Grant v. Burr

Department No. 1, McKinstry, P. J.: 1st. The instrument annexed to the complaint, and marked “ Exhibit D,” is a deed of trust, which authorizes the trustees therein named to sell and convey the lands described, upon default in the payment of the note or interest, and is not a mortgage requiring judicial foreclosure. (Koch v. Briggs, 14 Cal. 256.) The doctrine of Koch v. Briggs has never been overthrown by subsequent decisions.

2nd. Appellant’s second point is, that the promissory note “ C ” —secured by the deed, “ D ”—was barred by limitation before “ default ” was declared by the Board of Directors of the Savings and Loan Society, and that all remedy against the security for its payment became barred with the note.

Section 17 of the Statute of Limitations, which was in operation before the Codes, provided that actions could “ only be commenced ” within the periods mentioned. (Hittell’s G. L., p. 635.) The provision of the Code of Civil Procedure is: “ The periods prescribed for the commencement of actions are * * * within four years, an action upon any contract, obligation, or liability, upon any instrument in writing,” etc. The Statute of Limitations is to be employed as a shield, and not as a sword; as a means of defense, and not as a weapon of attack. It is true that Arrington v. Liscom, (34 Cal. 365) has sometimes been supposed to hold the contrary. But Arrington v. Liscom, was, in effect, an action by one in possession to quiet title, under the 25th section of the former Practice Act. The plaintiff’s possession established his case prima facie, and—as against the assertion by the defendant of a right to the possession—plaint[301]iff was permitted to rely upon his five years adverse possession. In that case Mr. Justice Sawyer used the language following: “ Whatever may he true of personal contracts, it certainly cannot be said with reference to realty, in view of the authorities cited, that the statute only takes away a remedy, or that a right —a title—is not practically extinguished as to one party and acquired by the other. The five years adverse possession, practically at least, is conclusive evidence of title in the possessor.” Undoubtedly, as that case was presented, and for all “ practical ” purposes, it was immaterial whether the five years adverse possession was treated as operating a transfer of the title of the defendant to the plaintiff, or considered as creating an estoppel to the assertion of the defendant’s right to the possession. And the learned judge in terms reserved any expression of opinion as to the effect of the statutory limitations upon contracts relating to personalty.