#### Wells, Respondent, vs. Scanlan and others, Appellants.

*January 31*

February *21, 1905.*

*Mortgages: Feed and defeasance: Limitations: Where cause of action accrues. ■*

1. A deed given as security for a loan, and a written defeasance by which the lender agreed to reconvdy upon payment of the debt, together constituted a mortgage.

*2302. The statute (subd. 2, sec. 4221, Stats. 1898) limiting to ten years “an action upon a sealed instrument when the cause of action accrued without this state,” does not apply to an action to foreclose a mortgage of land situated in this state, although both parties reside in another state. Such an action, being merely a proceeding against land in this state, is local and not maintainable in the courts of any other state, and hence the cause of action accrues in this state and nowhere else.

Appeal from a judgment of tbe circuit court for Dodge county: James J. Dice, Circuit Judge.

*Affirmed.*

On March 10, 1891, *Agnes M.*Scanlan, in consideration of a loan of $1,500 either to herself or to her husband, executed her note for that amount, payable 'at Chicago', Illinois, three months after date, and, as security, deeded to the lender, Andrew S. Work, lands in Dodge county, Wisconsin, and received from Work a written defeasance, agreeing to reconvey upon payment' of the debt. Work transferred the note to one J. IT. Wheeler, who had negotiated the loan. He recovered judgment thereon against *Agnes M. Scanlan*in Chicago on October 19, 1891. In November, 1891, one Heden-berg paid the amount of that judgment in purchase thereof, as1 now claimed, but received no formal assignment of it until June 22, 1898, when Wheeler executed and delivered such assignment. On the Yth of July, 1900, Wheeler made another formal assignment of the judgment to the plaintiff, *Wells,*and on the same day Hedenberg also made an assignment of it to her, and Work made a quitclaim to her of the Dodge county lands. This action was brought on substantially the foregoing facts, with a prayer of strict foreclosure of the interest of *Agnes M. Scanlan*and other defendants claiming some rights under her, but praying also general and equitable relief.

The defense interposed was that the money was borrowed by *Mrs. Scanlan*for the benefit of Hedenberg, who agreed with her to pay the debt; hence that his payment of the judgment to Wheeler canceled the debt, as also the mortgage *231interest Reid under her deed. The answer also set np expiration of ten. years, and bar by limitation, under see. 4221, Stats. 1898. *Agnes M. Scanlan*died before the trial, and there was no evidence offered of the alleged primary indebtedness of Uedenberg.

The court held that the transaction constituted a mortgage; that Hedenberg’s action amounted to a purchase of the debt, and not a payment; and that the statute of limitations was not a bar to the action — whereupon it rendered judgment for foreclosure and sale, in the usual statutory form, without any direction for a personal judgment for deficiency. Erom this judgment the defendants appeal.

The cause was submitted for the appellants on the brief of *George W. Sloan*and *K. G. Lewis,*and for the respondent on that of *John 0. Mealy,*attorney, and *W. M. Keeley,*of counsel.

Dodge, J.

Roth parties agree that the writings between *Mrs. Scanlan*and Work constituted a mortgage, the concession being fully justified by the authorities in this state. *Brinkman v. Jones,*44 Wis. 498, 514; *Cumps v. Kiyo,*104 Wis. 656, 659, 80 N. W. 937; *Beebe v. Wis. M. L. Co.*117 Wis. 328, 332, 93 N. W. 1103.

The defense of payment resulting from Hedenberg’s alleged primary liability as between him and Scanlan is, owing, perhaps, to the death of *Mrs. Scanlan,*wholly unsupported by evidence; and the finding that the transaction between Hed-enberg and Wheeler was that of purchase of the judgment is supported both by the documentary and oral evidence. There is full proof of the transfer of the debt evidenced by the judgment, and also the formal title to or lien upon the land, to plaintiff.

The only remaining defense is subd. 2, sec. 4221, Stats. 1898, limiting to ten years “an action upon a sealed instrument when the cause of action accrued without this state.” *232Appellant argues that this action accrued in tbe state of Illinois, because both plaintiff and defendant there resided. That position he supports by certain authorities, some of which do in fact contain the declaration that a cause of action arises in the state where the debtor resides, and nowhere else; but those decisions áre all with reference to personal liabilities, to actions on “which the presence of the debtor is essential. A suit to foreclose a mortgage or enforce other lien upon land is distinct from the action at law to recover the debt. *Duecker v.*Goeres, 104 Wis. 29, 37, 80 N. W. 91. The rendition of a personal judgment against the debtor may or may not be joined with the suit to enforce the lien by virtue of our statute, and perhaps by virtue of the general power of a court of equity to render complete justice between the parties, but it is a wholly nonessential part of the suit. Thus it has been definitely settled in Wisconsin that even the complete destruction of the debt by statute of limitation has no effect upon the right to maintain an equitable suit to enforce the mortgage. *Wiswell v.*Baxter, 20 Wis. 680; *Whipple v.*Names, 21 Wis. 327; *Duecker v.*Goeres, *supra.*Hence there can be no doubt that this action is what it purports on its face to be — a mere proceeding against the real estate in Wisconsin. Such an action, of course, is local, and could not be maintained in the courts of any other state. They would have no jurisdiction of the subject matter, for, the proceeding being substantially *in*reto, the *res*would not be within their reach. No adjudication they could make could act upon it. *Ellenwood v. Marietta C. Co.*158 U. S. 105, 15 Sup. Ct. 771; *Swift v.*James, 50 Wis. 540, 7 N. W. 656; Story, Confl. Laws, secs. 539, 551.

It is surely absurd to assert that a cause of action accrues in a state where there is no court which can take jurisdiction of its subject matter. . The very reasoning of the cases cited by appellant, insisting upon the accrual of the action at the place of defendant’s residence, base such insistence upon the *233necessity of bis presence in order to give tbe court jurisdiction. *Luce v. Clarke,*49 Minn. 356, 51 N. W. 1162; *Humphrey v. Cole,*14 Ill. App. 56, 62; *Hyman v. McVeigh,*10 Chi. Leg. News, 157; *O’Donnell v. Lewis,*104 Ill. App. 198, 201. Thus in tbe Illinois cases it is said a cause of action bas arisen in another state “when jurisdiction existed in tbe courts of another state to adjudicate between tbe parties upon tbe particular cause of action.” Tbe Minnesota court declares that tbe cause of action on a personal debt arises only where and when there concur “the existence of facts constituting a cause of action suable in the courts of that state, and tbe presence in it of tbe defendant.” Then only is there “the opportunity to commence an action in that state.” Wherever courts have bad before them tbe subject of an action *in rem,*or directly affecting real estate, they have held that tbe cause of action bas no existence except within tbe jurisdiction where tbe land is. *Anderson v. Baxter,*4 Oreg. 105, 111; *Bradley v. Cole,*67 Iowa, 650, 25 N. W. 849. We cannot doubt tbe correctness of this view, nor hesitate over tbe conclusion that tbe cause of action now presented accrued in tbe state of Wisconsin, and nowhere else. Eor that action tbe presence of the land was necessary to tbe jurisdiction'of any court over tbe subject matter, while tbe presence of tbe defendant was in no wise essential, for tbe court could act upon tbe *res,*wherever tbe defendant might be, by means of substituted service of process. Stats. 1898, sec. 2639, subd. 4; *Moyer v. Koontz,*103 Wis. 22, 79 N. W. 50; *Pennoyer v. Neff,*95 U. S. 714; *Arndt v. Griggs,*134 U. S. 316, 10 Sup. Ct. 557.

This conclusion is, of course, fatal to tbe contention that the cause of action accrued outside of this state, and precludes application of tbe statute pleaded. It results that no defense was established, and the judgment of foreclosure and sale was proper.

*By the Court.-*— Judgment affirmed.