The first proposition urged by defendants in error in support of their motion for a rehearing is, that the granting of the injunction to restrain the sale under the trust deed had the effect of suspending the statute of limitations on the notes themselves.
We are of opinion that our decision of this question, adversely to defendants in error, is in accordance with reason and authority.
The second proposition urged is, that the fact that plaintiffs in error sought to have the payments claimed by them credited on the notes before sale, thereby seeking an accounting from defendant in error, authorized the court below to render judgment on the notes against them for whatever balance might be found unpaid, and for foreclosure of the lien therefor, without any pleading by the executors asking such relief, and that therefore limitation ceased to run against the notes in the hands of the executors upon the filing of such petition.
In order to sustain this contention it must be held, that the filing of the petition for injunction was the "commencement" of an "action" or "suit" on the notes, within the meaning of the statute of limitations.
In support of their contention, defendants in error cite authorities to the effect, that in bills in equity for an account, if a balance is ultimately found in favor of the defendant, when the case is before the court upon its merits, he is entitled to a decree for such balance on his answer, without having filed a cross-bill. These authorities discuss the respective functions of an answer and a cross-bill in chancery proceedings, and would be in point were we called upon to determine whether, under the rules governing such proceedings, the executors of Pierce, in order to obtain the relief sought, would be compelled to resort to an answer or cross-bill; but they have no application to the question of limitation presented by the facts of this case. *Page 533
Plaintiffs in error, in their petition, sought to enjoin the trustee from selling, on two grounds; (1) that the property was their homestead, and therefore not subject to the lien of the trust deed; and (2) if that was not true, then Davis claimed that he had made numerous payments on the notes, which if credited thereon would greatly reduce if not discharge same, and asked that an accounting be had and he be allowed his credits on the notes, so as to ascertain the true balance thereon before sale under the trust deed.
Such questions were within themselves proper subjects for judicial determination in a suit begun at any time while the power of the trustee to sell existed, without reference to the question whether the notes were barred at the time of the institution of such suit.
Plaintiffs in error had the right to present only these questions for decision, and if the executors had answered only by general denial, or after due service had failed to answer, a decree determining such questions would have disposed of all the issues presented by the pleadings. If such decree had found that the homestead was not subject to the trust deed, or that the notes had been discharged, the injunction would have been perpetuated; but if it had found the homestead subject to the trust deed, and that there was a balance due on the notes, the trustee would have been left at liberty to sell under the trust deed for such balance.
The executors had the right to elect whether they would pursue that course or bring into the case a new issue by asking a personal judgment against Davis and a foreclosure of the lien and sale of the property by the sheriff under an order of court; but until they did so, the pleadings would not justify the rendition of a personal judgment and foreclosure of the lien in their favor.
If the trustee had not attempted to sell until after the notes were barred, and the plaintiffs in error had then filed the petition filed herein, the right of election above indicated would have been all important; for if they had elected to seek a personal judgment on the notes and foreclosure through the process of the court and been defeated by the plea of limitation, it might have imperiled their right to have a sale under the trust deed.
Again, the executors were in no sense parties to the record, and the court acquired no jurisdiction over them until they appeared and made themselves parties by filing what they termed their "original answer," long after the notes were barred. It can not with any show of reason be contended, that prior to the filing of this answer the court could have rendered any judgment against Davis on the notes or for foreclosure of the lien, for there was no party to the record entitled to such a decree.
The statute provides, that "there shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court for debt where the indebtedness is evidenced by or founded upon any contract in writing." *Page 534
From what has been said above, we think it is clear that neither the condition of the pleadings nor the parties to the record were such that it can be said that any "action or suit" was "commenced and prosecuted for the debt evidenced by these notes until the executors filed their original answer, more than four years after the cause of action accrued thereon.
The motion for a rehearing will be overruled.
Motion overruled.
Delivered October 28, 1895.