Citation Numbers： 139 P.2d 547, 172 Or. 9
Judges： BAILEY, C.J.
Filed Date： 4/21/1943
Status： Precedential
Modified Date： 1/13/2023
The mortgage in this case contained the following provision:
"The mortgagors consent to a personal judgment for the payment of the debt hereby secured, irrespective of this security."
As an express promise or covenant, this provision is exactly what it purports to be and no more, viz., *Page 16 consent to the entry of a personal judgment against the mortgagors, "for the payment of the debt". It is as if they had said, "if suit is brought to foreclose this mortgage, we consent to a personal judgment against us `for the payment of the debt hereby secured'"; or, "we consent that a personal judgment may be taken against us in respect of this debt". In order to construe the proviso into a covenant to pay, it is necessary to say that the language used, which does not express a promise to pay the debt, implies one. However, in Oregon, a mortgage cannot be construed so as to imply such a promise. (Section 68-101, O.C.L.A.)
The majority opinion points out that, at the time when the complaint was filed, the note was barred by the six-year statute of limitations. (Section 1-204, O.C.L.A.; 34 Am. Jur., Limitation of Actions, sections 338, 339 and 353.) By the same statute, the debt itself was barred likewise.
The right of action in personam upon the debt having been barred by the statute of limitations, it seems clear that there can be no action upon the covenant to permit personal judgment to be entered upon the debt. The covenant cannot possibly have the effect of galvanizing a dead debt into life. The judgment should be reversed.