Reed v. Richardson

I am unable to see any justification for the decision in this case. Upon the facts and procedure followed it cannot be distinguished from Morrison v. Farmers Traders' State Bank,70 Mont. 146, 225 P. 123; the two cases are on all-fours. The application of the Morrison Case has been limited to some extent by subsequent decisions, but never directly or indirectly as to such fact conditions as are presented here; as to these it has been consistently affirmed. (O.M. Corwin Co. v. Brainard,80 Mont. 318, 260 P. 706; Vitt v. Rogers, 81 Mont. 120,262 P. 164; Skillen v. Harris, 85 Mont. 73, 277 P. 803.)

It is true that some apparent confusion has resulted from efforts to reconcile two sections of the Revised Codes of 1921: Section 8264, which provides for the extension of a mortgage by joint act of the parties pursuing "the formalities required in the case of a grant of real property," and section 8267, which permits the extension of a mortgage by affidavit filed by the mortgagor or his successor. As is observed in the majority opinion, between the mortgagor and the mortgagee a mortgage is good as long as the debt secured thereby is alive (section 8243); and as between them section 8267 has no application. (Skillen v. Harris, supra; Turner v. Powell, 85 Mont. 241,278 P. 512.)

The case of Jones v. Hall, 90 Mont. 69, 300 P. 232, 234, has little similarity to this. There the mortgagors did not have any defense to the mortgage foreclosure except the general statute of limitations, which it was necessary for them to plead, as they did. To sustain her case the plaintiff Jones attempted to show that the Halls had made a payment on the debt and thus kept it alive. If the debt were alive, as between the Halls and the plaintiff, the mortgage was good. Plaintiff had filed an affidavit of renewal under the provisions of section 8267, and this her counsel argued extended the life of the obligation. Respecting that we said: "Our attention is called to the cases ofMorrison v. Farmers Traders' State Bank, 70 Mont. 146,225 P. 123, Corwin v. Brainard, 80 Mont. 318, 260 P. 706, andVitt v. Rogers, 81 Mont. 120, 262 P. 164, where we said that Chapter 27, Laws of 1913, now section 8267, Revised Codes 1921, is in effect a statute of limitations operating as an amendment of section 8243, Revised Codes 1921, and from this plaintiff's counsel argue that the affidavits of renewal extended the life of the obligation. But upon reference to the history of section 8243, as given in Berkin v. Healy, 52 Mont. 398,158 P. 1020, and Vitt v. Rogers, supra, and considering the reasons for the enactment of section 8267, it is plain that the argument is not sound. These reasons are given in the MorrisonCase, the Corwin Case, and the Vitt Case. Section 8267 affects merely the lien of the mortgage; it does not extend the life nor affect the debt which the mortgage is given to secure." It will be remembered that the defendants Amos, the alleged second mortgagors, asked for the foreclosure of their mortgage only upon the contingency that plaintiff Jones' mortgage were held valid.

One who is not liable for the payment of a debt is under no obligation to plead the statute of limitations challenging its existence. When Richardson pleaded the special statute of limitations afforded by section 8267, he set up a perfect defense. As he had not become liable for the debt, it did not make any difference to him whether it was alive or not. When the vendee of the mortgagor connects himself with the debt by making payments upon it, of course a different situation arises. (Turner v. Powell, supra.) To say his plea based upon section 8267, wherein he followed the procedure in the Morrison Case exactly, is not good, and that he must plead against the life of the debt, which is no concern of his, presents a confusion of ideas. Such a contention is contrary to the plain intent of the statute and is not warranted by anything this court has ever said in construing it.

The majority opinion denies to Richardson a statutory right and places upon him a burden not justified by law. Worse yet, it does that which no court has the right to do; in effect it repeals a valid statute.

Rehearing denied May 22, 1933.