Austin v. Barnum, 52 Minn. 136

Austin v. Barnum

52 Minn. 136 | Minn. | 1892

Collins, J.

Practically, this case was disposed of by Carson v. Cochran, ante, p. 67, (53 N. W. Kep. 1130,) wherein it was held that a partial payment or an acknowledgment of the debt which would prevent the statute of limitations from running against it would also prevent the statute from running against the remedy on the security. The contract of sale between these parties bore date November 10, 1890, while the mortgage involved was executed and delivered on February 10, 1874, and was recorded about two months later. The abstract of title furnished by appellant vendor omitted to show when the debt matured, but from the record it was disclosed that it fell due sixty days from the date of the mortgage. More than sixteen years had elapsed when appellant contracted to sell, stipulating to convey a good title by warranty deed, and that if, upon examination, his title should be found defective, the money paid by respondent should be returned; the contract becoming inoperative-*139Because of the mortgage, which of record was unsatisfied and undischarged, the title was defective, and respondent’s right of action accrued. The time for payment of the debt may have been extended by agreement of the parties, or partial payments may have been made, operating to prevent the running of the statute of limitations against the mortgage security, thus keeping it still alive. The error of counsel lies in assuming that the period of time within which a mortgage may be foreclosed under our statutes commences to run, without qualification or exception, on the day the debt secured thereby matures. The respondent was entitled to a marketable title; one clearly shown to be good; one free from reasonable doubt. Thus, it is said that a title depending upon the bar of the statute of limitations may be a marketable title, providing it clearly appears that the entry of the real owner is barred. Pratt v. Eby, 67 Pa. St. 396, cited with approval in Townshencl v. Goodfellow, 40 Minn. 312, (41 N. W. Rep. 1056.) Therefore, if it be claimed that the right to foreclose is barred by the statute of limitations, it should clearly appear, at least, that the time prescribed by statute has not been prolonged by some act of the parties which has operated to prevent the running of the statute against the debt itself.

Conceding that the finding in respect to the statement of the respondent concerning the satisfactory character of the abstract was supported by competent testimony, we fail to see how he thereby waived his right to insist upon a perfect title.

Order affirmed.

(Opinion published 53 N. W. Rep. 1133.)