dissenting.
Section six of the code referred to in the opinion reads as follows: “ An action for the recovery of the title or possession of lands, tenements, or hereditaments, can only be brought within ten years after the cause of such action shall have accrued. This section shall be construed to apply also to mortgages.”
It will be perceived that the subject matter of the section is the title or possession of real property. The clause in relation to mortgages seems to have been intended to apply to cases where, through void proceedings in foreclosure, or otherwise, the mortgagee has obtained possession of the mortgaged premises. In such case the mortgagor must file his bill to redeem within ten years or be barred. See- 4 Kent’s Com., 187. And this construction is supported by sections nine and ten.
Section nine provides: “ Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued.”
Section ten provides : “ "Within five years an action *271upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment.”
It will not be denied that under these provisions an action on the note will.be barred in five years, and the uniform holding of this court has been that the note is the debt, the mortgage a mere incident. Kyger v. Ryley, 2 Neb., 28. Richards v. Kountze, 4 Id., 208. Webb v. Hoselton, Id., 317.
In some of the states, where the common law doctrine as to mortgages, still obtains, it is held that even after the note is barred the mortgagee may proceed in equity upon Ms mortgage and foreclose it. Belknap v. Gleason, 11 Conn., 160. Allen v. Everly, 24 Ohio State, 97. But in Kyger v. Ryley supra, this court expressly held that such was not the law in this state. Section seventeen of the code, while saving the rights of certain parties under disability, provides that “ the absence from the state, death, or disability of a non-resident, save the cases mentioned in this section (infancy, a married woman, insane, or imprisoned), shall not operate to extend the period within which actions in rem. shall be commenced by and against such non-resident, or his representatives.” This proviso is not in the Ohio code, from which ours was copied, and was added to the section in the revison of 1866.
In Peters v. Dunnells, 5 Neb., 460, and Rector v. Rotton, 3 Neb., 177, it was held that the foreclosure of a mortgage was a proceeding in rem,., and in the former case it was held that the action to subject the mortgaged property to the payment of the debt must be commenced within five years. For these reasons I cannot give my assent to the opinion of the majority of the court, so far as it applies to the time within which actions of foreclosure must be brought.
Decree aeeirmed.