Jones v. Lander ( 1886 )

Baker. P. J.

On the 3d day of July, 1871, John F. Lander, now deceased, made to the Rockford Insurance Company his promissory note for §5,000, due in five ye irs from that date, bearing ten per cent, interest, payable semi-annually and containing a clause to the effect that if the interest was not paid for thirty days after due, then the note was to be due and payable. To secure this note he executed a trust deed of the same date on real estate, to one R. P. Lane as trustee, and this trust deed «contained a provision that if default was made in the payment of the said moneys or interest at or before the time specified for such payment, then and in such case the trustee was authorized to sell and close up the trust. The first and second semi-annual installments of interest were promptly paid, but the third installment, due January 3, 1873, was not paid until the 13th day of March, 1873. Thereafter the interest was paid more or less promptly, to January 3, 1883.

In 1872 the note and trust deed'were sold, transferred and resigned for a. valuable consideration, to the estate of one Robert M. Brantingliam, deceased. In 1874 John F. Lander died, leaving his only son and child, Franklin C. Lander, one of the appellees herein, as his residuary legatee and devisee; by virtue xyhereof said Franklin C. Lander became and was possessed of the mortgaged premises, or of the equity of redemption therein.

On the 28th day of September, 1885, the appellant, Julian P. Jones, as administrator de bonis non mm testamento annexo of the estate of Robert M. Erantingliam, deceased, filed this bill in the Winnebago Circuit Court for the purpose of foreclosing the above mentioned trust deed, and from the bill the foregoing facts appear. The court sustained a demurrer to the bill, and dismissed it for want of equity at the cost of appellant.

The action of the Circuit Court was based upon the theory that by the failure Of the maker of the note and trust deed to pay the installment of interest that fell due on the third of January, 1873,- until more than thirty days after it was due, a right to foreclose or make sale, accrued, and that as the bill was not filed until after the expiration of more than ten years from the termination of such thirty days, the right to foreclose was barred by Sec. 11 of the Limitation Act of April 4, 1872, which provides that “no person shall 'commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrues.”

The ruling of the court in sustaining the demurrer and rendering a decree dismissing the bill was erroneous. *

In Means v. Harrison, 114 Ill. 248, it was held that the Limitation Act of 1872 had no application to a promissory note given in January, 1872, and due two years after the date thereof, but that such note was governed by the sixteen years limitation established, by the act of the 5th of November, 1849, which was in force when the note was executed.

In McMillan v. McCormick, 117 Ill. 79, it was held that under the Limitation Law of 1849, and under the Statute of Limitation in force prior thereto, it was the settled law of this State that mortgages and trust deeds were within the Statute of Limitations and barred thereby; that the debt was the principal thing and the mortgage or deed of trust a mere incident to the debt; that when the principal thing was named in the statute, that which was incident to it was covered by .the statute "by. necessary implication, although not expressed therein ; and that hence, when the debt was barred in sixteen years by the law of 1849, it was vacant and the mortgage or trust deed- securing it was also, by the same words, barred in that time. And the conclusion was reached that Sec. 11 of the Limitation Act of 1872 was prospective only in its operation, and did not apply to mortgages or deeds of trust executed and delivered prior to July 1,1872, the date that act went in force. The case of McMillan v. McCormick is exactly in point, and decisive of the matter now under consideration. It is wholly unnecessary to repeat the" course of reasoning by which the conclusions in Means v. Harrison and McMillan v. McCormick were reached; suffice it to say that in the latter case it was expressly held that the matter of -the construction to be given Sec."ll of 'the Statute of 1872 was riot governed by Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 Ill. 216, as the principle involved was not analogous to that involved in those cases.

It follows from what we have said that the decree of the; Circuit Court must be reversed and the cause remanded, with; instructions to that court to overrule the demurrer to the bill; of complaint of appellant.

Reversed and rerrmndeó,L