66 Neb. 606 | Neb. | 1903
Nares brought an action in the district court for Boone county to foreclose a mortgage executed by George M. and Louisa A. Bell. Patrick H. Smith was the owner of a prior mortgage, made to him March 4, 1888. This mortgage secured two notes, — one for $150, due in one year, the other for $50, due in eighteen months. Gn the 31st day of August, 1900, he intervened in the action brought by Nares, claiming a foreclosure of his mortgage for the full amount secured thereby, and asking that it be declared a first lien upon the mortgaged premises. As will be noticed from the above statement, the note for $150 had matured more than ten years prior to the filing of his petition of intervention, and the statute of limitations was interposed against his recovery so far as this note is concerned. The district court entered a decree foreclosing the mortgage for the full amount secured thereby, and the case is brought here upon error.
Should the district court have entered a decree foreclosing the mortgage for .the full amount secured thereby, or had the intervener, by his neglect to commence foreclosure proceedings within ten years from the maturity of the note, lost his right to foreclose for the amount represented by that note? It is insisted by the defendant in error that where a mortgage secures a debt payable by in-stalments, the statute does not commence to run against a x foreclosure of the mortgage until the last instalment has matured; and we are cited to several cases where the debt or the interest reserved upon the debt was payable in instalments, and the mortgage contained a clause ma
We recommend that the decree of the district court be reversed and the case remanded with directions to enter a decree in favor of the intervener, foreclosing his mortgage for the amount due upon the note for $50, and dismissing his petition so far as it asks a foreclosure for. the amount due upon the note for $150.
Reversed and remanded.
Third edition, by John M. Gould.
See Parker v. Banks, 79 N. Car., 480.