
    Doyle v. West.
    
      Mortgage foreclosure — Sale of property and balance still due mortgagee — Action can be maintainedfor balance, evidenced by record —Statute of limitations.
    
    1. In a suit to foreclose a mortgage, there was a finding of the amount due and the usual order of sale, if not paid in a certain time named. There was no prayer for a judgment, and none was rendered, and no order for an execution for any balance that might remain after applying the proceeds. A sale was made and after applying the proceeds, a balance of $102.21 remained. Held, that an action can be maintained on the finding for the recovery of this balance as a debt, evidenced by record.
    2. The statute of limitations was raised by demurrer; and it appearing from the petition that more than seventeen years had elapsed from the application of the proceeds, and no inter, mediate payments having been made. Held, that under our statute of limitations, the action is barred.
    3. Whether the limitation is fifteen, or ten, years, is not necessary to determine in this action; and is left undecided. .
    (Decided June 13, 1899.)
    Error to the Circuit Court of Lucas county.
    
      Boyle & Lewis, for plaintiff in error.
    The petition in this case in the court below was filed April 20, 1895, and is an action brought to recover the balance claimed to be due upon what the plaintiff below claims to be a judgment rendered in his favor by the court of common pleas of Ottawa county at its October term, 1876.
    A demurrer was filed to the petition upon two grounds:
    
      Fwst — A general demurrer.
    
      Second --That more than fifteen years has elapsed since the accruing of any cause of action described in the petition.
    
      As noted above, a copy of the complete record of the Ottawa suit, which is made the basis of the right of action in the case at bar, is attached to the petition and made a part thereof, and for the purposes of the demurrer is a parf of the pleadings, and is an admission by the plaintiff below of all of the recitals in the record. Byers v. Insurance Co., 35 Ohio St., 606.
    As will be noted, the petition does not ask for a personal judgment, and if one had been rendered, it would have been invalid under the decisions of this court, as “a personal judgment, cannot be rendered in an action to foreclose a mortgage,unless there is a prayer for such personal judgment.” Giddings v. Barney, 31 Ohio St., 80; Moore v. Ogden, 35 Ohio St., 430; Rankin v. Hannan, 37 Ohio St., 113.
    But not only was no personal judgment asked for, but no personal judgment was in fact rendered.
    Our contention in this case is:
    
      First -That the Ottawa county decree, as shown by the record, has been fully complied with, and it cannot be made the basis of a right of. action.
    
      Second — That even if any action could be based upon that decree, under any claim that it represents a debt of record, it is barred by either one of two sections of the Statutes of Limitations.
    The action in Ottawa case was solely an action brought to foreclose a mortgage. Myers et al. v. Hewitt et al., 16 Ohio, 449.
    No such judgment was taken as authorized on execution as was described by this court in Hamilton v. Jefferson, 13 Ohio, 428.
    It is apparent that the plaintiff did not act under this authority, but relied solely upon the foreclosure of his mortgage, and therefore the decree was not so framed as to make the balance a debt of record.
    The record shows that all that was ordered by the court to be done has been done. The money was not paid, and in accordance with the order of court, the property mortgaged was brought to sale, and the proceeds applied as directed by the court. No further orders of any kind were made by that court' in the case, and no attempt was made to secure a deficiency judgment; upon the sale of the mortgaged property, the power of the court, in that case, was entirely exhausted. The notes sued upon in that action were still held by the plaintiff subject to a credit, in the amount of the proceeds of the sale paid to the plaintiff in that action, and for the balance due on the notes as such, the plaintiff below undoubtedly had a right of action based on the notes, subject to the endorsement of payment of the amount realized from the sale of the mortgaged premises. Durbin v. Fisk, 16 Ohio St., 533; Spence v. Insurance Co., 40 Ohio St., 518; Globe Insurance Co. v. Lansing, 5 Cow., 380; Lansing v. Goelet, 9 Cow., 346; Stevens v. Dufour, 1 Blackf., 387; Porter v. Pillsbury, 36 Me., 278; Tooks v. Hartley, Bro. C. B., 125.
    So likewise in case of strict foreclosure. Hatch v. White, 2 Galliston, 152; Amory v. Fairbanks, 3 Mass., 562; Dunkleyv. Van Buren, 3 Johns Ch., 330.
    A foreclosure in equity, it is said, though' not a proceeding in rem, is in the nature of such a proceeding, and is not intended ordinarily to act in personam. 2 Jones on Mortgages, pars., 1709-1711; Wiltsie on Mortgage Foreclosure, pars., 85-86; Smith v. Moore, 53 Mo. Appeal Reports, 525. That the decree rendered by the Ottawa county court is not a personal judgment and is not a decree for the payment of money only, is apparent from the decree itself. If, in any sense, that decree can be said to be a debt of record, it seems to be included under the term “Specialty” as defined in Revised Statutes, section 4980, and would be barred in fifteen years.
    If it is not a judgment, no action at law can be based upon it, but if it has any force as a debt of record because there is a finding of the amount due as distinct from a judgment, then it is as much a specialty, certainly, as a foreign judgment which is a specialty, although it certainly is a debt of record. Stockwell v. Coleman, 10 Ohio St., 33.
    On the other hand, if it is not a “Specialty,” and that, indeed, is the highest title that can be given to it, then such a right of action is not specifically designated in the Statute of Limitations, and it must be included within the provisions of section 4985.
    
      Waite <& Snider, for defendant in error.
    The questions presented by the record in this case are those which arose in the common pleas court on the demurrer to the petition, andaré—
    
      First — Could the suit be maintained on the decree set out in the petition; and
    
      Second — W as the action barred by the statute of limitation.
    I. As to the first question: We insist it is now settled by the Supreme Court of Ohio that, in proceedings to foreclose a mortgage on real estate in which the court renders a decree finding the amount due on the mortgage debt and ordering the debtor to pay the same within a time limited, and, in default of such payment, that the mortgaged property be sold by the proper officer of the court and the proceeds, applied by him towards the satisfaction of the amount .found due, an action at law can be maintained on such decree for any balance remaining unpaid after the mortgage security has been exhausted. Moore v. Adie's Adm'r, 18 Ohio, 430; Moore v. Ogden, 35 Ohio St., 430; Moore v. Starks, 1 Ohio St., 369; Maholm v. Marshall, 29 Ohio St., 611; Pennington v. Gibson, 16 How., 65; Post v. Neafie, 3 Caines, 22; Warren, v. McCarthy, 25 Ills., 95; Mutual Fire Ins. Co. v. Newton, 50 N. J. Law, 571; Thrall v. Waller, 13 Vt., 231.
    II. If, then, this suit on the decree is a proper proceeding for the collection of the balance due on the mortgage indebtedness, such action is not barred by the statute of limitations. Tyler's Exrs. v. Winslow, 15 Ohio St., 364; Fries v. Mack, 33 Ohio St., 52.
   Minshall, J.,

In .an action commenced in the court of common pleas of Ottawa county by Chai-les West against John H. Doyle, March 28, 1876, to foreclose a mortgage on certain-land, made by Doyle to one Cyrus Coy, and by him assigned to West, the court found the amount due to be $182.54, and-made the usual order of sale. There was no prayer for a judgment, and none was rendered,-nor was there an order that execution issue for any balance. The land was sold, and after payment of the costs, the remainder of the proceeds, $89.40, was, on May 15, 1877, applied to the plaintiff’s claim, leaving a balance of $102.21, remaining unpaid. This not being paid, on April 20, 1895, over seventeen years after the $89.40 was applied, West commenced the action below in the common pleas court of Lucas county against Doyle to recover the balance with interest from May 15, 1877. These facts were contained in and appeared from the petition of the plaintiff. Doyle demurred on the ground that the petition did not state facts sufficient to entitle the plaintiff to relief; and, also, on the ground that the right of action, if any, is barred by the statute of limitations, over fifteen years having elapsed from the time it could have been brought.

The demurrer was sustained by the common pleas and the petition dismissed, the plaintiff not desiring to amend. The judgment of the common pleas was reversed on error by the circuit court. Hence this proceeding in error by Doyle.

We are inclined to think, that, the statute of limitations aside, there is not much'doubt but that the petition states a cause of action. The finding of the amount due is a necessary predicate to an order of sale in a foreclosure proceeding, and the finding is a judicial determination of the amount. The defendant can take issue as to the amount claimed. Where issue is taken, it must be, and is heard as a question of fact; if no issue is taken, the finding is made as on confession. The policy of the law is against the relitigation of questions of law or fact, once heard,and determined between the same parties. A question of fact once so determined is binding on the same parties in all subsequent litigation. It would be somewhat anomalous if, after the amount due on a note secured by mortgage, had been, on issue taken, heard and determined in a foreclosure suit, afterwards a suit might be brought on the notes, and the whole question again litigated. We regard the finding of the amount due in a foreclosure proceeding as a judicial determination of the question; and where it, or any balanee, after applying the proceeds of sale, remains due and unpaid, a suit may be brought on the finding to recover the amount. We find nothing in the decisions of this state that conflicts with this holding-. It is not, as we shall see, a judgment with any of its incidents, but is a debt evidenced by record, and can only be discharged by payment. It does not become dormant in the sense that a judgment does (Moore v. Ogden, 35 Ohio St., 430) for it is at no time active in the sense that an execution can be issued upon it, unless so ordered; and it does not become a lien upon the other lands of the debtor. These are the incidents of a judgment and distinguish it from a simple finding of the amount due ón a mortgage. This leaves for consideration the question, whether the suit is barred by lapse of time.

2. It would seem that, under the provisions of our code of civil procedure, it was the intention of the legislature to prescribe a limitation for the commencement of all actions in this state. It would also seem that, in the nature of things, and a sound public policy, interested in. the repose of society, this should be so. . No reason is perceived why there should have been a purpose of this kind in one class of actions and not in another. The difficulty of preserving evidence, the frailty of the memory, and the contingency of the death, of witnesses, are the same in one ease as in another. Again, the statute itself makes no exceptions. The first provision is section 4976, Revised Statutes. It provides that ‘ ‘civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues; but where a different limitation is prescribed by statute it shall govern.” Causes of action are then divided into certain classes, and a specific limitation prescribed for each, class; and then is added a general provision, to the effect, that all other actions for relief shall be brought in ten years — section 4985, Revised Statutes. This would seem entirely conclusive of the question, and would be so, but for the decision of this court in Tyler's Exrs. v. Winslow, 15 Ohio St., 364, where it is said that “judgments and debts of record are not specified as causes of action to be limited; ” and it was there held, that an action on a domestic judgment is not limited by any statute, and a recovery can only be defeated by such a lapse of time, or other circumstances, as will raise a presumption of payment, the time there adopted being twenty-one years. There is no disposition to overrule this case; but if persuaded that it was not rightly decided, there is the more reason for confining its application to cases identical with it in facts. The suit was, as we have said, on a domestic judgment, and not a mere finding of an amount due, as in this case, and arose under the statute of 1831, which limited the commencement of all actions, other than those specially provided for, to four years. This seemed to have exercised a controlling influence upon the mind of the court, as it is observed in the opinion, that a judgment could not have been included therein, as it might be revived in five years and execution issued thereon. And it cannot be doubted that there is much force in this observation. But it is without application to our present statute, where the limitation for actions, not otherwise provided for, is ten years; and it would seem that this is quite long enough, regard being had to the repose of society on the one hand, and the convenience of creditors on the other. The reasoning, however, of the court, that the rendition of a judgment does not seem, in the ordinary sense, the accrual of a cause of action, is less satisfactory. It is true that an action on a judgment accrues somewhat differently from most actions. Actions generally accrue from a violation of a primary or sanctioned right; but in the case of a judgment the right of action on it accrues on the termination or extinction of a secondary or sanctioning right. This peculiarity suggested itself to the analytical mind of John Austin, who pointed out that a judgment generates a right of action at the moment it. terminates such a right, and called for some modification of his terminology. 2 Austin Juris., 460. A judgment ascertains and determines thata party is entitled to a definite sum of money from another. It at once becomes a debt in the strictest sense of the term; and if it is not paid, might, at common law, have been recovered in an action of debt (Headley v. Roby, 6 Ohio, 521), or in our state, may be, by the civil action of the code. This is not disputed in the case of Tyler’s Executors; but, is it not a contradiction in terms to say, that an action can be brought and a recovery had, where no cause of action has accrued ? Yet it is apparently upon this absurd distinction that the action in that case, being on a judgment, was taken out of the statute of limitations, so far as the reasoning proceeded on this last ground. Placed on the first ground — the construction of the act of 1831— it is not unreasonable; but that ground, as we have shown, is without application to an action on a judgment under our present statute of limitations. It may, however, be argued from the provision of section 5368, which is that an action to revive a judgement can only be brought in twenty-one years from the time it became dormant, that a suit on it may be brought in a like period from its rendition. But whether this is so or not, it seems evident that that case cannot control this one — it is not on a judgment, but on a simple finding of an amount due, not put into judgment, and has none of the incidents of a judgment; and the commencement of a suit upon it as a cause of action, seems upon reason, to require a limitation as much as any other action for the recovery of money; and therefore within our statute of limitations.

In this case it is not necessary to decide whether it is fifteen years, the time fixed for a suit on a specialty or a contract in Writing; or ten years, the time fixed for the commencement of all actions for relief not otherwise provided for, as over seventeen years have elapsed since the cause of action accrued. There is much authority'for saying that it is an action on a specialty. Stockwell v. Coleman, 10 Ohio St., 33-36 ; Fries v. Mack, 33 Ohio St., 52. Though it certainly is not literally accurate to call a foreign judgment, or a finding of an amount due, a specialty, the usual definition of a specialty being, an instrument under seal. But from the cases cited, and some English cases, there seems to have been a disposition to use the term in a transferred sense, and as including any debt evidenced in a solemn form. In the case of a sealed instrument, its character is in fact referable to the solemnity of affixing the seal, rather than to the seal itself; and there can be no more solemn act in law, than that of a court or jury finding, on issue joined, that the defendant is, or-is not, indebted to the plaintiff; and on this ground it has been held that a foreign judgment, even of a justice of the peace, is a specialty. Walker says: “Specialties include contracts under seal, and obligations of record;” and adds, “it is then the seal or record which constitutes a specialty.” Am. Law, 9th ed., 492.

Judgment reversed and that of the common pleas affirmed.  