(dissenting). The complaint alleges a payment by the administrator within the five-year period of limitation. If the payment was not authorized by an order of the probate court, this could have been pleaded by answer, but the complaint was good on demurrer, for, from the allegation that the payment was made by the administration, it should be inferred, in testing the sufficiency of the complaint on demurrer, that the alleged payment was an authorized one.
The mortgage debt matured May 22, 1902; Glasscock, the debtor, died February 25, 1901; payment was made by the administrator November 9, 1905, and this action was commenced May 15, 1908. The action was not barred by the five-year statute of limitations.
I do not think the statute of nonclaims operates to bar- a right of foreclosure which is not barred by the general statute of limitations. We have held that, on the death of a mortgage, debtor, the statute of nonclaims displaces the general statute of limitations for the purpose of extending the period within which suits to foreclose a mortgage may be instituted. Salinger v. Black, 68 Ark. 449; Ross v. Frick Co., 73 Ark. 45; McGill v. Hughes, 84 Ark. 238. But it is an entirely different question as to whether the statute of nonclaims operates for the purpose of shortening the period within which a mortgagee is given under the general statute of limitations to foreclose his mortgage. Prior to 1889 the statute of limitations as to an action on the debt secured by a mortgage on land had no application to an action to foreclose a mortgage, and seven years’ adverse possession of the mortgaged lands was necessary to bar an action to foreclose. Ringo v. Woodruff, 43 Ark. 469. This court had also held that “die statute of nonclaims has no application to a debt secured by a deed of trust, where the creditor seeks to subject the trust property to a payment of his debt, which he may do without authentication and exhibition of his claim to the administrator of his debtor.” Pope’s Heirs v. Boyd, 22 Ark. 535.
In this state of the law, the Legislature enacted the statute of March 25, 1889, which provides that “in suits to foreclose or enforce mortgages or deeds of trust it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given.”
It is evident to my mind that the Legislature, in passing this statute, had reference to the general statutes of limitations, and not to the statute prescribing the time within which claims against the estates of deceased persons must be probated. It is by this court — and correctly, I think — held in the cases just cited that, as the statute of nonclaims keeps alive a debt not barred at the time of the death of a debtor, it also keeps alive the right of action to foreclose the mortgage, notwithstanding it would be barred by the general statute of limitations. But it should not be held that the statute of nonclaims shortens the time which a mortgage may be foreclosed under the general statutes of limitation, when it is evident that the Legislature did not in the act of 1889 have any reference to the statute of nonclaim.