Opinion
January 8, 1906.
William L. Pattisson, for the appellant.
Seth S. Allen, for the respondent.
By the judgment appealed from the lands which at the time of the giving of the mortgage of August 2, 1879, belonged to the defendant Martin Dewey individually are directed to be sold. One defense interposed by him was that the cause of action upon that mortgage was barred by the Statute of Limitations as against him. By the terms of the mortgage it became due and payable August 2, 1881. There is no proof that he ever made any payment upon it or upon the bond given concurrent therewith, or authorized any one to do so. On the contrary, the proof is that he never made any such payments. More than twenty years having elapsed since the mortgage became due and before the commencement of the action, and no payments having been made thereon or authorized by him, the statute barred the action as against him. (Code Civ. Proc. §§ 380, 381; Mack v. Anderson, 165 N.Y. 529.) The fact that payments were made by Wallace Dewey and his wife, who joined with the defendant Martin Dewey in making the bond and mortgage, does not prevent the running of the statute as against Martin, who made no payments. ( Shoemaker v. Benedict, 11 N.Y. 176.) It is urged, however, by the respondent's counsel that the giving of the mortgage of November 2, 1889, by Wallace Dewey and wife, when the mortgagors had no title to the property mortgaged, was a fraud on plaintiff's assignor, and as the fact that the mortgagors had no title was not discovered until June, 1897, and as the fact that there was a prior mortgage was not discovered by the plaintiff until the summer of 1904, when she commenced the action, the running of the statute was suspended during the intervening time.
The answer to this suggestion is that there is no allegation of fraud in the complaint, and nothing from which it can be inferred, except the bare allegation that on November 17, 1885, the mortgagors, Wallace Dewey and wife, deeded the premises described in the mortgage of November 2, 1889, for an alleged consideration of $1,000 to Ellen Dewey. The complaint is not based on fraud or mistake, but the theory of it is that the plaintiff's assignor loaned the mortgagors, Wallace Dewey and wife and Martin Dewey, the sum of $332 for the purpose of paying off and satisfying the bond and mortgage of August 2, 1879, and that as Wallace Dewey and his wife were not the owners of the premises covered by the mortgage of November 2, 1889, at the time they gave the mortgage, the plaintiff was in equity entitled to have the satisfaction of the mortgage of August 2, 1879, canceled and the lien of that mortgage restored, the amount due thereon ascertained and to have the same foreclosed.
The plaintiff, therefore, is in no position to take advantage of the existence of any undiscovered fraud to prevent the running of the Statute of Limitations, for that question is not involved in the action under the pleadings.
The judgment must be reversed on the law and on the facts and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.