Stryker v. Rasch

ON PETITION FOR REHEARING A petition for rehearing has been filed herein by the cross-petitioner in this case. He contends that when an indebtedness is still alive as against a mortgagor, a person in adverse possession of the premises is not permitted to plead that the indebtedness is barred, for the reason that he is not in privity with the mortgagor, and the bar of the statute may be raised only by one in such privity. Counsel have overlooked the authorities which we cited in the original opinion to the effect that a person who has an interest in the land may set up the fact that a mortgagee's right is barred. 37 C.J. 710 and other authorities cited.

It is further contended that, even though the plaintiff may set up the statute, he did not do so in this case, and that such failure requires a judgment for the cross-petitioner herein. In that connection counsel complains because we assumed that the mortgage became due some time in 1922. The agreed statement of facts showed that the note was due, but did not show the time thereof. Hence it is in no manner inconsistent with our assumption. For some unaccountable reason the cross-petitioner failed to state in his pleading when his note and mortgage became due, and we, accordingly, assumed it to be due at once or within a reasonable time. We asked his counsel on the oral argument as to the due date, but he was unable to inform us. He knew, accordingly, that we were searching for light on the subject in order not to do any injustice, but he has failed to give it even in his petition for rehearing. In all probability, accordingly, and particularly when we take business usage into consideration, the note and mortgage of the cross-petitioner is actually barred, and to send the case back merely to give the plaintiff the opportunity to amend his pleadings — which in any event we should do under the circumstances of this case if it were necessary — would subserve no good purpose, and we might well deny the petition for rehearing on that ground.

It is ordinarily true that a claim that a cause of action is barred by the statutes of limitation must be specially pleaded. 37 C.J. 1213. A suit such as that before us involves two statutes of limitation, one, relied upon by plaintiff, relating to the time in which an action to recover real property may be brought — conferring title in the absence thereof — and one relating to the time in which foreclosure of a mortgage may be instituted. The periods happen to be the same under our statute — ten years. Counsel for the cross-petitioner argues that plaintiff should have pleaded specifically that the foreclosure of the mortgage is barred pursuant to the statute relating thereto — in other words, that plaintiff, relying on the statute relating to adverse possession, did not by that fact rely on the statute governing the time in which foreclosure of a mortgage may be had. Counsel for plaintiff argued that the bar of any statute has been sufficiently pleaded in the petition. Plaintiff alleged that he acquired title by adverse possession during a period of ten years, and that the cross-petitioner is barred from asserting whatever rights he had by reason of not asserting them during that period. Perhaps the allegations of the petition do not go quite far enough, on the theory of counsel for the cross-petitioner, in that they do not state that the rights of the cross-petitioner are barred by reason of not asserting them within ten years after the cause of action accrued, unless, possibly, that may be gathered from the implied statement that the cross-petitioner should have asserted his rights within that time. However that may be, assuming that it would have been better if plaintiff had been more specific, we do not think that the failure in that respect, particularly in view of the rule hereinafter stated, should be held to be fatal in this case. Courts, if they can, will avoid deciding a case on technical grounds. It must be borne in mind that the rule requiring the statute of limitations to be set up has its basis, in a case involving a contractual debt, first, in the fact that it is an affirmative defense, and second, that a debt is not extinguished by the statute, but that a moral obligation to pay remains; that, accordingly, the right to set up the statute is a privilege which may be waived, and that it is waived if not set up. Thus Wood, Limitations of Actions (4th ed.) Sec. 7, states that the debtor must interpose the plea of limitation. In a case like that at bar, in which the adverse possessor is not the debtor, no moral obligation for him to pay exists or remains, and such case cannot be treated in the same way as a case in which the bar of the statute is interposed by the debtor, and the only reason why he should do so is that the plea is an affirmative defense. And in the ordinary case, to which this case should be likened in this connection, the main, if not the only, reason for requiring such defense to be set up is to give the opposite party notice thereof, so that he may be able to meet it. Plaintiff's petition fully advised the cross-petitioner that all of his rights, of whatever nature, were claimed to be barred. The allegations thereof are wholly inconsistent with the recognition of any rights of the latter under the mortgage.

Furthermore, the rule appears to be that such affirmative defense is not necessary in cases in which the statute extinguishes the right or title. 34 Am. Jur. 339. The rights of the cross-petitioner were not extinguished by the statute relating to the time when foreclosure of a mortgage may be instituted. But they were extinguished, under the conditions and limitations set forth in our original opinion, pursuant to the statute under which title by adverse possession may be acquired. We held in the original opinion that adverse possession applies against the world from the time when such possession is first taken, and that the right of the mortgagee is substantially a right to interrupt that possession during the time within which he has the right to foreclose his mortgage. In other words, the right of the mortgagee to foreclose operates in the nature of an exception to the rule that adverse possession ripens into title during the prescriptive period. It has been held that when an adverse claimant has shown proper adverse possession during the prescriptive period, the burden to show that the period was interrupted is on the party who seeks to benefit thereby. Vance v. Ellerbe, 150 La. 388, 90 So. 735; Howell v. Garlington (Tex.Civ.App.), 270 S.W. 269. The interruption in this case could be made to appear only by a foreclosure herein commenced within the time allowed, by statute, but on the face of the cross-petition, as construed by us, the contrary appears. The same result follows from the general rule stated in 2 C.J.S. 818 (2 C.J. 264), that "where the party relying on adverse possession has established the facts necessary to show title thereby, the burden is on the parties denying the title to defeat the case so made." In the case at bar, the plaintiff made out a prima facie case to show title in himself by adverse possession. According to the rule just stated, the burden then devolved on the cross-petitioner to show that he still had a lawful right to foreclose his mortgage. He failed to do so, as shown on the face of the cross-petition. That is the conclusion we arrived at in the original opinion, and under the rule just stated, we see no reason why we should depart therefrom. There is nothing in the agreed statement of the parties herein which in any way is in conflict herewith. It cannot, we think, as counsel for cross-petitioner seemingly would have us do, be fairly construed as meaning that the note and mortgage is an unpaid and existing obligation of the plaintiff, but only that of the mortgagor. All the circumstances point to that conclusion, although, perhaps, counsel for plaintiff should have been somewhat more circumspect.

We see no reason for rehearing, and the petition therefor is, accordingly, denied.

Rehearing denied.

RINER, Ch. J., and KIMBALL, J., concur.