Wild v. Stephens , 1 Wyo. 366 ( 1875 )

By the Court,

Fisher, C. J.:

This was an action in chancery, brought to this court from Laramie county at March term, A. D. 1876. The record in this case shows that on the first day of.June, a. d. 1869, at Cheyenne, Laramie county, Wyoming territory, Isaac W. French, defendant in this action, made and delivered to one Henry J. Bogers three promissory notes, amounting in the aggregate to the sum of three thousand six hundred and ten dollars and seventy-four cents; two of them payable in sixty and ninety days and one at four months from the date thereof.

On the second day of June, A. D. 1869, the said French executed and delivered to the said Bogers a mortgage on certain lots in the city of Cheyenne to secure the payment of said notes. This mortgage was recorded in the records of Laramie county on the second day of April, A. D. 1870.

On the eighth day of November, A. D. 1869, John Stephens commenced a suit in the district court in and for Laramie county, in said territory, against Virginia G. Adams, Helen Green and Isaac W. French, partners as Adams, Green & Co., and Gilbert Adams. On the thirtieth day of April, A.D. 1870, a judgment was entered against defendants and in favor of said plaintiff for the sum of five hundred and sixty-eight dollars and five cents.

On the eighth of August, A. D. 1871, at the July term of the district court, in and for Laramie county, Francis M. Babcock and John Babcock, partners as Babcock & Co., recovered a judgment against Virginia Adams, Helen M. Green and Isaac W. French, late partners as Adams, Green & Co., and Gilbert Adams. The record states that on the day above named came the parties, and by agreement the cause is tried by the court, and a judgment was rendered against defendants, and in favor of plaintiffs, for the sum of four thousand one hundred and fifty-eight dollars and twenty-seven cents. The record fails to show how jurisdiction was obtained, but states that a trial was had by the agreement of parties.

It will be observed the singular mixture of the names of the parties. The Babcock firm, who recovered judgment against Adams, Green & Co., is shown by the record to be composed of Francis M. Babcobk and John Babcock, whilst the firm contesting in this action is composed of Thomas W. Babcock and John Babcock. This discrepancy of names is sufficient, in my judgment, to dismiss them as parties in the future consideration of this case, and I shall, therefore, confine myself to a discussion of the relations existing between John Stephens and the estate of Isaac W. French and J. E. Wild.

The appellants, upon the argument in this court, abandoned every objection which they had set up against the proceedings in the district court, except the plea of the statute of limitations. They claim that inasmuch as more than five years had elapsed from the date of the notes given by French to Bogers before suit was brought on them, that the statute, if pleaded, would become a bar to a recovery upon them, and that a failure to bring a suit on the notes, or to institute proceedings to foreclose the mortgage, it would only be necessary to plead the statute to defeat a recovery-on either the notes or on the mortgage, because they allege that the statute runs against the mortgage as well as against the notes. And that the judgment creditors had such an interest as would justify and empower the judgment creditors to plead the statute in bar of the rights of the mortgagee to recover.

From the above statement of this case I am relieved from the duty of any extended labor in disposing of the questions raised, and will content myself with saying that, in my opinion, no matter whether the statute might be pleaded against a recovery on the notes or not, the mortgagee certainly has an equitable right to recover on his mortgage, and I am supported in this view by ample authority, the case of Sparks v. Pico, found in 1 McAllister C. C. Rep. 479, cited in Angell on Lim. 87, note 5, where this language is used:-“But if action was barred by the statute of limitations, nevertheless the foreclosure of the mortgage may be proceeded with, at any time within the period of twenty years, by suit in equity.”

The same doctrine is held in the case of Longworth v. Taylor, 2 Superior Court of Ohio, cited in Seney’s Code, 13, note 49. This is the universal doctrine, unless it is differently provided for by statute. So that I have no doubt as to the right of the mortgagee to foreclose, notwithstanding the fact that the notes are barred, should the statute be pleaded. The statute of limitations, however, is a personal priviege, but it is only a privilege, and a debtor is not compelled to set it up, even though the notes may have run for twenty years, and even though that privilege attaches to the mortgage as well as to the notes, and while the mortgagor, in that case, has the right to plead the statute, if he fails to do so the mortgagee and payee of the notes may proceed to foreclose or collect by suit on the notes.

A subsequent judgment creditor undoubtedly has the right to plead the statute of limitation so as to defeat a prior incumbrance, if he is placed in a position to do so. But before he can set up such a plea he must occupy a position freed from all doubt on the question. How then do the parties to this action stand? I pass over the judgment obtained by Francis M. Babcock and John Babcock, partners as Babcock & Co., because I find that they are not contestants, but find that Thomas W. Babcock and John Babcock have some how got their names before this court. I therefore dismiss them and proceed to show that John Stephens is not in a position to plead the statute of limitations. John Stephens recovered a judgment against Adams, Green & Co., and it is admitted that Isaac W. French was a member of that firm. But before Stephens can interfere with the individual interests of French as a member of the firm, he must show affirmatively that he has exhausted his remedy against the firm. And after he has done so, section 833 of the code of civil procedure of 1869 of Wyoming Territory provides that: “If the plaintiff in any judgment rendered against any company or partnership shall seek to charge the individual property of persons composing the firm, it shall be lawful for him to file a bill in chancery against the several members thereof, setting forth his judgment and the insufficiency of the partnership' property to satisfy the same, and have a decree for the debt and an award of execution against all such persons or any of them as may appear to have been members of such company, association or firm.

Now if it is lawful for the judgment creditor to proceed in the w'ay pointed out by this section, surely it is unlawful for him to proceed against the individual members of a firm in any other way. Mr. Stephens having failed to pursue his remedy in the way provided by law, I think his relation.to the decree of Wild in foreclosing the mortgage is too remote to give him any standing in this court.

The proceedings in the court below are affirmed.