Whalley v. Eldridge

24 Minn. 358 | Minn. | 1877

Gilfillan, C. J.

By Gen. St. c. 66, § 11, title 2, every action to foreclose a mortgage must be commenced within twenty years after the cause of action occurs. Laws of 1870, e. 60, amended this section, reducing the time to ten years. Section 15 of c. 66 contains the general provision that “if, when a cause of action accrues against a person, he is out of “the state, the action may be commenced within the times herein limited, after his return to the state,” etc.

The appellant claims that this refers only to a personal .action or action in personam, and has no application to an action in rem; and that, as an action to foreclose a mortgage is an action in rem, or against specific property, the exception to the running of the time limited by statute does not apply. But an action to foreclose is not an action in rem. It is true •the action has specific property for its subject or object. So has the action of ejectment, replevin, to enforce a mechanic’s hen, or for specific performance of a contract to convey. But this does not make them actions in rem.

Such actions belong chiefly to maritime and revenue jurisdictions, and when the court has acquired jurisdiction of the thing its judgment in respect to it is binding' upon all the world. This is not the case in an action to ‘foreclose; for in such action the judgment binds only those who are parties, and affects the property only to the extent of their interest in it. The action must be brought against a person as defendant upon a cause of action with respect to the property which exists as to such person, and the court must get jurisdiction of such person before it can render a judgment which will affect him. The necessity of making all persons bound by the lien of the mortgage parties, in order to secure to the-plaintiff all the relief with respect to the property which he is entitled to, brings the action to foreclose within the reason of section 15.

Order affirmed.