Woodward, J.
Without stating all the differences on the facts, which ai-ise between the parties, we shall state and consider them, as they appear to us in the result. ;
In December, 1843, the complainant borrowed money of Ni chard Waller, and conveyed to him as security, lots number eighty-two and eighty-three,in the town of Dubuque, by a deed of absolute conveyance. At the maturity of the debt, he borrowed of the respondent, and discharged Waller’s claim, and caused the latter to convey the same lots to Chadwick. This was done in July, 1845. In July, 1846, [132]*132. Chadwick executed to Montgomery a bond, reciting that the latter had borrowed of the former the sum of $225,00, ■and to secure the payment of the same, had “ deeded to him, through Richard Waller,” the said town lots, and with a condition, that if said Montgomery should pay the said Chadwick the sum of $251,66, on the 1st of December, 1816, then the latter should recover the lots, and in case of a failure to pay, the obligation was to be void.
The respondent,. first, denies that this transaction amounts to a mortgage, but urges that the obligation given ■by him, is but a bond to couvey, on terms which have been forfeited. We cannot regard it otherwise than as a mortgage. The bond of the defendant is explicit, that there was a loan of money, and that the payment of this, was secured by the lots conveyed through Waller. It is a much stronger case, in the claim to be regarded as mort gage, than many which have occurred. It is unnecessary to refer to authorities beyond those of complainant’s brief. The-testimony of Waller, also, goes to confirm this view.
In the next place, the defendant sets up the lapse of time, as a bar to the right to redeem, in analogy to the statute of limitations. The time for payment in the original bond of Chadwick, was December, 1816. By an indorsement thereon, he extended the time to the 1st of April, 1817. This suit was commenced in June, 1857. Admitting the existence of a limitation in equity, in analogy to the statute, the question is to be tried, as if the complainant had brought his action to recover possession; and we will inquire how the provisions concerning limitation are to be applied. Code, sections 1671, 1672, 1673.
The statute limits real actions, or those for the recovery . of real property, to ten years. This ten years dated from the accruing of the cause of action, and not from the taking effect of the statute. . Section 1671 makes the statute retrospective, or applies it to existing causes of action. But causes' of action then existing, and not barred by the former act, were to be allowed, after the passage of the Code, not less than one-half the [133]*133time therein prescribed. This was directed, in order that causes then existing, should not be suddenly and unexpectedly cut off, which, it has been held, could not legally be done. The time therein prescribed for real actions, w'as ten years, and, of course, one-half that time was five years.
If the complainant’s right accrued prior to July 1, 1851, he was entitled to at least five years in which to commence his action. This time he did have before he commenced, for his action was broglit in June, 1857. But he was entitled to ten years from the time his right accrued. He sued in June 1857, and this brings us to the quection, when his right, or cause of action, first arose. These are all of the provisions relating to limitation, which apply to the complainant’s case, for the remaining section 1673, only provides that, in cases in which the time allowed by the former act is not enlarged by the Code, the party shall not have more time in all, than was allowed by the previous act. In the case of real actions, the time is not enlarged, but is lessened. This section would have applied, if the right liad accrued, for instance, in 1835. Then section 1672 would have given the “ one-half,” or five years, but qualified by section 1673, by which his whole time should not exceed the twenty years giveu by the former act; and than he could have only so much of the one-half or five years as would complete the former limitation of twenty years. This case, togetherwith that of Wright v. Keithler, ante 92, overrules Phares v. Walter, 6 Iowa, 106, upon the point of limitation in actions for realty.
"We now inquire, when the cause of action arose ? The defendant pleads that it did not accrue within ten years before the commencement of the action. On this point, the testimony is very indefinite, and leaves the mind uncertain.
The evidence shows that Montgomery left the lot, in the fall of the year 1846, and either then, or in the spring following, went to Galena. It shows that Chadwick was in possession of the lots in the spring of 1847, and one witness says, “early in the spring.” Perhaps we might say, he was in possession before June — the month in which the [134]*134■action commenced in the year 1857 — but for ouglit that appears, he may have gone into possession when Montgomery left in the fall of 1S16, or -in the spring before the debt fell due, which was the first of April, 1817.
. . Now, the right of action to redeem, did not accrue to Montgomery, and consequently the statute would not begin .to run against him, until Chadwick took possession, or began to hold the possession, for the purpose of foreclosure; and this must be found from his acts, and the circumstances. The testimony fails to determine this, and even to show whether his possession began before or .after the debt became due. Of course, therefore, the respondent fails to sustain his answer in this respect, and we are led to consider the question relating to accounting, and to the improvements.
We think Chadwick should be held to account, and be allowed for the improvements. He answers that, in consequence of the length of time passed, he is unable to render an account. When he is thus unable, the rule is,'that he be charged with a fair occupying rent. Gordon v. Lewis, 2 Sumner, 150; Clark v. Smith, 1 Saxton, (N. J.) 23. But regarding it as rent, or use and occupation strictly, to be set off against the debt, it is to be limited to the property as it was, exclusive of the improvements.
We then come to the question of the improvements. The general rule is, that the mortgagee in possession, is not entitled to allowance for such as he may have made, (although it be for necessary repairs); for in this way he increases the difficulty of redemption, by requiring the debtor to pay more money ; and further, ho may thus compel the debtor to pay for that which he does not wish. But, as the books hold, under some circumstances, he may be allowed for valuable and lasting improvements — those which increase the value of the estate. See the cases above cited, and Dougherty v. Colgon, 6 Gill. & J., 275,and authorities in argument of counsel. In allowing them in the present case, however, it is under the consideration that they shall be made from the rents and profits. And in this point of [135]*135Anew, the rents are to be calculated on the improvements themselves, as Avell as the lots, as they were, before these were put upon them. And here, too, if the mortgagee is unable to render an account of sums received, he is to be charged with a fair occupation rent.
• Whilst ChadAvick has been in possession, Montgomery has been living at Galena, and but a few miles from Dubuque.
Free access — add to your briefcase to read the full text and ask questions with AI
Woodward, J.
Without stating all the differences on the facts, which ai-ise between the parties, we shall state and consider them, as they appear to us in the result. ;
In December, 1843, the complainant borrowed money of Ni chard Waller, and conveyed to him as security, lots number eighty-two and eighty-three,in the town of Dubuque, by a deed of absolute conveyance. At the maturity of the debt, he borrowed of the respondent, and discharged Waller’s claim, and caused the latter to convey the same lots to Chadwick. This was done in July, 1845. In July, 1846, [132]*132. Chadwick executed to Montgomery a bond, reciting that the latter had borrowed of the former the sum of $225,00, ■and to secure the payment of the same, had “ deeded to him, through Richard Waller,” the said town lots, and with a condition, that if said Montgomery should pay the said Chadwick the sum of $251,66, on the 1st of December, 1816, then the latter should recover the lots, and in case of a failure to pay, the obligation was to be void.
The respondent,. first, denies that this transaction amounts to a mortgage, but urges that the obligation given ■by him, is but a bond to couvey, on terms which have been forfeited. We cannot regard it otherwise than as a mortgage. The bond of the defendant is explicit, that there was a loan of money, and that the payment of this, was secured by the lots conveyed through Waller. It is a much stronger case, in the claim to be regarded as mort gage, than many which have occurred. It is unnecessary to refer to authorities beyond those of complainant’s brief. The-testimony of Waller, also, goes to confirm this view.
In the next place, the defendant sets up the lapse of time, as a bar to the right to redeem, in analogy to the statute of limitations. The time for payment in the original bond of Chadwick, was December, 1816. By an indorsement thereon, he extended the time to the 1st of April, 1817. This suit was commenced in June, 1857. Admitting the existence of a limitation in equity, in analogy to the statute, the question is to be tried, as if the complainant had brought his action to recover possession; and we will inquire how the provisions concerning limitation are to be applied. Code, sections 1671, 1672, 1673.
The statute limits real actions, or those for the recovery . of real property, to ten years. This ten years dated from the accruing of the cause of action, and not from the taking effect of the statute. . Section 1671 makes the statute retrospective, or applies it to existing causes of action. But causes' of action then existing, and not barred by the former act, were to be allowed, after the passage of the Code, not less than one-half the [133]*133time therein prescribed. This was directed, in order that causes then existing, should not be suddenly and unexpectedly cut off, which, it has been held, could not legally be done. The time therein prescribed for real actions, w'as ten years, and, of course, one-half that time was five years.
If the complainant’s right accrued prior to July 1, 1851, he was entitled to at least five years in which to commence his action. This time he did have before he commenced, for his action was broglit in June, 1857. But he was entitled to ten years from the time his right accrued. He sued in June 1857, and this brings us to the quection, when his right, or cause of action, first arose. These are all of the provisions relating to limitation, which apply to the complainant’s case, for the remaining section 1673, only provides that, in cases in which the time allowed by the former act is not enlarged by the Code, the party shall not have more time in all, than was allowed by the previous act. In the case of real actions, the time is not enlarged, but is lessened. This section would have applied, if the right liad accrued, for instance, in 1835. Then section 1672 would have given the “ one-half,” or five years, but qualified by section 1673, by which his whole time should not exceed the twenty years giveu by the former act; and than he could have only so much of the one-half or five years as would complete the former limitation of twenty years. This case, togetherwith that of Wright v. Keithler, ante 92, overrules Phares v. Walter, 6 Iowa, 106, upon the point of limitation in actions for realty.
"We now inquire, when the cause of action arose ? The defendant pleads that it did not accrue within ten years before the commencement of the action. On this point, the testimony is very indefinite, and leaves the mind uncertain.
The evidence shows that Montgomery left the lot, in the fall of the year 1846, and either then, or in the spring following, went to Galena. It shows that Chadwick was in possession of the lots in the spring of 1847, and one witness says, “early in the spring.” Perhaps we might say, he was in possession before June — the month in which the [134]*134■action commenced in the year 1857 — but for ouglit that appears, he may have gone into possession when Montgomery left in the fall of 1S16, or -in the spring before the debt fell due, which was the first of April, 1817.
. . Now, the right of action to redeem, did not accrue to Montgomery, and consequently the statute would not begin .to run against him, until Chadwick took possession, or began to hold the possession, for the purpose of foreclosure; and this must be found from his acts, and the circumstances. The testimony fails to determine this, and even to show whether his possession began before or .after the debt became due. Of course, therefore, the respondent fails to sustain his answer in this respect, and we are led to consider the question relating to accounting, and to the improvements.
We think Chadwick should be held to account, and be allowed for the improvements. He answers that, in consequence of the length of time passed, he is unable to render an account. When he is thus unable, the rule is,'that he be charged with a fair occupying rent. Gordon v. Lewis, 2 Sumner, 150; Clark v. Smith, 1 Saxton, (N. J.) 23. But regarding it as rent, or use and occupation strictly, to be set off against the debt, it is to be limited to the property as it was, exclusive of the improvements.
We then come to the question of the improvements. The general rule is, that the mortgagee in possession, is not entitled to allowance for such as he may have made, (although it be for necessary repairs); for in this way he increases the difficulty of redemption, by requiring the debtor to pay more money ; and further, ho may thus compel the debtor to pay for that which he does not wish. But, as the books hold, under some circumstances, he may be allowed for valuable and lasting improvements — those which increase the value of the estate. See the cases above cited, and Dougherty v. Colgon, 6 Gill. & J., 275,and authorities in argument of counsel. In allowing them in the present case, however, it is under the consideration that they shall be made from the rents and profits. And in this point of [135]*135Anew, the rents are to be calculated on the improvements themselves, as Avell as the lots, as they were, before these were put upon them. And here, too, if the mortgagee is unable to render an account of sums received, he is to be charged with a fair occupation rent.
• Whilst ChadAvick has been in possession, Montgomery has been living at Galena, and but a few miles from Dubuque. He is proved to have been in the latter place, at' least twice, and from the circumstances shoAvn, we cannot • avoid the supposition, that he Avas there a greater number of times, in the period of nearly ten years, and that he must have known that the mortgagee was making improvements ; and there is no eAddence that he interposed any objection. In view of these, and of all the circumstances developed, we are induced to alloAv’the mortgagee for his improvements,, he accounting for their rents toAvard that end.
The cause is therefore remanded, with directions to the district court, to cause the respondent to account for the rents and profits of the lots, without the lasting improvements, and for these improvements separately. And if it appear to the satisfaction of the court, that he cannot thus account, that he be charged Avith a just occupying rent, the rents of the lots in the state in Avhich the respondent received them, being first applied to the extinguishment of the debt and interest, and the balance, if any, to the payment for the improvements; and the rents of the improvements being applied to the defendant’s remuneration for them. ..And should it be found that there is a balance due the mortgagee, in respect to his improvements, the mortgagor is entitled to his election, whether to pay such balance in money;' or to permit the mortgagee to hold possession until he is remunerated; and the district court will make such orders, from time to time, as may be necessary' to carry this decree into effect; and the decree heretofore rendered by the district court, in this cause, is reversed.
Wright, C, J., dissenting.