Nevitt v. Bacon , 32 Miss. 212 ( 1856 )

Handy, J.,

delivered the opinion of the court.

This was a bill filed by the appellees in the Superior Court of Chancery, on the 7th May, 1855, to foreclose a mortgage made by the appellant, bearing date the 26th May, 1841, to secure three promissory notes of the same date, to become due, one in one year, the next in two years, and the third in three years from that date.

The bill states that the appellant had made a prior mortgage upon the same property embraced in this mortgage, to James Brown, who filed his bill in the District Chancery Court at Natchez for a foreclosure, and that the appellees, upon their application, were made parties to that suit; that they prayed that an account should be taken of their mortgage debt, and that the same should be paid after the payment of the debt due to Brown that an appeal was taken by the appellees from the decree of that court to the Superior Court of Chancery, and from the latter court to this court, ^and that at October term, 1854, this court refused to allow an account to be taken of the appellees’ claim, because it was necessary that they should file a bill to foreclose their mortgage and redeem Brown’s, and affirmed the decree of the Chancery Court dismissing the suit as to the appellees, without prejudice to their right to file their bill to foreclose as to any surplus of the property not required to pay the prior mortgage.

.The bill offers to redeem the prior mortgage, alleges that the notes held by the appellees are unpaid, and prays an account and foreclosure.

The appellant demurred to the bill, setting up the Statutes of Limitation applicable to various aspects of the case as a bar; the demurrer was overruled; and this appeal was thereupon taken.

It appears that the last of the notes mentioned in the mortgage had been due nearly eleven years before the bill was filed, the two others having become due at a still earlier date.

The first position taken in support of the defence of the Statute of Limitations, is, that the right to foreclose the mortgage is barred by the same lapse of time that would bar an action at law upon the notes secured by it.

This rule is not without strong reason and principle, as well as respectable authority, to support it; and if it were a new question in this court, it would be worthy of grave consideration whether it should not be adopted. But the question has been frequently the subject of consideration here; and it is now as firmly settled as any doctrine of this court, that the remedy to foreclose the mortgage is not barred by the same lapse of time which bars an action upon the notes secured by the mortgage. Miller v. Helm, 2 S. & M. 697; Miller v. Trustees of Jeff. College, 5 Ib. 650; Bush v. Cooper, 26 Miss. 611; Trotter v. Erwin, 27 Ib. 772. We do not feel justified in changing a rule of this nature, thus established, and it must, therefore, be regarded as settled law.

The next ground of the defence set up in the demurrer and here relied on, is, that the period of time which would bar an action at law to recover possession of the mortgaged property, after condition broken, must bar a bill of foreclosure in equity; and, inasmuch as an action at law to recover possession was barred by the lapse of seven years after forfeiture, and more than ten years had elapsed in this case, the bill was barred.

This presents the question, whether any, and what time bars the right of the mortgagee to foreclose against the mortgagor continuing in possession upon condition broken.

It is insisted in behalf of the appellees, that the mortgagor is to be considered as the tenant at will or at sufferance, of the mortgagee, after forfeiture of the condition, and not as holding adversely, and that the Statute of Limitations does not begin to run until that relation is dissolved, and the mortgagor claims possession in opposition to tlie rights of the mortgagee.

By the strict rules prevailing at law, the mortgagor was a mere tenant, holding subject to the right of the mortgagee to enter immediately and even before default, unless there was a stipulation to the contrary. 4 Kent, Comm. 159, (8th edit.) This was upon the technical rule that the conveyance was upon condition subsequent, to be performed by the mortgagor; and until that was shown to have been performed, the estate vested in the mortgagee. And upon this principle, it was anciently held that whilst the mortgagor remained in possession without a covenant for that purpose, he was a tenant at will. He was at a later period held to be a tenant at sufferance. The relations of the parties were thus regarded under technical rules at law. But these rules have been materially changed by courts of equity in more modern times, and principles have been established of a more liberal character towards the rights of the mortgagor, and more in consonance with the true spirit and the substantial justice of such contracts. This docti'ine is, that the mortgage is a mere security for the debt, and that until a decree of foreclosure, the mortgagor continues the real owner of the fee, and the equity of redemption is considered as the real and beneficial estate. 4 Kent, 163.

The relation which existed between the mortgagor in possession before default, and the mortgagee at law, seems to have been a matter of great uncertainty. It is sometimes said to be a tenancy at will, and again it is variously called a tenancy from year to year, or at sufferance, or quasi at sufferance. Chancellor Kent calls it a “peculiar relation,” and considers the name mortgagor as conveying the best idea of what he calls his “ anomalous character.”' But by whatever term it may be designated, it appears to be plain that the relation of landlord and tenant cannot be said to exist to all intents and purposes, where the mortgagor retains possession after condition broken, in the absence of any agreement upon the subject in the deed. The mortgagor, before foreclosure, is not liable to the mortgagee for use and occupation, is not bound to keep the premises in repair, and is regarded as a freeholder, subject only to the equitable right of the mortgagee to foreclose in equity, or to enter at law, for the purpose of obtaining payment of his~debt. He is, then, rightfully in possession until the mortgagee exercises his right according to law to turn him out.

The question, then, is, within what time must this right be exercised, and what lapse of time is necessary to create the legal presumption that the right has been surrendered or lost ? From what time does the duty to exercise this right begin ?

It must commence at the time when the right of foreclosure accrued, or it can have no commencement; and unless it expire by the same lapse of time that would bar the right of entry or the recovery of possession at law, it is without limitation, and may be asserted against the continued possession of the mortgagor at the most remote period. Where possession has been delivered to the mortgagee, it is well settled that the right to redeem is barred by the same length of time that would bar his recovery of possession at law. And the interest of the mortgagee is a much less beneficial estate than that of the mortgagor in possession. The mortgagee in possession before foreclosure, holds subject to the right of the mortgagor to redeem. But after the period of the limitation o'f an action to recover possession at law, that right is presumed to have been released. So the mortgagor in possession holds subject to the right of the mortgagee to foreclose; and no reason can be perceived why payment of the debt should not be presumed from the same lapse of time, unless indeed no lapse of time can bar the claim of the mortgagee, which cannot be pretended.

It is not material to determine whether the possession of the mortgagor is to be considered as adverse to the right of the mortgagee or not. The substantial interest which the mortgagee has in the mortgaged premises, is, in equity, a claim upon them for the payment of his debt; and the question is, after what period of time and under what circumstances will that debt be presumed to be paid, and his claim upon the property depending upon it, discharged. This is settled in many recent cases, and upon principles which we consider altogether sound and just. The Supreme Court of the United States say in Hughes v. Edwards, “ that where a mortgagor has been permitted to retain possession, the mortgage will, after a length of time, be presumed to have been discharged by payment of tbe money or a release, unless circumstances can be shown, sufficiently strong to repel the presumption; as payment of interest, a' promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing, and the like. 9 Wheat. 497; Christophers v. Sparke, 2 Jac. & Walk. 234; 4 Kent, Comm. 201, 202; Angell on Lim. §§ 453, 454, 455, (3rd edit.) And the period fixed by the Statute of Limitations as barring an action for the recovery of possession, is held to be the fit and proper limitation to a bill of foreclosure. 4 Kent, 202; Jackson v. Wood, 12 John. Rep. 242.

This rule was held by this court in Benson v. Stewart et al., 30 Miss. 49, and we find no reason to change it.

And here it may be proper to remark, that what is said in that case, with respect to adverse possession, had reference to the party who purchased from the mortgagor in whose behalf the statute was not a bar when the bill was filed; and that party, not being protected by an adverse possession, under his purchase from the mortgagor, for a sufficient length of time to be protected by the bar, he would occupy the position in which the mortgagor stood, in whose favor the period of time necessary to constitute the bar had not run when the bill was filed against him. But it was not intended to say, that as between mortgagor and mortgagee, where the former had retained possession, after forfeiture, for a sufficient length of time, to constitute a bar under the statute, it was necessary that there should be, technically, an adverse possession by the mortgagor against the mortgagee, in order to render the defence available.

We are satisfied that both principle and authority sanction the rule, that when the-mortgagor has continued m possession for a sufficient length of time after forfeiture, and after the maturity of the debt secured by the mortgage, to bar the right of entry of the mortgaged premises, or an action to recover possession of the property conveyed, and an action at law upon the notes or other evidence of debt, a bill of foreclosure will be barred, unless there be circumstances shown sufficient to take the case out of the bar of the statute. And there being no such circumstances shown in this case, tbe statute of seven years was a bar, and tbe demurrer was a good defence to tbe bill.

Two other grounds are relied upon in bebalf of tbe appellees, against tbe bar of tbe statute.

Tbe first of these is, that as tbe bill alleges that tbe debts are due and unpaid, and that is admitted by tbe demurrer, this rebuts tbe presumption of satisfaction created by tbe statute, and that presumption cannot prevail. Tbe fallacy of this view is apparent from two considerations. First. The defence of tbe statute, set up by demurrer, is tantamount to a plea of tbe statute, and must be taken with reference to tbe particular ground of defence set up in it. Second. It is true, that tbe theory upon which the Statute of Limitations is founded is tbe presumption of payment from lapse of time. But tbe defence set up is not the presumption on which tbe statute is founded, but the bar created by tbe positive provisions of tbe statute. Tbe principle upon which tbe statute is founded is sometimes useful to be considered in applying it to doubtful cases ; but when tbe provisions are plain and positive, we have nothing to do with tbe principles upon which they are founded, in applying them to cases clearly embraced by them. Tbe defence is tbe statute itself, and not the theory upon which it was founded.

The other ground is, that the former suit having been dismissed as to the appellees, without prejudice to their right to bring .another suit, they are now entitled, in virtue of the privilege thereby reserved to them, to deduct the time of the pendency of that suit. This construction is justified neither by the terms nor the legal effect of the order referred to. The purport of such an order is, that the dismissal shall not operate as a bar to a new suit which tbe party might institute. Story, Eq. PI. § 798. It could never have been intended, even if it was competent for the court, to debar the appellant of any defence upon the merits of tbe case to which he was entitled by law; for that would have been to bestow a privilege upon the appellees, and at the same time to prejudice the rights of the appellant upon a matter not then presented for the determination of the court.

Let the decree be reversed, the demurrer sustained, and the bill dismissed.