Holmes v. Bartlett , 160 Ill. App. 443 ( 1911 )

Mr. Justice Thompson

delivered the opinion of the court.

There is no question concerning the facts in this case. The only question presented for our consideration is whether the statute of limitations pleaded by the devisees, the grantees of the executor of the mortgagor, is a defense to the foreclosure suit. The debt is the principal thing and the mortgage but an incident attached to the debt. The executor continued to act in the capacity of executor and trustee of the estate of the mortgagor until January, 1908. By the terms of the will the executor had full power and authority to continue the business qnd manage the estate for ten years after the death of the testator, or until October 9, 1901. The will conveyed the title to all the real estate of the testator to the executor in trust. The executor paid the interest on the note up to June 23, 1894, the time he conveyed part of the premises to Albert L. Bartlett. The executor contracted with Albert L. Bartlett and obligated him to pay the note and interest. By the deed made to Bartlett he had the right and it was his contractual duty to pay the note. By the terms of the will the executor had the right to keep the note alive until October 9, 1901, and any payment made within that time, by any person authorized by him to make such payment would have the same effect as if made by the executor. Waughop v. Bartlett, 165 Ill. 124.

On November 21, Í904, when the executor signed the certificate that $4,500 was unpaid on the note, he still held the title to all the remaining real estate covered by the mortgage that had not been conveyed to Bartlett, and was still acting as trustee and executor of the estate. While the will provided that the trust should not continue for more than ten years after the death of the testator, it does not mean that at the end of ten years the trust shall automatically cease, but it was his duty to close the trust within that time and interested parties might thereafter compel him to close the trust. The object of Eliza Fassett in getting the certificate made by him before she bought the note, obviously was to get from the executor, who still held title to all the real estate covered by the mortgage that he had not conveyed to Bartlett, a statement showing that the note and mortgage were still in force as to the real estate, the title of which was still held by the executor. The instrument executed by the executor at that time apparently was a consent to an extension of time against such real estate.

In this state, so long as a note is kept alive by any person authorized to keep it alive by payments or otherwise, a mortgage securing the note remains valid, and the personal representative of a decedent may stop the running of the statute of limitations either by part payment, a promise to pay or such an acknowledgment of the debt as will imply a promise to pay. Kraft v. Holzmann, 206 Ill. 548; Waughop v. Bartlett, supra; Whittaker v. Crow, 132 Ill. 627; Emory v. Keighan, 88 Ill. 482; Roberts v. Tunnell, 165 Ill. 631; Murray v. Emery, 187 Ill. 408; Holroyd v. Millard, 142 Ill. App. 392; Ott v. Flinspach, 143 Ill. App. 61; Perry v. Horack, 63 Kan. 88; Jackson v. Longwell, 63 Kan. 93; Skinner v. Moore, 64 Kan. 360. We are of the opinion that the payments made by Bartlett by the authority and procurement of the executor under the contract in the deed to Bartlett and the acknowledgment of the indebtedness made by the executor in 1904, kept the note alive and tolled the running of the statute. It is not necessary to say anything concerning the undivided third part conveyed by the executor to himself since that is included in the deed to his brother and sister with himself. The court erred in decreeing that the Derwents held the property conveyed to them freed from the lien of the mortgage. The decree is reversed and the cause remanded with instructions to the trial court to enter a decree of foreclosure against all the real estate covered by the mortgage, but that the real estate conveyed to Albert L. Bartlett be first sold to pay the indebtedness, and if that be insufficient, then, that the real estate conveyed to the Derwents, or such part thereof as is necessary, be sold to pay the deficiency remaining after the sale of the real estate conveyed to Bartlett.

Reversed and remanded with directions.