Houghton v. Tolman

RowEix, C. J.

The question js whether a note secured by mortgage on real estate is within the provision of the Stat *469 ute of Limitations' that actions of assumpsit founded on a contract or liability expressed or implied shall be commenced within six years after the cause of action accrues and not after. This is a question of construction, concerning which the rule is, that when the statute is not restricted to particular causés of action, but provides that the action, by its technical denomination, shall be barred if not brought within the time limited, every cause for which it will lie is within the statute. McCluny v. Silliman, 3 Pet. 270 ; Black, Interp. Laws, 332. This rule brings the note in question clearly within the statute. That a note thus secured is within the statute, has often been recognized by this court without question. Reed v. Shepley, 6 Vt. 609 ; Sparhawk v. Buell, 9 Vt. 74 ; Richmond v. Aiken, 25 Vt. 326 ; Gleason & Field v. Kinney’s Admr. 65 Vt. 564 , 27 Atl. 208 . Indeed, this doctrine is recognized everywhere. Note to Kulp v. Kulp, 21 L. R. A. 550; 13 Am. & Eng. Law (2 ed.), 785, 786. But some of the cases hold that when the note is barred, the mortgage, being a mere incident of the debt, is also barred. But this is not the general doctrine, and was never the doctrine of this court. CoeeamER, J., in Reed v. Shepley, 6 Vt. 609 ; Redfield, C. J., in Richmond v. Aiken, 25 Vt. 326 . The true doctrine is, that the Statute of Limitations do es not extinguish the debt, but only bars the remedy; and that a mortgagee has two independent remedies, one upon the note, barred in six or fourteen years, according to whether the note is witnessed or not, and one upon the mortgage, barred in fifteen years, in analogy to the statute barring the right of entry into houses and lands in that time, and that the loss, for any reason, of either of those remedies does not affect the other, if the debt remains unpaid.

Plaintiff’s counsel dwells upon what the court has said in many cases about not presuming a mortgage to be paid until it has lain dormant fifteen years, and claims that that is impliedly *470 saying that the remedy on the note lasts as long as the remedy on the mortgage. But as the debt is not extinguished by barring the remedy on the note, but continues to exist for all purposes of foreclosing the mortgage until that remedy is barred also, the implication does not arise.

The court below was right, therefore, in sustaining the demurrer, but wrong in rendering final judgment for the defendant, as issues of fact stood joined to the country on the record, not disposed of.

Judgment reversed, demurrer sustained, that part of the replication to which it relates adjudged insufficient, and cause remanded.