82 Minn. 296 | Minn. | 1901
Action to foreclose a real-estate mortgage. Plaintiff had judgment in the court below, and defendants appeal.
The facts are as follows: On July 15, 1879, plaintiff sold and conveyed to defendants the real property described in the com
G-. S. 1894, § 5141, provides:
“Every action to foreclose a mortgage heretofore or hereafter made upon real estate shall be commenced within fifteen years after the cause of action accrues, * * *”
The cause of action referred' to is the debt secured by the mortgage, and not the mortgage itself. The two notes secured by the mortgage involved in this action fell due in 1880 and 1881, respectively. One of the notes was wholly paid in 1894, and the question presented is whether such payment tolled the statute of limitations as to the other note, which became due in 1881, and upon which no payment has ever been made. If not, the judgment appealed from should be reversed. If such payment did not revive and continue the unpaid note, the note and mortgage are both barred by the statute, they being more than fifteen years overdue. If the payment in question operated to prevent the running of the statute as to the unpaid note, it had the same effect as to the mortgage. Carson v. Cochran, 52 Minn. 67, 53 N.W. 1130. If it had no such effect, then both are barred by the statute, and no foreclosure can be had. The payment cannot be held to have had the effect of continuing the mortgage separately
Perhaps a mortgage could be so drawn and worded as to represent and constitute both the evidence of the debt secured, and the security or remedy for its enforcement. But such is not this case. Here the mortgage is conditioned for the payment of $1,000 according to the terms of two promissory notes. Although originally they may have represented but one indebtedness, and that the purchase price of the land, the parties divided and separated it into two distinct contracts, and the mortgage was given to secure them accordingly. A payment upon one of the notes would not amount to a payment upon the other, they being separate and, distinct contracts, and the fact that they were given for parts of the same debt does not change the situation. Brown v. Johnson, 20 La. An. 486; Pond v. Williams, 1 Gray, 630; Burn v. Boulton, 2 C. B. 485; Wood, Lim. 141, 112. A payment of one of a series of notes secured by a mortgage might very properly be held such an acknowledgment of the whole debt as to toll the statute of limitations as to the mortgage, and revive and continue it in force, where a mere verbal acknowledgment is sufficient for that purpose. Such is the law in Vermont. Phelps v. Stewart, 12 Vt. 256; Williams v. Finney, 16 Vt. 297; Martin v. Bowker, 19 Vt. 526. But in this state a verbal acknowledgment or promise to pay is insufficient to prevent the running of the statute of limitations. Such an acknowledgment, to answer such a purpose, must be in writing. G. S. 1891, § 5151. And as the mere payment of the first maturing note cannot have effect or be construed as an acknowledgment of the mortgage, as an independent contract, sufficient to take the case without the statute, we have only to
Judgment reversed.