Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-04-28
SUPREME COURT MAKES
An IMPORTANT DECISION
REGARDING THE RUNNING OF
STATUTES OF LIMITATIONS IN
CERTAIN CASES.
COLONIAL AND UNITED STATES
MORTGAGE co. vs.. NORTH
WEST THREsHER co.

| The supreme court has handed
down one of the most important opin.
ions ever rendered by the court in the
case of the Colonial AMI United States
Mortgage company, respondent vs.. the
Northwest Thresher company, appel
liant. The matter decided is as to the
running of the statute limitations.
The action was brought to foreclose
a mortgage upon one hundred and
sixty acres Of land situated in Dickey
county. The mortgage was executed
on May 18th, 1888, and recorded on
June 18th, 1883. It was given by
Fred West, who was then the owner
of the land, to secure his note for 1895
of even date. The note became due
November 1, 1888. No payments have
been made upon it. In the fall Ct
1887 West moved from the Territory
OF Dakota, and has since been absent
from this jurisdiction. In December,
1887 and after leaving the territory,
he conveyed the land to E. S. Br own,
| receiver of the Northwestern Manu-
featuring and Car Company, Mime
sofa corporation. On February /,
1888, Brown conveyed to the Mime
sofa Thresher Company, also Minre.
sofa corporation. Both deeds express
ly except the plaintiffs mortgage from
the covenants of warranty. On Aug.
| Z, 1901, the last named grantee con.
veyed to R. H. Bronson, who had been
appointed receiver for said corpora
ton, and on August 9, 1901, the latter
conveyed to the Northwest Thrasler
Company, a Minnesota corporation,
the defendant in the present action,
When the action was brought the
defense set up was the statute of limi-
tations. Judgment was rendered in
the lower court for the plaintiff and
respondent. The supreme court re.
verses the lower cour. and orders
judgment entered in favor of the ap-
pellant and against the respondent.
Judge Young dissents from Judges
Engerud and Morgan, and the dissent
ing opinion covers twenty pages. The
syllabus of the opinion of the ma
jority of the court is as follows:
l. Action to foreclose a mortgage
on real property is not a proceeding
in rem but is an action in personam;
and comes within the operation of
section 5210, Revised Codes, which
excerpts from the period limited for
commencing an action the time during
which the person against whom the
cause of action has accrued is absent
from the state.
2. A foreign corporation which has
complied with the laws of this state
governing such corporations and
which has been regularly and con-
tinuously doing business in this state
during the entire period required to
bar an action and during all that
| time has had an agent resident here
upon, whom process could be served,
can avail itself of the statute of limi-
tatiOns of this state.
3. The absence of the MORTGAGE
/ from the state after he has parted
with the title to the mortgaged prop
erty does not prevent the statute of
limitations from running in favor of
his grantee.
4. An action to foreclose a mort.
gage on real property is a remedy
distinct from the remedies by which
the creditor may enforce the personal
obligation for the debt secured by the
mortgage; and may become barred by
the statute of limitations even though
the debt is not outlawed.
| 5. Although the property passed to
the defendants grantor subject to the
mortgage and was in equity the
primary fund for the payment of the
mortgage debt, that doctrine can moi
be extended so as to prevent the de
PENDANT from availing himself of the
statute of limitations as a defense
against an action to foreclose tie
mortgage even though the dep. is
neither discharged nor barred az
against the debtor.
! Young, j., dissents.
| Appeal from the district court Of
Cass county; Charles A. Pollock
Judge.
! Ball, Watson & Maclay, for appel
liant.
| Newman, Spalding G Stambaugh
for respondent.
/ To Painters and Decorators.
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