#### FOWLER et al. v. WOOD et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

1. Statute op Limitations—Exceptions—Payments.

Defendant gave a mortgage on her land as collateral security for a bond which one F. had given to plaintiff to secure a debt of defendant’s husband to plaintiffs. The bond was signed by F. alone, but both F. and defendant’s husband joined in the execution of the mortgage, in which the only personal covenant was that of F. *Held,*that payments on the bond by defendant’s husband did not stop the running of the statute of limitations against the right to foreclose the mortgage. Pratt, J., dissenting.

2. Same—Absence prom State.

Where a mortgage is given as collateral security for the bond of a third person, and the obligor in the bond joins in the mortgage, though he has no interest in the mortgaged land, the absence of the mortgagor from the state does not stop the running of the statute of limitations against the mortgage.

Appeal from special term, Westchester county.

Action by Henry H. Fowler and Weeden Fowler against *7AT\ah*H. Wood and William H. Bishoff to foreclose a mortgage. From a judgment in favor of plaintiffs, defendant Wood appeals. Reversed.

Argued before BROWN, P. J., and PRATT, J.

A. J. Adams, for appellant.

Close & Robertson, for respondents.

BROWN, P. J.

The only question necessary to discuss upon this appeal is whether the cause of action upon the mortgage in suit is barred by the statute of limitations. The following facts appear from undisputed evidence, or were found by the trial court: Prior to the 3d day of March, 1856, Squire Wood, the husband of the appellant, was indebted to the respondents in the sum of $5,000. To secure payment of a part of such debt, Cyrus M. Ferris, a brother-in-law of Wood, on the date aforesaid, executed and delivered to the respondents his bond conditioned to pay $750 three years after date, with interest, and, as collateral security for the payment of said bond, the mortgage in suit was executed by the appellant, who was the owner of the mortgaged property. In 1872, Ferris removed *977from this state to Connecticut, where he died in about the year 1891. Wood paid $250 upon the principal of the bond, and the interest thereon each year until.March, 1890. He died in July, 1892. No-payment of principal or interest was ever made by the appellant,, nor did she ever authorize any one to make any payment on her behalf. This action was commenced in 1893. Wood and Ferris joined in the execution of the mortgage, but Mrs. Wood assumed no personal liability for the debt. The cause of action upon both bond and mortgage was complete on March 3, 1859. It was clearly outlawed at the time this action was commenced, unless the facts appearing-in evidence bring it within some of the exceptions of the statute of limitations. As to Ferris and the cause of action existing against him upon the bond, the operation of the statute was suspended during the period subsequent to his removal from the state; and the claim is made that the mortgage could be enforced as long as there was a valid, enforceable cause of action upon the bond. The respondents cite two cases to sustain this proposition,—Heyer v. Pruyn, 7 Paige, 465; Insurance Co. v. Covert, 3 Abb. Dec. 350, Neither of them touches the question here presented. In Heyer v. Pruyn there was a recognition of the mortgage as a valid incumbrance by an owner of the mortgaged property within 20 years preceding the commencement of the action, and all that was decided in, that case was that a subsequent purchaser was bound by such acknowledgment. Insurance Co. v. Covert discussed only the question of presumption of payment. The statute of limitations does not appear to have been pleaded. The court held that the presumption of payment arising after the'lapse of 20 years was not available to-the owner of the equity of redemption to defeat a foreclosure of a mortgage where the mortgagor had made payments within 20 years of the commencement of the suit, although not the owner of the property at the time of making such payments. Judge Grover says, in the course of his opinion, that the mortgage would continue until the debt was in some manner discharged, unless released from the lien by some act of the holder of the mortgage; but this remark was said in discussing the application to the facts of the rule of presumption of payment, and does not necessarily apply to the statute of limitations. Hughes v. Edwards, 9 Wheat. 489, referred to in the cases cited, was also a case of presumption of payment. These cases sustain the proposition that the mortgage and the cause of action thereon is subject to the dealings and acts of the debtor with reference to» the debt, but they are not authority for the broad proposition that the statute of limitations does not run against a cause of action upon a mortgage as long as an action can be. maintained upon the bond to which it is collateral; and the facts of this case, in my judgment, present a case where the cause of action on the mortgage has been lost while that upon the bond remains. The obligor never did any act with reference to the debt which took it out of the operation of the statute, and in this respect the case here presented is different from those cited.

The only payments ever made upon the bond and mortgage were made by Squire Wood. While the debt secured was originally his, *978he was not liable upon the bond or mortgage. He did not sign the bond, and the land mortgaged belonged to his wife, and the only personal covenant in the mortgage is that of Ferris. No payment was ever made on the bond by Ferris, and none by the appellant. Payments of principal and interest by Wood would not arrest the operation of the statute. The bond matured on March 3,1859. At that date the cause of action upon both bond and mortgage was complete, and the statute of limitations began to run against it. Nothing appears in the evidence to arrest the operation of the statute as to the appellant, except the fact that, before the expiration of 20 years, Ferris removed from the state. This act suspended the running of the statute as against him. Whether it also suspended the statute as to the cause of action against the owner of the mortgaged property is a question that, so far as my examination goes, has not prior to this case been decided in this state. The answer to the question, I think, is to be found in the statute itself. The statute of limitations does not discharge a debt, but acts upon the remedy solely (Waltermire v. Westover, 14 N. Y. 16-20); and no exception from its operation can be claimed unless it is expressly mentioned in the statute (Bucklin v. Ford, 5 Barb. 394; Levy v. Newman, 130 N. Y. 11-14, 28 N. E. 660). “General words of a statute must receive a general construction, and, unless there can be found in the statute itself some ground of restraining it, it cannot be restrained by arbitrary addition or retrenchment.” Bucklin v. Ford, supra. The Code provides that an action upon a sealed instrument must be commenced within 20 years after the cause of action accrued, but if, after a cause of action hás accrued against the person, he departs from the state, etc., the time of his absence is not a part of the time limited for the commencement of the action. This provision very plainly has reference solely to a cause of action against the person who departs from the state. It does not suspend the operation of the statute as to a person liable on the same cause of action who continues to reside within the state, nor was it intended to extend the time generally within which an action might be brought for the debt or the enforcement of a security collateral to the debt. It affects the remedy solely against the person who departs from the state. The appellant and Ferris were both liable to the plaintiffs, but their liability existed upon separate contracts and upon separate instruments. True, no action could be sustained on the mortgage without proof of the existence of the debt, but a sale of the mortgaged property would not have discharged the bond or released Ferris from his liability. In this respect the causes of action were separate and distinct. Ferris’ liability was personal, while the appellant’s was confined to the land mortgaged. Ferris was not a necessary party to a foreclosure of the mortgage, and the appellant could not be sued personally for the debt. Assuming, however, that the two causes of action were so far connected and dependent that Ferris could, by payment or acknowledgment, have kept alive the debt on the bond, and thus have taken out of the operation of the statute the cause of action on the mortgage, no such case is presented. He never did any act with reference to the debt after *979the execution and delivery of the bond. His presence in or absence from the state was not material to the foreclosure of the mortgage, and did not affect the cause of action therefor in the slightest degree. Suppose he had been a nonresident at the date of the bond and mortgage, and had never made a payment on it, would the statute never run against the mortgage? Ho reason is apparent to my mind why the fact of his removal from the state should suspend the operation of the statute of limitations as to the mortgage. The statute does not in terms declare such to be the effect, and it neither operated as an acknowledgment of the existence of the debt nor affected the remedy on the mortgage. To hold, therefore, that the statute did not run against the cause of action upon the mortgage, is to restrain its operation by an arbitrary addition to it. The conclusion here reached is supported by decisions in other states. 2 Jones. Mortg. §§ 1210-1212, and cases cited in the notes. In my opinion, the bar of the statute was complete at the commencement of the action, and the judgment should be reversed, and a new trial granted, costs to abide the event.

PRATT, J. (dissenting).

The coverture of Zillah Wood at the time she executed the mortgage is no defense. In equity, a married woman is regarded as a feme sole, and has power to dispose of her real estate, and incidentally to charge it for the debts of another. That has always been the rule in Hew York. The bond was not cut off by the statute of limitations, and consequently the collateral mortgage remained a valid lien. Judgment affirmed, with costs.