dissenting. Appeal by John Stephens and Babcock & Co. from a decree entered in the first district court in favor of complainant at the May term, 1875. The defendants, French, Bogers and Nuckolls do not join in the appeal.
A bill in chancery was filed by said complainant to foreclose a mortgage executed by French in 1869 to secure the payment of certain notes therein named. French made default; but the defendants, John Stephens and Babcock & Co., having obtained judgments against French, subsequent to the execution of the mortgage, made defense as subsequent incumbrancers by setting up the statute of limitations, with alleged defects in the mortgage and its record, and by cross-bill prayed affirmative relief, viz: the cancellation of the mortgage and a decree of priority for their liens over that of the mortgage. Upon the argument of the cause in this court the only question referred to by counsel was the'effect of the statute of limitations and the right of the appellants to plead the same, but the questions as to the alleged error in the mortgage and otherwise were raised *373in the briefs submitted. An amended complaint was filed by the plaintiff making the appellants herein additional defendants. It is claimed by thg appellees that this was done upon the application of the appellants; but nothing is found in the case before us to show it. It appears by the records of the district court to which reference is made in the record in question, that executions have been issued upon the judgments obtained by the appellants and returned wholly unsatisfied.
I believe that from an examination of said record that the decision of the district court should be reversed upon at least two very material points. The first is, that the statutes of this territory settle for us the law of limitations of actions, and consequently a very large number' of authorities cited, which might be applicable elsewhere, are not pertinent to this case. The laws of Wyoming, for the year 1869 (see p. 510, see. 19), under the head of limitations, read as follows: “Within five years; an action upon a specialty, or any agreement, contract or promise in writing, or on a foreign judgment.”
It will be seen that this differs materially from the statutes of most states, which provide that an action may be brought upon an instrument under seal within twenty or twenty-one years; while the legislature of this territory for 1873 materially changed and modified our statute of limitations; that act contains a broad saving clause to the effect that it shall not apply to notes and instruments previously executed. Consequently, the 'statement in the brief .of the appellee, that this case comes within the provisions of the act of 1873, is incorrect, for it does fall within the provisions of the act of 1869, hereinbefore quotqd. It therefore seems unnecessary to consider the question upon which the appellee placed very great importance in his brief and upon the argument — that is, whether a mortgage, being an instrument under seal, executed to secure the payment of certain notes, can be foreclosed when the notes to secure which it was. given are conceded to be barred under said statute, *374if the statute is plead to such foreclosure. Although this is extensively discussed in the opinion of the majority of the court, I am of the opinion that it is entirely irrelevant, as the statutes before referred to say in effect that an action either upon a note or a mortgage, being even under seal, shall be commenced within five years, etc. From the provisions of the law of 1873, this is certainly the rule that governs in this case, and both the notes given and the mortgage in issue are barred by the statute.
Are the appellants, as judgment creditors of I. W. French, entitled to plead the statute of limitations ? It is urged by the appellee that they are not:
1. For the reason that at the time of recovering the judgments, Wild, and not French, was the legal owner of the real estate mentioned, and that said judgments were not a lien upon it, as French then was the owner only of the equity of redemption;
2. That they were not personal judgments against French;
3. That the appellants should have at least exhausted their remedies against the copartnership property of Adams, Green & Co., before proceeding against the individual property of French.
I am of the opinion that the laws of the territory (see laws of 1869, p. 594, sec. 446), furnish a complete answer to the first objection, and if not, that the rules of common law are: See Freeman on Judgts. sec. 339, and many other authorities cited in the briefs of appellant.
In reference to the second, it appears, from the records of the two judgments, that French was personally sued and personally served, consequently those judgments would be good against his individual property, as well as against the property of the copartnership.
As to the last objection, the records, before referred to* show that executions have been issued in more than one instance against the copartnership property of Adams, Green & Co., and returned wholly unsatisfied, but I am of the opinion that even this was not required; that the judg*375merits were personal judgments against said I. W. French, as before stated; and that it was not incumbent upon the appellants to show that they had exhausted any remedies against the copartnership property.
I am unable to see that section 833, of the code of civil procedure, as cited in the opinion of this court, has any-bearing upon this case whatever, and should be considered only in reference to section 830. Further, the appellants, being subsequent incumbrancers, had undoubtedly the right to plead the statute as against the complainant: See Angel on Limitations, pp. 289, 301 and 302, under notes 1, 2 and 4 respectively; also 4 Ohio St. 464; and 18 Cal. 482. But the most complete answer to these various objections is the fact that 'the pleadings herein, taken together, fully admit the rights of the appellants, as claimed by themselves. The complainant voluntarily sets them up in his bill. These defendants do likewise in their answer. No denial whatever, is made, and no issue raised thereupon whatever. It further appears to me that in the examination of these pleadings, we find a full answer to the objection contained in the opinion filed in this court, as to the misnomer of certain parties appellants mentioned in the Babcock judgment. The error, if any there be, was made by the complainant, and under the general rules he should not be entitled to receive any benefit therefrom.
In concluding the case in the district court, and upon appeal from said court, the title first set forth in the complainant’s bill of complaint has simply been followed, and no exceptions whatever were taken thereto. I cannot agree with another portion of that opinion, where it states that the record does not show how the court obtained jurisdiction, but adds that the parties were present, appeared in court and agreed to proceed with the trial of the cause. Appearance in open court and consent by all parties to proceed to trial, should certainly confer jurisdiction.
The bill of the complainant should have been dismissed, and the prayer contained in the cross-bill granted.