commenced on the 2oth day of November, 1901. The mortgage on 240 acres of land was executed on the 19th day of February, 1881, and duly recorded in the office of the register of mesne conveyances of Fairfield County, in said State, on the 7th day of March, 1881. The mortgage was executed to better secure the payment of a bond, in fact, executed on the 19 th day of February, 1881, the same day of the execution of the mortgage, which bond was in the penal sum of $1,078.31, conditioned for the payment of the full and just sum of $539.15, on the first day of December, 1881, without interest, until the maturity of said bond, by the defendant, Belton F. Lyles. Originally the bond and mortgage were executed to one Thomas W. Traylor and his assigns. The bond was next assigned, for valuable consideration, on the first day of February, 1882, to T. D. Feaster, and thereafter on the 13th day of December, 1887, for a valuable consideration, the said bond and mortgage were assigned and transferred by the said T. D. Feaster to one Thomas M. Lyles, which said Thomas M. Lyles was adjudged to be a person
non compos mentis,
and on the 31st day of January, 1899, one Amos F.
Davis was duly appointed by the court of probate of Fairfield County the guardian of the person and estate of the said Thomas M. Lyles, and as such became the holder of the aforesaid bond and mortgage; and the said Amos E. Davis began this action for the foreclosure of this mortgage on the 25th day of November, 1901; but subsequently, on the death of the said Thomas M. Lyles, the present plaintiffs, William H. Lyles and Thomas Lyles, as executors of the last will of Thomas M. Lyles, deceased, were substituted, by the order of Judge James Aldrich, the plaintiffs herein instead of Amos E. Davis, they being the lawful holders of said bond and mortgage of their testator.
It is admitted by the defendant, Belton E. Lyles, that the plaintiffs, as executors as aforesaid, are entitled to a judgment against the defendant for the amount due upon the bond hereinbefore recited, but the defendant denies that tlife mortgage hereinbefore referred ff> is a valid and subsisting lien upon his two hundred and forty (240) acres of land, because he says that under the laws of this State said mortgage ceased to be a lien on said lands after the 19th day of February, 1901, more than twenty years having expired since the creation of the lien of said mortgage, there being no note of payment on account or written acknowledgment of the debt upon the record of the mortgage. The cause came on to be heard by his Honor, Ernest Gary, Circuit Judge, who rendered his decree on the 17th day of June, 1904, which held that the plaintiffs were entitled to a judgment in foreclosure of the mortgage of land sued upon herein. The following extract from the decree we deem sufficient to put before us the issues passed upon by him:
“Counsel for the defendant contends, that under the pn> visions of section 2449 of vol. 1, of Code, the lien of the mortgage sought to be foreclosed is extinguished, as more than twenty years have elapsed since it was executed. The language of the Code is: ‘No mortgage, or deed having the effect of a mortgage, no judgment, decree or other lien on real estate, shall constitute a lien upon any real estate after
the lapse of twenty jrears from the date of the creation of the same.’ While it is true that since the execution of the mortgage and the commencement of the suit, a period of twenty years, nine months and four days have elapsed, yet I am of the opinion that the lien of the mortgage is still of force. The bond secured by this mortgage became due and payable, not from the date of its execution, but on the first day of December, 1881. So we find that since the bond became due and payable, there is a lapse of nineteen years, eleven months and twenty-four days. So the question is narrowed down to when the statute begins to' run, from the execution of the mortgage or from the breach of the condition of the bond; my conclusion is, that it runs from the breach of the bond. The words of the statute are, ‘from the date of the creation of the same.’
“When was the lien created, certainly not from the execution of the mortgage. The plaintiff could not have brought his suit to foreclose at that time, for the reason that there was no breach of the condition of the bond, and consequently no* lien that could have been enforced. True, it is that the lien of the mortgage would be referred back to the date of its execution to preserve an equity, but no such lien as the statute contemplated at the date of its execution as would give currency to the statute.
“For the foregoing reasons I think the lien of the mortgage was not barred at the commencement of this action. It is, therefore, ordered, that the same be foreclosed. It is further ordered, that plaintiffs have leave to apply at the foot of this decree for such order as may be necessary to cany into effect this decree, as I have not before me sufficient of the records to render a complete judgment.”
And from this decree the defendant, Belton E. Lyles, has appealed upon the following grounds :
“1. Because his Honor erred in that he should have held, that as more than twenty years had elapsed from the time of the execution of the mortgage described in the complaint to the time of the commencement of this action, that the said
mortgage had lost its lien under and pursuant to the provisions of section 2449 of the Code of Laws of 1902, and he should have declined to order any foreclosure of the same in this action.
“2.
Because having found as matter of fact that more than twenty years had elapsed from the date of the mortgage to the commencement of this action, his Honor erred in holding ‘that the lien of the mortgage is still of force.’
“3. Because his Honor erred in holding as follows: ‘When was the lien created, certainly not from the execution of the mortgage. The plaintiff could not have brought his suit to foreclose at that time, for the reason that there was no breach of the condition of the bond, and consequently no lien that could have been enforced.’ The error being (1) that lien of the mortgage was created,
ex necessitate rei
at the date of the execution of the mortgage; (2) that the lien is confounded with the cause of action, which in legal contemplation is entirely distinct therefrom.
“4. Because his Honor erred in holding that ‘the statute’ (section 2449 of the Code of Laws of 1902) ‘begins to run from the breach of the bond,’ such construction being contrary to the express words of the statute, which has no reference whatever to the bond.”
It is unnecessary to encumber this opinion with any reference to the issues herein involved except the lien of the •mortgage. Section 2449 of the Code of Laws of 1902 reads as follows: “No- mortgage or deed having the effect of a-mortgage, no judgment, decree or other lien on real estate, shall constitute a lien upon any real estate after the lapse of twenty years from the date of the creation of the same:
Provided,
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Mr. Cht.ej? JiisttciS Pope).
This was an action to foreclose a mortgage of real estate commenced on the 2oth day of November, 1901. The mortgage on 240 acres of land was executed on the 19th day of February, 1881, and duly recorded in the office of the register of mesne conveyances of Fairfield County, in said State, on the 7th day of March, 1881. The mortgage was executed to better secure the payment of a bond, in fact, executed on the 19 th day of February, 1881, the same day of the execution of the mortgage, which bond was in the penal sum of $1,078.31, conditioned for the payment of the full and just sum of $539.15, on the first day of December, 1881, without interest, until the maturity of said bond, by the defendant, Belton F. Lyles. Originally the bond and mortgage were executed to one Thomas W. Traylor and his assigns. The bond was next assigned, for valuable consideration, on the first day of February, 1882, to T. D. Feaster, and thereafter on the 13th day of December, 1887, for a valuable consideration, the said bond and mortgage were assigned and transferred by the said T. D. Feaster to one Thomas M. Lyles, which said Thomas M. Lyles was adjudged to be a person
non compos mentis,
and on the 31st day of January, 1899, one Amos F.
Davis was duly appointed by the court of probate of Fairfield County the guardian of the person and estate of the said Thomas M. Lyles, and as such became the holder of the aforesaid bond and mortgage; and the said Amos E. Davis began this action for the foreclosure of this mortgage on the 25th day of November, 1901; but subsequently, on the death of the said Thomas M. Lyles, the present plaintiffs, William H. Lyles and Thomas Lyles, as executors of the last will of Thomas M. Lyles, deceased, were substituted, by the order of Judge James Aldrich, the plaintiffs herein instead of Amos E. Davis, they being the lawful holders of said bond and mortgage of their testator.
It is admitted by the defendant, Belton E. Lyles, that the plaintiffs, as executors as aforesaid, are entitled to a judgment against the defendant for the amount due upon the bond hereinbefore recited, but the defendant denies that tlife mortgage hereinbefore referred ff> is a valid and subsisting lien upon his two hundred and forty (240) acres of land, because he says that under the laws of this State said mortgage ceased to be a lien on said lands after the 19th day of February, 1901, more than twenty years having expired since the creation of the lien of said mortgage, there being no note of payment on account or written acknowledgment of the debt upon the record of the mortgage. The cause came on to be heard by his Honor, Ernest Gary, Circuit Judge, who rendered his decree on the 17th day of June, 1904, which held that the plaintiffs were entitled to a judgment in foreclosure of the mortgage of land sued upon herein. The following extract from the decree we deem sufficient to put before us the issues passed upon by him:
“Counsel for the defendant contends, that under the pn> visions of section 2449 of vol. 1, of Code, the lien of the mortgage sought to be foreclosed is extinguished, as more than twenty years have elapsed since it was executed. The language of the Code is: ‘No mortgage, or deed having the effect of a mortgage, no judgment, decree or other lien on real estate, shall constitute a lien upon any real estate after
the lapse of twenty jrears from the date of the creation of the same.’ While it is true that since the execution of the mortgage and the commencement of the suit, a period of twenty years, nine months and four days have elapsed, yet I am of the opinion that the lien of the mortgage is still of force. The bond secured by this mortgage became due and payable, not from the date of its execution, but on the first day of December, 1881. So we find that since the bond became due and payable, there is a lapse of nineteen years, eleven months and twenty-four days. So the question is narrowed down to when the statute begins to' run, from the execution of the mortgage or from the breach of the condition of the bond; my conclusion is, that it runs from the breach of the bond. The words of the statute are, ‘from the date of the creation of the same.’
“When was the lien created, certainly not from the execution of the mortgage. The plaintiff could not have brought his suit to foreclose at that time, for the reason that there was no breach of the condition of the bond, and consequently no* lien that could have been enforced. True, it is that the lien of the mortgage would be referred back to the date of its execution to preserve an equity, but no such lien as the statute contemplated at the date of its execution as would give currency to the statute.
“For the foregoing reasons I think the lien of the mortgage was not barred at the commencement of this action. It is, therefore, ordered, that the same be foreclosed. It is further ordered, that plaintiffs have leave to apply at the foot of this decree for such order as may be necessary to cany into effect this decree, as I have not before me sufficient of the records to render a complete judgment.”
And from this decree the defendant, Belton E. Lyles, has appealed upon the following grounds :
“1. Because his Honor erred in that he should have held, that as more than twenty years had elapsed from the time of the execution of the mortgage described in the complaint to the time of the commencement of this action, that the said
mortgage had lost its lien under and pursuant to the provisions of section 2449 of the Code of Laws of 1902, and he should have declined to order any foreclosure of the same in this action.
“2.
Because having found as matter of fact that more than twenty years had elapsed from the date of the mortgage to the commencement of this action, his Honor erred in holding ‘that the lien of the mortgage is still of force.’
“3. Because his Honor erred in holding as follows: ‘When was the lien created, certainly not from the execution of the mortgage. The plaintiff could not have brought his suit to foreclose at that time, for the reason that there was no breach of the condition of the bond, and consequently no lien that could have been enforced.’ The error being (1) that lien of the mortgage was created,
ex necessitate rei
at the date of the execution of the mortgage; (2) that the lien is confounded with the cause of action, which in legal contemplation is entirely distinct therefrom.
“4. Because his Honor erred in holding that ‘the statute’ (section 2449 of the Code of Laws of 1902) ‘begins to run from the breach of the bond,’ such construction being contrary to the express words of the statute, which has no reference whatever to the bond.”
It is unnecessary to encumber this opinion with any reference to the issues herein involved except the lien of the •mortgage. Section 2449 of the Code of Laws of 1902 reads as follows: “No- mortgage or deed having the effect of a-mortgage, no judgment, decree or other lien on real estate, shall constitute a lien upon any real estate after the lapse of twenty years from the date of the creation of the same:
Provided,
That if the holder of any such lien or liens as aforesaid shall, at any time during the continuance of such lien, cause to be recorded upon the record of such mortgage, or deed having the effect of a mortgage, or shall file with the record of said judgment, decree or other lien, a note of some payment on account or some written acknowledgment of the debt secured thereby, with the date of such payment
or acknowledgment, such mortgage, deed having the effect of a mortgage, judgment, decree or other lien, shall be and continue to be a lien for twenty years from the date of the record of any such payment on account or acknowledgment:
Provided, further,
That nothing herein contained shall be construed to affect the duration of the liens of judgments as prescribed by section 309 of the Code of Procedure:
Provided, further,
That on and after the first day of January, 1903, the provisions of this act shall apply to all mortgages; those executed prior to the 34th day of December, 1879, as well as to those executed since that date.”
This provision of the law was enacted by the General Assembly of this State in the year 1879, which was ánterior to the creation of this debt and the mortgage given to secure it. While the force of the reasoning of the appellant’s attorneys is admitted to be strong, because it is based upon the language itself of section 3449, already quoted, and that there is no ambiguity in the language used by the legislature, which requires that the act shall be construed as it is written (Potter’s Dwarris on Statutes, pages 143 and 144) ; and the fact that the General Assembly of this State has, by the act of 1903 (34th Statutes at Large, page 87), so amended section 3449 of the Code,
supra,
as to exclude the mortgages on real or personal property by railroads from said section, relating, as the section does, to the date of the creation of the lien; and the further fact that, by the decisions of this Court, bonds, notes and mortgages on real estate, given to secure the same, have been held to be so essentially distinct as that the bar of the statutes, which applies to the bond or note, will not be allowed to shut off a recovery upon the mortgage itself given to secure the same
(Cleveland
v.
Cohrs,
10 S. C., 224;
Nichols
v.
Briggs,
18 S. C., 474); yet, in accordance with the dictates of natural justice and a recent adjudication of our own Court, as we hope to show, we have changed the adverse view to which we were at first inclined, and are now led to support the judgment of the Circuit Judge. It is suggested that the act of 1879, which is now section 3449
of our Code, was but a new rule of evidence whereby the bar of the statute of twenty years was to give place to an evidence of the non-payment of the debt secured by the mortgage, by providing that a note of payment on account, or some written acknowledgment of the debt, if recorded on the record of the mortgage, would give a fresh start to the statute of twenty years from the date of such entries on the record.
In the case at bar, the defendant-appellant admits that the debt secured by the mortgage is a valid and subsisting obligation, which he consents may be so adjudged by this Court, both the bond and the mortgage being admitted to fall within the provisions of section 111 of our Code of Procedure, which gives twenty years as the time within which suit may be brought. It 'seems to us that the decision of this Court in the case of
Ewbank
v.
Ewbank,
64 S. C., 434, 438, 42 S. E., 194, is conclusive of this matter. There Mr. Justice Jones, as the organ of this Court, declared: “No mere change in form of the debt secured by mortgage will impair the lien of the mortgage.
Gibbs
v.
R. R. Co.,
13 S. C., 253;
Burton
v.
Pressly,
Cheves Eq., page 1. While we have found no case in this State directly deciding the point in controversy, upon principle we think it must be held, with reference to' the statute of limitations, and
as between the original parties,
that the lien of a mortgage exists and is enforceable. The authorities in other jurisdictions sustain this view.
Schumackar
v.
Sibert,
18 Kan., 104, 26 A. M. Rep., 765;
Bottles
v.
Miller
(Ind.), 14 N. E. Rep., 732;
Murray
v.
Emery
(Ill.), 58 N. E. Rep., 328;
Harper
v.
Edwards
(N. C.), 20 S. E. Rep., 393;
Kenaston
v.
Lorig
(Minn.), 84 N. W. Rep., 323;
Johnson
v.
Johnson,
81 Mo., 331. See, also; 19 Am. & Eng. Law, 2 ed., 289” (italics ours).
If this be sound law, and this Court has so' decided, we do not see how we can escape the conclusion of the Circuit Judge.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.