
    STATUTE OF LIMITATIONS — MORTGAGE.
    [Circuit Court of Monroe County.]
    Thomas Baird v. Isaac W. Ramsey et al.
    Decided, November Term, 1903.
    
      Title — Protected hy Statute of Limitation — Against a Mortgage — Securing a Note More Than Twenty-one Years Due — Partial Payment Made Sixteen Years Before Action Was Brought.
    
    In an action to quiet title to real estate against a mortgage upon the same, given to secure a promissory note which matured more than twenty-one years before the beginning of the action, and upon which note a partial payment had been made and endorsed thereon more than sixteen years previous to the commencement of the action. Held: The plaintiff was entitled to a decree quieting his title against such mortgage.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Appeal from common pleas court.
   August 30, 1901, plaintiff filed a petition in the common pleas court to quiet his title to certain real estate which he claimed to own and be in the possession of, situated in this county. He set forth in his petition that the defendants claimed to hold a certain mortgage upon such real estate which was of record in the recorder’s office of the county uncanceled; that the same was invalid, and was a cloud upon his title.

The defendants answered, setting up that on the 27th day of December, 1877, the plaintiff, his wife joining with him, duly executed and delivered to one Aaron F. Ramsey the mortgage referred to in the petition of plaintiff to secure a promissory note given by plaintiff for the sum of $2,216.13, payable December 24, 1878; that on July 29, 1884, the plaintiff made a payment upon said promissory note of $103.87, which was indorsed by said Aaron F. Ramsey upon said note of that date in the presence of plaintiff and at his request; that on the 17th of January, 1889, Aaron F. Ramsey duly assigned and transferred the note and mortgage for value to Isaac Aaron Ramsey, Aaron Nolan and Aaron Ramsey Sharron, his grand-children, who, with their guardian, are the parties defendant to this action; and that by reason thereof they not only have a valid interest in the property, but are legally entitled to the possession thereof.

To this answer the plaintiff makes reply, denying that said payment was made; also denying the transfer of the note and mortgage, and further insisting that if such payment and transfer were made, yet the mortgage was invalid and has no legal force and effect, as from the averments of the answer it is barred by the statute of limitations.

We find as a fact from the evidence that the payment and transfer were made as averred in the answer, and that brings us directly to the question as to whether or not the claim of defendants in or to the property under the mortgage is barred by the statute of limitations.

It will be observed that the payment was made more than fifteen years, but less than twenty-one, previous to bringing this action by plaintiff to quiet title; and further that the note to secure which the mortgage was given matured more than twenty-one years before the bringing of the action. It is conceded, as it must be, that suit could not have been successfully maintained by defendants to foreclose the mortgage, as more than fifteen years had elapsed from the maturity of the note and also from the making of the payment. Kerr et al v. Lydecker, Adm’r, 51 O. S., 240.

It is insisted, however, that as less than twenty-one years had elapsed from the making of the payment the defendants could maintain an action of ejectment, and therefore their answer is a valid defense.

That the mortgagee or his assignee might maintain an action of ejectment against the mortgagor after condition broken there is no question.

In the ease referred to, Kerr et al v. Lydecker, Adm’r, supra, on page 250 in the opinion it is said:

“After condition broken, the title is vested in the mortgagee, as between him and the mortgagor, and as the right of the mortgagee to recover the possession of the land by ejectment always existed at common law, and has not been taken away by statute, it still exists in this state.” Heighway v. Pendleton, 15 Ohio, 735; Allen v. Everly, 24 O. S., 97; Hibbs v. Insurance Company, 40 O. S., 543-559; Rife v. Lybarger, 49 O. S., 427.

On page 251 it is said:

“A strict foreclosure was therefore in no sense a recovery of either title or possession, because he had the title vested in him, and the strict foreclosure did not give him possession.
The same is true of a foreclosure and sale under the code. The right to redeem is cut off by the foreclosure, but no title is thereby recovered by the mortgagee, because the title, as between him and the mortgagor, is already in the mortgagee.”

In Heighway v. Pendleton, 15 O., 736, the leading case referred to is Kerr et al v. Lydecker, Adm’r, supra; it is decided:

“When the condition of the mortgage is broken as between the parties, the title to the mortgaged premises vests in the mortgagee and remains in him until satisfaction.”

From these authorities it would seem that the law is conclusively settled in this state, that after condition broken, in this case from the maturity of the note, the title to the mortgaged premises as between the parties is vested in the mortgagee, and that at that time and any time afterwards, the mortgagee might bring ejectment against the mortgagor to recover the premises.

It follows therefore, necessarily, that the title to the premises having vested absolutely in the mortgagee on the 24th of December, 1878, that action must have been commenced within twenty-one years from that date to recover the possession of the mortgaged premises or he could not do so against the objection of the mortgagee, unless the payment made July 29, 1884, took the ease out of the statute. Bradfield et al v. Hale et al, 67 O. S., 316.

We do not think the payment could in any way effect the title. It might renew the note, so that foreclosure proceedings in equity might be prosecuted, for the period of fifteen years. On that question we express no opinion, but more than fifteen years had elapsed from the payment to the commencement of the action.

Moore & Jeffries, for plaintiff.

Spriggs & Son, for defendant.

How could, the partial payment affect the title ? Section 4992 provides:

“When any payment has been made upon any demand founded on contract * * * an action may be brought thereon within the time herein limited after such payment.”

The mortgage was in no sense a contract for the payment of money. It was not a demand founded on contract, but a security for the payment of the note; a deed with a defeasance which became absolute upon the non-payment of the note. The title to the property vested immediately upon failure to pay the note, and the mortgagor could only regain the title by its full satisfaction. If by partial payment the title again becomes vested in the mortgagor how long does it so continue; after payment does it go back again to the mortgagee; if so, upon every payment the title changes twice, which leads to an absurdity. We do not think that Section 4992 has any relation to the vesting or divesting of the legal title to the premises described in the mortgage.

No question has been made as to the effect of the transfer of.the note and mortgage to the defendant, and we can not see that it has any effect upon the title of the premises whatever; they have the same legal rights as the original mortgagee, and are affected with the same legal liabilities.

The plaintiff is entitled to have his title quieted in the premises. Decree accordingly.  