Moulton v. Williams

QUARLES, J.

(After Stating the Facts.) — The indorsement upon the note and mortgage in controversy, while called a “renewal,” is merely an acknowledgment or new promise to pay the debt, and therefore evidence of a waiver of the bar of the statutes of limitation. The plea of the statute is a personal one, and therefore may be waived, either in an action commenced, where failure to plead it waives it, or it may be waived by the debtor by writing, under the provisions of section 4078 of the Revised Statutes, which is as follows: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby.” The effect of said acknowledgment was to remove the bar, and to furnish, under the statute, “sufficient evidence” to “take the case out of the operation” of our limitation statutes, and start anew the running of the bar of the statute. Said indorsement did not make a debt. It did not renew the debt. It did not extend, add to, or take from the debt. It simply waived the bar of the statute. It affected the remedy alone. Much of the *427 misapprehension that exists as to the effect of statutes of limitation arises from the neglect of lawyers and judges to distinguish between the obligations of contracts and the remedy or right to enforce such obligations, or to recover damages for their nonperformance. The indorsement on the note in question did not create any new obligation on the part of the debtor, but it took the case out of the operation of the statute, or removed the bar of the statute up to the making of same; in ether words, it affected not the debt, but the remedy thereon. What is said in regard to the principal obligation is also applicable to the mortgage. The mortgage is an incident to the debt. It follows the debt, is collateral to it, and stands or falls with the debt. So long as the creditor is entitled to a judgment for the debt evidenced by his note, so long he may, generally, be entitled to enforce the security given to secure its payment. (Kelly v. Leachman, 3 Idaho, 629 , 33 Pac. 44 ; Law v. Spence, 5 Idaho, 244 , 48 Pac. 282 .) If, by our statutes, the security was extinguished by the lapse of a time certain, its life' limited by statute, regardless of whether the remedy on the principal object was lost by reason of the bar •of the statute or not, as is the case in California, the rule would be otherwise. The life of the mortgage is not limited in this state. It never ceased to exist; therefore it has not been renewed. It secures the same debt, and hypothecates the same property, in the same form, for the same purpose, and to the same effect as when originally given; therefore the mortgage has not been extended. Section 3351 of the Eevised Statutes, has no application to this case. That section applies to the instrument itself, not to the remedy of the mortgagee. (Willows v. Rosenstein, 5 Idaho, 305 , 48 Pac. 1067 .) Under the statute, supra, the lien of the mortgage cannot be extended beyond its terms so as to secure a debt not named in the mortgage, or to hypothecate property not named in the mortgage, except by writing acknowledged as required in case of a conveyance of real property.

The appellants contend that the action was barred by the Tunning of the statute even after the written indorsement of acknowledgment. That acknowledgment was made September 19, 1890. The mortgagor and debtor died March 21, 1894. *428 The appellant Williams was appointed administrator of said deceased by letters issued to him by the proper probate court on January 3, 1895. This action was commenced November 31, 1895, within one year, and was authorized by the provisions of section 4071 of the Revised Statutes. It is unnecessary to decide whether the indorsement on the note and mortgage waived the running of the statute for the next ensuing four months from its date, in addition to the time fixed by the statute in which the action might be brought, and we do not pass on that question. The original record of the mortgage gave the appellant bank constructive notice of its existence, and placed it upon inquiry as to the real facts. It was charged with notice that the debtor might waive the bar of the statute. Before levying upon and selling the mortgaged property, it should have inquired into the fact as to the running of the bar of the statute or waiver of the same. The lien of the mortgage exists in this case as against the heirs and legal representative of the deceased mortgagor, and, as the appellant bank has not shown any title by prescription to the mortgaged property, the lien exists as against it. The judgment appealed from is affirmed, with costs to respondents.

Huston, C. J., and Sullivan, J., concur.