Andre v. Stilson

SPENCE, J. This action was brought to foreclose a mortgage executed by defendant Madeline F. Stilson in 1925. In 1926 defendant Stilson conveyed the property to her daughter, defendant Georgette A. Beckjord, also known as Georgette A. Moore, who will be hereinafter referred to as defendant Moore. In 1932 defendant Moore conveyed the property to defendant Jesse G. Beckjord, who will be hereinafter referred to as defendant Beckjord. Defendants Moore and Beckjord thereafter married. Defendants interposed the plea of the statute of limitations (Code of Civil Procedure, sec. 337). The trial court found against said plea and entered judgment decreeing foreclosure of said mortgage and the personal liability of defendants Stilson and Moore for any deficiency. Defendants Moore and Beckjord appeal from said judgment.

[336]All questions raised on this appeal relate either directly or indirectly to the plea of the statute of limitations. The note and mortgage were dated October 28, 1925. The note was in the sum of $3,000 and said note provided for payment of the principal “on or before three years after date”. The note therefore matured on October 28, 1928, and an action to foreclose the mortgage would normally have been barred unless commenced within four years after October 28, 1928. The complaint herein was filed on April 19, 1935. Plaintiff relied upon certain agreements and certain correspondence with defendants to defeat the plea of the statute of limitations.

Defendants first contend that “the mortgage and note were outlawed as to defendants Moore and Beckjord and it was error to render judgment against them for foreclosure thereof”. We find no merit in this contention.

We will first consider said contention with relation to defendant Moore and we will confine our discussion to certain correspondence had by plaintiff with defendant Moore in 1931 and after April 19th of that year. Such correspondence was had before the statute of limitations could have barred the action on the original obligation and was had within .four years of the filing of the complaint herein. While we find sufficient acknowledgments of the indebtedness in several letters of the defendant Moore written during that period, we may rest our conclusions upon a letter written by said defendant on July 25, 1931, and upon a letter written by plaintiff to said defendant on November 4, 1931, which last mentioned letter was signed as accepted by defendant Moore. The subject matter of most of the correspondence was the payment of interest and the views of the parties regarding possible renewal or extension. In the course of the correspondence, a dispute arose as to whether any suggested renewal should take the form of a mortgage or a deed of trust. It would serve no useful purpose to set forth all of the correspondence as the letters dated July 25, 1931, and November 4, 1931, are sufficient.