
    EVIDENCE — GIFT—MORTGAGE—STATUTE OF LIMITATIONS.
    [Cuyahoga (8th) Circuit Court,
    February 4, 1907.]
    Marvin, Winch and Henry, JJ.
    Edward David, Admr. v. Caroline E. Fauble et al.
    1. Acknowledgment or a Barred Mortgage Lifts the Statute of Limitations.
    Where the statute of limitations has run against a note and mortgage, a recital in a subsequent mortgage, on the same premises, that the same is made “subject to” the former mortgage, is an acknowledgment of the first mortgage sufficient to take it out of the statute, and, although the remedy on the note is gone, the right to foreclose the mortgage remains.
    [For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 564-581. — Ed.]
    2. Loss of a Note does not Establish a Gift.
    The fact that a particular note cannot be found, coupled with evidence that deceased had made statements that he did not wish to leave any debts against his sister — the defendant — and that she would have nothing to pay after his death, is not sufficient evidence .to establish a gift of a note made by defendant and payable to deceased under the circumstances of this case.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3969, 3970; 4 Cyc. Dig., “Gifts.” §§ 32-49, 79-87. — Ed.]
    [Proof of this decision and syllabus was submitted to 'Judge Winch and corrected. — Ed.]
    •Appeal from Cuyahoga common pleas court.
    Edward David and J. C. Heald, for plaintiff;
    Acknowledgment in writing sufficient to arrest the statute of limitations. Harrell v. Davis, 108 Ga. 789 [33 S. E. Rep. 852]; Martin v. Somervell Co. 21 Tex. Civ. 308 [52 S. W. Rep. 556]; Belknap v. Gleason, 11 Conn. 160 [27 Am. Dec. 721]; Baily v. Smith, 14 Ohio St. 396 [84 Am. Dec. 385]; Fisher v. Mossman, 11 Ohio St. 42; Taylor v. Hunt, 118 N. C. 168 [24 S. E. Rep. 359]; Gary v. May, 16 Ohio 66.
    No new promise being made by decedent’s widow, or partial payment, or acknowledgment in writing, it would not bind decedent’s estate. Lawton v. Adams, 7 Circ. Dee. 129 (13 R/233) ; Torbit v. Heath, 11 Col. App. 492 [53 Pac. Rep. 615]; First Nat. Bank v. Woodman, 
      93 1'owa 668 [62 N. W. Rep. 28; 57 Am. St. Rep. 287]; McLane v. Allison, 60 Kan. 441 [56 Pac. Rep. 747],
    C. F. Morgan, for defendants.
   WINCH, J.

This is an action to foreclose two mortgages upon the same premises, both given by the defendant, Caroline E. Fauble, and both now held by the administrator of the estate of John W. Morgan, deceased.

The petition has two causes of action.

The first cause of action sets up a mortgage given February 17, 1871, by Caroline E. Fauble, her husband, Michael J. Fauble, joining with her, to'William S. Jones, to secure a note for $300 of said date, due in three years, given by her husband, Michael J. Fauble, to said Jones. It recites that said Jones duly assigned said note and mortgage to said John W. Morgan on October 10, 1883, and that no payments were ever made upon said note except the first six months interest. This mortgage was duly recorded February 20, 1871, 'in volume 182, page 539, of Cuyahoga county records. It further recites that on January 30, 1893, said Caroline* E. Fauble duty executed and delivered to said John W. Morgan another mortgage of said premises to secure her note of said date for the sum of $500, payable to said Morgan five years after date, and that in this second mortgage is contained the following recital:

“This conveyance is made subject to a mortgage executed by Caroline E. Fauble and Michael J. Fauble to William S. Jones, for the sum of $300, and recorded February 20, 1871, in volume 182, page 539 of Cuyahoga county records.”

Reliance is had upon this recital in the second mortgage to remove the bar of the statute of limitations from the first mortgage.

To this first cause of action a demurrer was filed.

The second mortgage is set up in the second cause of action in which it is admitted, however, that the note secured by said mortgage has been lost and cannot be found.

The defense to this mortgage is, that said ..Caroline E. Fauble was the sister of John W. Morgan and that he forgave her her debt and destroyed said note before his death.

As to the demurrer to the first cause of. action:

Manifestly the note secured by the first mortgage is barred by the limitation of the statute, which is fifteen years. The mortgage, also, is barred by the same statute, unless the recital in the second mortgage, is an “acknowledgment” thereof, within the purview of Rev. Stat. 4992 (Lan. 8507), so as to authorize the bringing of an action to foreclose said mortgage within fifteen years from the date of said second mortgage, which was January 30,'1893.

The wording of this section of the statutes was slightly changed upon the adoption of the revision of the statutes, June 20, 1879, but, under the facts of this case, that is of no consequence.

True, the mortgage having been given when the old statute was in force, that statute would apply until the limitations therein provided had run out, which was in 1889. Horseley v. Billingsley, 19 Ohio St. 413.

But the fifteen years having expired before the acknowledgment or new promise was made, the statute then in force applies. Brooks v. Otis, 2 Dec. Re. 355 (2 W. L. M. 490).

It is claimed that the words used in the recital in the second mortgage do not amount to an acknowledgment of the former mortgage.

In the recital it is said that the second mortgage is made “subject to” the former mortgage. We are inclined to think that this clause clearly recognizes that the former mortgage is existing and that the mortgagor is willing to discharge it. Bissell v. Jaudon, 16 Ohio St. 498.

Such was the opinion of the Supreme Court of Iowa in Palmer v. Butler, 36 Iowa 576, a case very much like'.this and one that has been cited with approval by all the standard text-books on limitations and mortgages.

The contention of counsel for defendant that though an acknowledgment of the mortgage may take it out of the statute, still there can be no foreclosure of it, because the note which it secures is barred, is not maintainable.

It is claimed that the case of Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842], is authority for this contention, and general language used in the concluding paragraph of the opinion in said case would seem to warrant the claim. But the syllabus is carefully limited, and reads as follows:

“A mortgage is a specialty and an action for its foreclosure and sale of the premises comes within the provisions of section 4980 [Lan. 8495], Revised Statutes, and the period of limitation is- fifteen years, unless extended, by virtue of section 4992 [Lan. 8507], Revised Statutes. ’ ’

On page 254 of the opinion, the court also says:

“A mortgage may be made to secure an account, and an action on account may be Barred in six years, while an action on the mortgage would not be barred short of fifteen years.”

The court also says, page 253:

“The case of Fisher v. Mossman, 11 Ohio St. 42, correctly holds that the bar of the note, or other instrument secured by mortgage, does not necessarily bar an action on the mortgage.”

The latter case quoted with approval from the leading case of Belknap v. Gleason, 11 Conn. 160 [27 Am. Dec. 721], to the effect that,

“'Where a security for a debt is a lien on property, personal or real, that lien is not. impaired in consequence of the debt being barred by the statute of limitations.”

So we conclude that though the remedy on the note is gone, the right remains, the debt is not paid, and the remedy on the mortgage still exists, being extended by the acknowledgment.

Speaking generally of the defense of the statute of limitations, we quote from Bradfield v. Hale, 67 Ohio St. 316, 325 [65 N. E. Rep. 1008]:

“While such a defense is not viewed with disfavor, and is regarded as one of merit, it has not yet become a special favorite of the law so as to justify extending it beyond the letter and spirit of its enactment. ’ ’

As to the second cause of action:

The testimony on this subject was deficient in two particulars:

It is not at all certain that the note was destroyed before John W. Morgan’s death. All we know is, that it cannot now be found. After his death his papers passed through the hands of two. persons before they came to the hands of the administrator. One of these persons was an imbecile relative of the defendant and the, deceased. The note might have been lost after Mr. Morgan’s death.

Again, the testimony relied upon to prove a gift is too general. It is said that the deceased previous to his death repeatedly said that he did not want to leave any “debts” against his sister, the defendant; that she would have nothing to pay after his death, etc.

The slight presumption arising from such statements that he destroyed the note in pursuance of his promise to hold no claims against her, is rebutted by the finding of the note secured by the first mortgage. To carry out his general promises, if they amount to promises, he should have destroyed both notes.

The demurrer to the first cause of action is overruled and judgment is rendered in favof of the plaintiff on both caiises of action.

Marvin and Henry, JJ., concur.  