J. W. H. and Martha Blackwell v. J.W. Barnett et al., 52 Tex. 326

Bonner, Associate Justice. The controlling question in this case is this: Gan a trust deed, with power of sale, be enforced after the clebt which it is given to secure is barred by the statute of limitations ? For its disposition we shall adopt that rule which seems most to accord with the harmony and consistency of the general law of limitations and the tendency of most of the former decisions of this court. The case of Sprague v.

Ireland, 36 Tex., 657, in which the affirmative of this proposition was announced, was a contest as to the superiority of right under sales by virtue of two trust deeds, given at different times upon the same property, to secure two different debts. In view of the opinion of the court as therein expressed, that the statute of limitations, to have been made available, should have been specially pleaded,—as this wTas not done, it would seem that the decision in that case might have rested upon this point.

The learned justice delivering the opinion, however, cites, seemingly with approval, Hill on Trustees, p. 341, and Gary v. May, 16 Ohio, 80, to the effect that a trust created by deed, for the payment of debts generally, will prevent the operation of the statute of limitations. In support of this, reference was made to the cases of Fisk v. Wilson, 15 Tex., 430, and Ware v. Bennett, 18 Tex., 794. However authoritative the above doctrine may be in other tribunals, we think that neither the cases of Fisk v. Wilson and Ware v.

Bennett, nor any other decisions of this court, have recognized it here, but that the tendency is to the contrary. In the case of Fisk v. Wilson it was held, that, as to the express trust upon the land, there was no such notice of the adverse possession by the trustee as would create the bar of the statute. The case of Ware v.

Bennett decides that a sale under judgment of foreclosure of mortgage given to secure a debt which had been acknowledged from time to time so as to prevent the bar of the statute, was valid as against a subsequent mortgagee whose rights accrued during the time the debt under the first mortgage was valid and subsisting by reason of the acknowledgments; that such subsequent mortgagee was bound to take notice that the prior debt may not in fact have been barred. To the same effect are Heyer v. Pruyn, 7 Paige (N. Y.) Ch. R., 465; Hughes v. Edwards, 9 Wheat., (U. S.,) 497; Angell on Lim., sec. 460. In both Sprague v.

Ireland and Ware v. Bennett, supra, the subsequent incumbrance was given when the debt secured by the first was valid and subsisting. If a sufficient time had elapsed to bar the debt secured by the first mortgage, and afterwards a second mortgage had been given to another party on the same property to secure his debt also, a serious doubt might arise whether a subsequent acknowledgment of the first debt, made after the second mortgage had been given, could affect the rights of the second mortgagee.

Whatever may be the rule elsewhere, it is now the settled doctrine of this court, that a mortgage is so completely an incident to the debt which it is given to secure, that if the debt is barred by the statute of limitations the creditor is left without-remedy upon the mortgage; and that if it was given upon land, he cannot dispossess the mortgagor by suit of trespass to try title or ejectment. (Duty v. Graham, 12 Tex., 437; Ross v. Mitchell,, 28 Tex., 150; Perkins v.

Sterne, 23 Tex., 561.) In the last-named case it is said that “the mortgage, although held to he a security for the debt, is, nevertheless, so much a conveyance of the legal estate, that it would not be affected by the statute of limitation but for the equitable doctrine which treats it as incidental to the debt.

The creditor is left without remedy upon his mortgage after his debt is barred, because the courts of equity will not permit him to treat his mortgage as anything but a security for his debt; and when there ceases to be anything to secure, there must, of necessity, cease also to be any security.” (23 Tex., 563.) It is also now so well settled by this court, that we cannot, without overruling a line of decisions so long established that it has become a rule of property, hold otherwise than that a deed of trust is in effect but a mere mortgage with power of sale. (McLane v.

Paschal, 47 Tex., 369.) The power of sale given to a trustee or mortgagee affects the remedy only, and is intended to give to the creditor a speedy mode of fdreclosure, without the delay and expense of a suit. (1 Hill, on Mort., p. 90.) In ordinary deeds of trust and mortgages, this remedy is but cumulative, and, if preferred, resort may be had to judicial proceedings. (Morrison v.

Bean, 15 Tex., 269.) In a case like the one now before the court, where the property consists of the homestead, which is exempt from forced sale, an ordinary mortgage would not be effectual, as it must be foreclosed by sale made under judgment of a court, and ■which, being a forced sale, would be invalid. Sales of such property are, however, held to be valid when made under a power. for this purpose contained in a deed of trust or mortgage. (Sampson v.

Williamson, 6 Tex., 103.) It may well be doubted whether this distinction is not practically more theoretical than substantial, and whether sales of the homestead under a power in a trust deed or mortgage is not an indirect mode of accomplishing that which was intended to be forbidden by the several Constitutions of this State, and which is expressly and definitely forbidden by the present Constitution. (Const. of 1876, art. 16, sec. 50.) Such contracts do not demand from the courts a more favorable and liberal construction than those which are sought to be enforced through the safeguards provided by law for the administration of justice.

If an ordinary suit to foreclose a mortgage could not be maintained after the debt has become barred by limitation, when this defense, as in this case, has been interposed, we cannot perceive why, in analogy to our former decisions, the bar of the statute would not be as effectual when the foreclosure was sought under a power of sale given in a trust deed or mortgage. The end sought is the same, the remedy only being different. The principles and policy which underlie the one would underlie the other.

By adopting as the rule of limitation in such cases the time which would bar the right to foreclose by judicial process, ample opportunity is given within which to pursue the remedy made by the parties themselves. It would seem that if any difference should exist, no greater indulgence should be extended to one who has the remedy in his own hands and fails to use it. If he does not avail himself of it within the proper time, then, as said by Chief Justice Hemphill in Duty v.

Graham, he “cannot justly ascribe his loss to any other cause than Ms own laches, nor can he require the courts to introduce new and unusual remedies.” (12 Tex., 437.) If, from any cause, it should become necessary to keep the debt alive until the sale could be had, this could be accomplished by suit and judgment thereon in a court of competent jurisdiction. (Herm. on Chat. Mort., sec. 207.) Or if, as in the case of Williams v.

Pouns, 48 Tex., 141, the trustee was proceeding to give the notice of sale in ample time to have perfected the same before the debt became barred, and he had been prevented by injunction, then this would have stopped the running of the statute during the time the injunction suit was pending. [Opinion delivered December 19, 1879.] In the present case, however, the notice was not posted a sufficient time to have made the sale before the note would have been barred under the statute, and the injunction was not sued out until after the bar was complete.

Our statute provides, in effect, that limitation will be suspended on all debts grounded upon any contract in writing by the commencement of an “action or suit” within four years next after the same could have been instituted. (Paschal’s Dig., art. 4604.) To decide that the mere posting notices of a trust sale before a debt secured thereby is barred by limitation, but not in time to make the sale before the bar would be complete, should be held equivalent to the institution of an “ action or • suit,” would, we think, be the exercise of a power to create an exception to the running of the statute which belongs to the legislative, and not the judicial, department of the government.

We are of opinion that there was error in the judgment of the court dissolving the injunction and dismissing the plaintiff’s suit, under the facts as shown by the record; for w'hich error the judgment should be reversed and the cause remanded.. Beversed and remanded.