Colonial & United States Mortgage Co. v. Northwest Thresher Co.

Engerud, J.

This is an action to foreclose a mortgage upon 160 acres of land situated in Dickey county. The mortgage was executed on May 16, 1883, and recorded on June 11, 1883. It was given by Fred West, who was then the owner of the land, to secure his note for $335 of even date. The note became due November 1, 1888. No payments have been made upon it. In the fall of 1887 West moved from the territory of Dakota, and has since been absent from this jurisdiction. In December, 1887, after leaving the territory, he conveyed the land to E. S. Brown, receiver of the Northwestern Manufacturing and Car Company, a Minnesota corporation. On February 1, 1888, Brown conveyed -to the Minnesota Thresher Manufacturing Company, also a Minnesota corporation. Both deeds expressly except the plaintiff’s mortgage from the covenants of warranty. On August 7,1901, the last-named grantee conveyed to R. H. Bronson, who had been appointed receiver for said corporation, and on August 9, 1901, the latter conveyed to the Northwest Thresher Company, a Minnesota corporation, the defendant in the present action. These .several corporations had complied with the laws of the territory and state, and were at all times amenable to suit in this jurisdiction. The mortgagor and debtor is not made a party to this action. The only relief sought is a decree for the foreclosure of the mortgage and the sale of the mortgaged premises to satisfy the debt. The defendant interposed as its sole defense the statute of limitations. This defense was overruled by the trial court, and judgment was rendered as prayed for in the complaint. The defendant has appealed from the judgment, and demands a review of the entire case in this court, under section 5630, Rev. Codes 1899.

The only question involved upon this appeal is whether the statute of limitations is available to this appellant as a defense against the plaintiff's action. The time within which an action to foreclose a mortgage of real property must be commenced in this state is limited to ten years from the time the cause of action accrued. Rev. Codes 1899, sections 5199, 5200. If, when a cause of action shall accrue against any person, he shall be out of the state, the statute does not begin to run until his return into the state. Rev. Codes 1899, section 5210.

Appellant first contends that this action is one in rem against the mortgaged property, and hence that the several objections which will be hereafter noticed, urged against the defense of the statute on the ground that -the person against whom the cause of action accrued was absent from the state, have no application. We are agreed that this is not an action in rem, but an action in personam. Our views on this subject are full)'' and clearly expressed by Judge Mitchell in Bardell v. Collins, 44 Minn. 97, 46 N. W. 315, 9 L. R. A. 152, 20 Am. St. Rep. 547: “It is not an action in -rem, but an action in personam. It is true, it has for its object certain specific real property against which it is sought to enforce the lien of the mortgage, and in that sense i-t partakes somewhat of the nature of a proceeding in rem, but not differently, or in any other sense, than do actions in ejectment, replevin, for specific performance of a contract to convey, to determine -adverse claims to real estate and- the like. The rights and equities of all parties interested in the mortgaged premises are to be adjusted in the action, which proceeds, not against the property, but against the persons; and the judgment binds only those who are parties to the suit and -those in privity with them. Whalley v. Eldridge, 24 Minn. 358. Next, it is not only an action in personam, but is also strictly judicial in its character, proceeding according -to due course of common law, like any -other action cognizable in courts of -equity -or -common law.” We are all, therefore, of the -opinion that the absence from the state -oE the person against whom the cause of action accrued stays the running of the -statute of limitations against an action to foreclose a mortgage, the same as in any other action in personam.

The mortgage debt was due November 1, 1888, and the present cause of action, therefore, accrued not later than November 2, 1888. At that time the mortgaged premises were -owned by the Minnesota Thresher Company, and su-ch ownership continued until 1901. That company was a -foreign corporation -organized and existing under the laws of Minnesota. It was stipulated to be a fact, however, that said corporation during all that time was doing business here; that during all the time mentioned it had a resident agent authorized to accept service of process, and had in all respects complied with the laws of the territory, and subsequently those of the state, relating to foreign corporations doing business here. It was further stipulated to be a fact that the appellant Northwest Thresher Company was organized in June, 1901, under the laws of Minnesota, as the successor of the Minnesota Thresher Company, for the purpose of taking and absorbing the property, assets and business of the old company, and that the new company has continued to do business in this jurisdiction, and has complied with all the conditions imposed by law upon foreign corporations doing business in this state. The respondent contends that the statute does not run in favor of a foreign corporation, even though it has been continuously doing business in this state, and though it could at all times have been personally served with process within this jurisdiction. The weight of authority is against respondent’s contention. Huss v. Railway Co., 66 Ala. 472; Lawrence v. Ballou, 50 Cal. 258; King v. National M. & E. Co., 4 Mont. 1, 1 Pac. 727; Wall v. Railway Co., 69 Iowa, 498, 29 N. W. 427; Insurance Co. v. Duerson’s Ex’r, 28 Grat. 630; Turcott v. Railway Co. (Tenn. Sup.) 45 S. W. 1067, 40 L. R. A. 768, 70 Am. St. Rep. 661; City v. Railway Co. (Minn.) 48 N. W. 17; Pennsylvania Co. v. Sloan, 1 Ill. App. 364; Abell v. Insurance Co., 18 W. Va. 400. The courts of New York, Wisconsin and Nevada hold that a foreign corporation is incapable of being present in a state other than that under whose laws it exists, and hence, under all circumstances, a foreign corporation is absent from .all other states than that of its domicile. Consequently those courts hold that a foreign corporation comes within that provision of the statute of limitations which excepts absentees from .its operation. Olcott v. Railway Co., 20 N. Y. 210, 75 Am. Dec. 393; Rathbun v. Railway Co., 50 N. Y. 656; Larson v. Aultman & Taylor Co. (Wis.) 56 N. W. 915, 39 Am. St. Rep. 893 ; Insurance Co. v. Fricke (Wis.) 74 N. W. 372, 41 L. R. A. 557; State v. Society (Wis.) 79 N. W. 220; Robinson v. Imperial, etc., Co., 5 Nev. 44. In our opinion, the rule adopted by .the majority of the courts is the sound one — that 'a corporation, although created by the laws of another state, should be deemed to be present in the state, and entitled to the protection of the statute of limitations, if it has been regularly engaged in doing business in this state, and has had its agent or agents here, and been amenable to personal service of the process of our courts.

It is urged, however, by respondent, that the decision in Olcott v. Railway Co., 20 N. Y. 210, 75 Am. Dec. 393, is conclusive upon us, because our statute of limitations, including the provision which now appears as section 5210, Rev. Codes 1899, was borrowed from New York, and adopted in this state after the decision in Olcott v. Railway Co. was rendered, and hence it must be presumed that the act was adopted with the interpretation placed upon it by the courts of the state from which it was borrowed. The rule invoked is a familiar one often recognized by this court, but we do not think it has any application in this case. The defendant in that case was a Pennsylvania corporation, and had not been amenable to process in New York the full six years required to bar the action. It was asserted in its behalf, however, that the provisions which excepted from the operation of the statute persons absent from the state applied only to natural persons; and it was argued, therefore, that a foreign corporation could successfully plead the limitation statute of New York in bar of an action against it in that state, even though it had been beyond the reach of process from the courts of that state the entire six years. The court held that a corporation was a “person” within the meaning of the law, and that, if it had not been subject to the process of the courts of the state, it could not invoke the statute of limitations. Whatever else was said in that case was obiter dicta.

The question whether a corporation can or cannot be present in any state other than that under whose laws it was • organized is a question rather of general law than of interpretation of this statute. It is a question we should feel at liberty to decide for ourselves, even if the rule counsel invokes were an inflexible one. We hold, therefore, that the statute of limitations has run in favor of this defendant and its predecessor, the Minnesota Thresher Company, if the latter was the person against whom the cause of action accrued.

This brings us to the question upon which the members of this court are unable to agree. Did the absence from the state of the mortgagor and debtor, West, prevent the running of the statute against this suit to foreclose the mortgage ? The courts of Illinois, Texas, Kansas and Iowa hold that the debtor’s absence, even though he has parted with the title to the mortgaged premises, tolls the statute. In California, Washington, Oregon, Nebraska, Missouri, New York and South Carolina the contrary has been held. The majority of the court has reached the conclusion that the absence of West did not toll the statute.. Our attention has been called to the following cases from Illinois: Emory v. Keighan, 94 Ill. 543; Schifferstein v. Allison, 24 Ill. App. 294; Id., 123 Ill. 662, 15 N. E. 275; Banking Ass’n v. Bank, 157 Ill, 524, 41 N. E. 919; Jones v. Foster, 175 Ill. 459, 51 N. E. 862; Richey v. Sinclair, 167 Ill. 184, 47 N. E. 364. Analysis will show that none of these cases are authority in this jurisdiction. In Emory v. Keighan, Banking Ass’n v. Bank and Jones v. Foster, the facts were that the owner of the equity of redemption had been absent from the state; and in Schifferstein v. Allison a partial payment had been made within the statutory period by the owner of the fee. In Richey v. Sinclair, however, the mortgagor had been absent from the state after he had parted with the title, and it was held that his absence prevented the statute from running in favor of his grantee. The reasoning in the last case cited, as well as in the others from that state, is based upon two propositions, which will be found most clearly set forth in Pollock v. Maison, 41 Ill. 516; (1) A mortgage was there regarded as a conveyance of an estate in -land, 'defeasible only by the extinguishment of the debt. (2) The statute of limitations was regarded as creating a presumption of payment or release of the debt by lapse of time, and hence the neglect of the creditor to commence an action to recover his debt within the statutory period was .presumptive evidence that the debt was extinguished. It followed as a necessary consequence that, if the debt was extinguished, the mortgagee’s estate was likewise extinguished, and, conversely, if the debt was not extinguished, the mortgagee’s title was not defeated. As to whether’ the later rulings in Illinois are sound in principle, in view of the changes made by the legislature of that state in the limitation laws since the decision in Pollock v. Maison, we venture no opinion. See, however, Tate v. Hawkins, 81 Ky. 577, 50 Am. Rep. 181. It is manifest that the decisions from Illinois proceed upon a theory that is untenable in this state. Here, under the express provisions of our 'Civil Code, a mortgage is a mere lien, and conveys no estate in the land. Rev. Codes 1899, section 4699; Halloran v. Holmes, 13 N. D. 411, 101 N. W. 310. The statute of limitations of this state does not create presumptions or extinguish obligations. It merely bars the remedy upon which it operates, if the defendant elects to avail himself of the statutory defense by answer. Satterlund v. Beal, 12 N. D. 122, 95 N. W. 518; Wood on Limitations, section 5; Fowler v. Wood, 78 Hun, 304, 28 N. Y. Supp. 976, affirmed 150 N. Y. 584, 44 N. E. 1124. In Oregon and Nebraska it was held that the absence of the mortgagor did not toll the statute, because the action to foreclose was an action in rem. Anderson v Baxter, 4 Ore. 105; Peters v. Dunnels, 5 Neb. 460. We cannot follow these cases, because we hold that this action is not in rem. The decisions from Texas, Kansas and Iowa are in point, but, in our opinion, those decisions rest on propositions which are as unsound in principle as they are opposed to precedent. They lead to absurd and unjust results, and thwart the object sought to be obtained by the statute, instead of promoting that object and furthering justice. Cases fairly representing the views of the Texas courts are Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682; Falwell v. Hening, 78 Tex. 278, 14 S. W. 613. From Kansas may be cited Waterson v. Kirkwood, 17 Kan. 9, and Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; and from Iowa, Clinton Co. v. Cox, 37 Iowa, 570; Brown v. Rockhold, 49 Iowa, 282; Robertson v. Stuhlmiller, 93 Iowa, 326, 61 N. W. 986; and Leeds Lumber Co. v. Haworth, 98 Iowa, 463, 67 N. W. 383, 60 Am. St. Rep. 199.

The rule adopted by these several courts seems to have been based upon the same reasons. Those reasons are tersely stated in Clinton County v. Cox, 37 Iowa, 570, as follows: “Under the laws of this state a mortgage conve}?s no interest in or title to lands, but is simply a lien thereon for the purpose of securing the indebtedness which is its foundation. It is an incident — a security in the nature of a lien — of the debt. It survives until the debt be paid or discharged, or the mortgage is released. It is a convoy bearing a lien for the protection of the debt, and as long as that exists it is not relieved of the duty of protection, or rendered ineffective for that purpose. When the debt is discharged, or, by operation of law, may no longer be enforced, its functions terminate, and not before.” In that case, as in the others cited, it was held that the absence of the debtor after he had parted with the title prevented the statute from running in favor of his grantee against a suit to foreclose. It is clear that a part payment by the mortgagor after the conveyance would have had the same effect, because, under the rule which these cases announce, any act which prevents the statute from running in favor of the debtor has the like effect on the mortgage, whether the debtor has any interest in the mortgaged premises or not.

It will be observed that the fundamental proposition upon which the reasoning is based which has led to the conclusions reached by the courts of Iowa, Kansas and Texas is this (quoting from Clinton Co. v. Cox, 37 Iowa, 570) : “It [the mortgage] is an incident * * * of the debt. It survives until the debt be paid or discharged, or the mortgage is released. * * * When the debt is discharged, or by operation of law may no longer be enforced, its functions terminate, and not before.” The fallacy in this proposition is patent. It is true that the mortgage is a mere incident to the debt — “a convoy bearing a lien for the protection of the debt.” It is also true that the extinguishment of the debt also extinguishes the mortgage. It is not true, however, that, when the personal liability for the debt is no longer enforceable by reason of the statute of limitations, the functions of the mortgage terminate. It is not true, because the fact that the statutory defense is available to the debtor does not extinguish the debt. It merely bars the remedy to enforce the personal liability, and leaves the debt in existence. Consequently, so long as the debt is not extinguished, the mortgage exists, and is enforceable until the remedies to enforce the lien are also barred b)' the lapse of time within which the statutes require them to 'be invoked. The statute of limitations operates on the remedy only. That being the effect and operation of the statute, it follows that the remedy against the debtor on his personal liability may be barred by lapse of time and yet the remedy upon the mortgage remain available; and it is likewise apparent that the converse is true, the remedy for the enforcement of the mortgage may be barred although an action at law against the debtor is still maintainable.

The decisions in Kansas, Iowa and Texas are erroneous, because those courts have misapplied the doctrine that a mortgage is a mere incident of the debt it secures. It is true that, by reason of this relationship of the mortgage to the debt, anything that operates to extinguish the latter necessarily discharges the former, because the incident cannot survive the principal. These courts, however, fail to distinguish between the extinguishment of the debt itself and the absence or loss of a remedy to enforce the personal liability for it. The failure to make the distinction is apparently due to the fact that those courts have assumed, as it was expressly declared in Schmucker v. Seibert, 18 Kan. 104, 109, 26 Am. Rep. 765, and in Duty v. Graham, 12 Tex. 427, 435, 436, 62 Am. Dec. 534, that, because the mortgage is an incident to the debt, therefore the remedy to enforce the lien was also a mere incident or part of the remedy or cause of action against the debtor to enforce his personal liability. This reasoning, and the propositions upon which it rests, are in direct conflict with the overwhelming weight of authority. Joy v. Adams, 26 Me. 330; Thayer v. Mann, 19 Pick. 535; Richmond v. Aiken, 25 Vt. 324; Baldwin v. Norton, 2 Conn. 161; Pratt v. Huggins, 29 Barb. 282; Fowler v. Wood, 78 Hun, 304, 28 N. Y. Supp. 976; Colton v. Depew, 60 N. J. Eq. 454, 46 Atl. 728, 83 Am. St. Rep. 650; Demuth v. Bank, 85 Md. 315, 37 Atl. 266, 60 Am. St. Rep. 322; Arthur v. Screven (S. C.) 17 S. E. 640; Elkins v. Edwards, 8 Ga. 326; Bizzell v. Nix, 60 Ala. 281, 31 Am. Rep. 38; Browne v. Browne, 17 Fla. 607, 35 Am. Rep. 96; Kendall v. Clarke, 90 Ky. 178, 13 S. W. 583; Tate v. Hawkins, 81 Ky. 577, 50 Am. Rep. 181; Ins. Co. v. Brown, 11 Mich. 265; Wiswell v. Baxter, 20 Wis. 680; Whipple v. Barnes, 21 Wis. 332; Lewis v. Schwenn, 93 Mo. 26, 2 S. W. 391, 3 Am. St. Rep. 511; Bush v. White, 85 Mo. 339; Bank v. Guttschlick, 14 Pet. 19-30, 10 L. Ed. 335; Eubanks v. Leveridge, 4 Sawy. 274, Fed. Cas. No. 4544. It has been held that the two causes of action could not even be joined in the absence of a statutory provision to that effect. Ins. Co. v. Brown, 11 Mich, 265; Borden v. Gilbert, 13 Wis. 670; Stilwell v. Kellogg, 14 Wis. 461; Cary v. Wheeler, 14 Wis. 281; Faesi v. Goetz, 15 Wis. 231; Doan v. Holly, 25 Mo. 357, and 26 Mo. 186.

The doctrine established by the foregoing cases is well stated by Judge Deady in Eubanks v. Leveridge. The case was tried in the federal court in Oregon, and, of course, the decision of the Supreme Court of Oregon on the question involved was conclusive on the federal court sitting in that state. The state court had held that an action to foreclose was not barred by the absence of the mortgagor after -he parted with the title, because the action was in rem; but Judge Deady reached the same conclusions for reasons different from those of the state court'. He said: “But I apprehend the true doctrine to be that the remedy upon the note and mortgage is, like the transaction itself, twofold. The making and delivery of the note, and the failure to pay the same according to its tenor, gives the holder thereof a right of action against the maker, upon which he can obtain a .personal judgment for the sum due thereon. So the execution and delivery of the mortgage creates a lien upon the ¡property included in it to secure the payment of the sum mentioned in the note, and, in. case of -a default in such payment, a suit may be maintained upon this ‘sealed instrument/ the mortgage, to enforce such lien for the purpose of paying the debt. Notwithstanding section 410 of the Code provides that in a suit ‘to foreclose a lien, where there is also a personal obligation for the payment of the debt/ in addition to the decree of foreclosure and sale, ‘a decree may be given against the person giving the -same for the amount thereof/ yet I apprehend that either the remedy upon the personal obligation or the mortgage may be pursued for the collection of the debt without reference to the other. * * * These authorities go to show that the holder of a note and mortgage has two distinct remedies for the collection of his debt, and that they exist and may be pursued independently of each other.”

The doctrine recognized and established by these cases has been embodied in our Civil Code, and is expressed by section 4C96, Rev. Codes 1899, which declares: “A lien is not extinguished by the mere lapse of time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation.” Bearing in mind the proposition established by the foregoing authorities and embodied in our Civil Code by the section just quoted, that the debt and the mortgage give rise to distinct and independent remedies, either of which may be resorted to within the time limited by the statute for each so long as the obligation secured by the mortgage is not extinguished, it seems to us the question is one of easy solution.

The remedy on the personal obligation for the debt and that on the mortgage may, and often must, be pursued against different defendants and in divers jurisdictions. The remedy on the mortgage must be invoked in the jurisdiction where the property lies, and the time within which it must be commenced is governed by the law of that state. The only person or persons affected by that remedy are those who are interested in the property adversely to the mortgage. Those persons are the only necessary parties to such an action. It is against them that the cause of action for the foreclosure of the lien accrues. It is in their favor and for their protection that the statute operates. The acts or situation of the debtor who has no interest in the land clearly should not toll the statute in an action to which he is not a necessary party. It is clear that it is -only he in whose favor and for whose protection the statute operates w-h-o -can waive or deprive himself of its benefits. Such is the reasoning of the courts of California, Washington, New York, Missouri and South Carolina, and we think those decisions are in accord with 'both law -and common sense. Wood v. Goodfellow, 43 Cal. 185; Watt v. Wright, 66 Cal. 202, 5 Pac. 91; George v. Butler, 26 Wash. 456, 67 Pac. 263, 57 L. R. A. 396, 90 Am. St. Rep. 756; Denny v. Palmer, 26 Wash. 469, 67 Pac. 268, 90 Am. St. Rep. 766; Bush v. White, 85 Mo. 339 ; Arthur v. Screven (S. C.) 17 S. E. 640; Fowler v. Wood, 78 Hun, 304, 28 N. Y. Supp. 976, affirmed in 150 N. Y. 584, 44 N. E. 1124. See, also, Tate v. Hawkins, 81 Ky. 577, 50 Am. Rep. 181.

Our attention has been called to Prof. Pomeroy’s definition of the term “cause of action” in sections 452 et seq. of Pomeroy’s Code Remedies, where that author -deals with the subject of joinder of causes of action under the Code. \[t is claimed that the definition there given by Prof. Pomeroy -of the term “-cause of action” is the only -accurate definition of that term, and that it is universal in its application. However interesting a -discussion of that subject may be from an academic standpoint, it is unnecessary to indulge in -such a discussion in solving the problem -presented in this case. The view we take -of the question before us does not make it necessary to question or criticize Prof. Pomeroy’s definition. It is not the cause -of action that is barred by the statute of limitations; it is the remedy for the cause of action that is taken away. This is plainly recognized, and -even well illustrated, by some of Prof. Pomeroy’s illustrations in section 454 of the work referred to-. A contract to convey lands, and defendant’s breach, constitute a “cause of action.” The single cause of action gives rise to- two remedies or actions: First, an action for damages; second, a suit for specific performance. Now, suppose the former were barred in six years and the latter in ten years, it is plain to be seen that the plaintiff having such “cause of action” might be deprived of his action for damages by lapse of time and still maintain specific performance. In other words, the single cause of action gave rise to the right to two remedies or actions; on-e remedy is barred, but the other remains. The same is true of a mortgage. The nonpayment of the debt is a single cause of action in the sense that term is used by Prof. Pomeroy, but it gives rise to two remedies: First, an action at law to recover the debt; and, second, a suit in equity to -foreclose the mortgage. The former remedy is barred in six years, and the latter is not -barred until ten years. If is not claimed by Prof. Pomeroy that the .proposition stated by Judge Deady in Eubank v. Lev-eridge, supra, and the other cases cited in that connection, is not true; nor does the argument of Prof. Pomeroy in any way conflict with the reasoning and the proposition in that case. It may be true that the term “cause of action” is improperly used in this connection by the judges who wrote the opinions in all the .cases cited above, but the idea those cases -convey to a practical mind is that the nonpayment of the debt gives rise to two distinct causes of action — an action on the debt, and a suit to foreclose. These cases also serve to show that the term “cause of action” is commonly used in a sense different from.that attached'to it by Prof. Pomeroy, the technical accuracy of which we do not -care to question.

Section 5106, Rev. Codes 1899, directs that “words used in any statute are to be understood in t'heir ordinary sense, -except when a contrary intention plainly appears.” A-nd section 5151, Rev. Codes 1899, directs that “words and phrases are to be construed according to the context and approved usage of th-e language; but technical words and phrases and such -others as have -acquired a peculiar and appropriate meaning in law, or are defined by statute, are to be construed according to such peculiar and appropriate meaning or definition.” Section 5147, Rev. Codes 1899, provides that “the provisions of the Code of Civil Procedure and all proceedings under it are to be liberally construed with a view to effect its objects and promote justice.” We think that the term “cause of action” as used in the statute of limitations is used, not in the technical sense that Prof. Pomeroy uses it, but the -statute uses it in- the popular sense -of the right to maintain the particular action against which the statute is invoked. It is a matter of common knowledge that such is the common meaning of the term, and that fact is well illustrated by the use of that term in the numerous decisions we have cited. This interpretation of the term serves to- promote the object of the statute and further justice -and conforms to the requirement “words should be construed in their ordinary sense.” Attaching the ordinary meaning to the term “cause of action,” it is clear that a cause of action accrues, within the meaning of the statute of limitations, when the holder thereof first obtains the right to resort to that particular form of action for relief. Ganser v. Ganser, 83 Minn. 199, 86 N. W. 18, 85 Am. St. Rep. 461.

The question, then, is, against whom did the right of foreclosure accrue ? There can be only one answer to that question. It accrued against the person or persons who were interested in the land adversely to the mortgage. These are the only necessary parties defendant. It is their right or title which it is the object of the suit to extinguish by means of a judicial sale, to the end that the proceeds of such sale may be applied to the satisfaction of the debt. Jones on Mortgages (6th Ed.) section 1394 et seq. It is entirely immaterial whether that person happens to be the mortgagor and debtor, or some third person holding title subject to the mortgage. In either case the obligation created -by the mortgage that the debt shall be paid from a sale of the land in a judicial proceeding is equally binding on the fee owner. The mortgage was a contract with the owner of the fee to the effect that, if the debt was not paid at maturity, then the debt could be collected out of the land by an action against any person who might subsequently become the owner. It was not a contract that the mortgagor would pay, or that he would sell the land and pay, but it was a contract that the land should pay. It was an obligation which became fastened upon the land itself, and was enforceable against any person who might subsequently become the owner. Consequently the failure of the personal debtor to pay at maturity gave the mortgagee a right to maintain an action to enforce the obligation which the mortgage fastened on the land. It manifestly does not lie in his mouth to say that he was not bound to know against whom to commence the action. He had no right to assume that the mortgagor would forever continue to be the owner of the land. The mortgage gave him no assurance on that subject. The statute was notice to the mortgagee that every day's delay in enforcing the mortgage brought him so much' nearer to the time when his remedy would be gone. In short, the instant the right to enforce the mortgage arose, that instant the mortgagee was put on inquiry to ascertain against whom the action to enforce it must be brought. It is incorrect to say that this reasoning foists a new contract on the mortgagee without his consent. As stated before, his contract in the mortgage was that the land should be answerable for the debt if the personal debtor failed to pay, but the mortgagor did not agree to continue his ownership of the land nor to personally sell the land. He merely gave the mortgagee a remedy for the collection of the debt from the land by an action to be brought against whomsoever might be the owner when the remedy became available. And the mortgagee’s neglect to -avail himself of that remedy within the time fixed by the statute is a good defense to the action. Such is the plain language and manifest intent of the statute. Fowler v. Wood, supra. It is also just as clear that it is the intent of the statute that the remedy shall not be barred by the lapse of time in favor of a necessary party defendant who is not within -the reach of process, so he can be personally served. Yet the Kansas cases lead to the result that, although the owner of the fee is a necessary party, yet his absence from the state does not toll the statute. Hogaboom v. Flower, 72 Pac. 547.

One more point remains to be noticed. Respondent contends that on the facts of this case it must- be presumed that the amount of the mortgage debt was retained by West’s grantee from the purchase price for the purpose of satisfying the mortgage, and that the land thereby became the primary fund for the payment of the debt; that the land stood charged with a trust in the hands of West’s immediate ,and remote grantees, including this appellant, for the payment out of the land of the mortgage -debt; that this trust was one for the protection of West a-s well as the plaintiff; and, -inasmuch as West is still liable for the debt, an-d could not plead the statute as a -defense in this state, therefore the plea of statute of limitations by this defendant ought not in equity to be permitted. To sustain this contention, the court would have to assume the power to ignore the statute of limitations because in- its opinion equity requires it. There are -only two things which could stay the running of the statute against this action: Absence of the defendant, or 'an acknowledgment or new promise within ten years, which new promise or acknowledgment can be proved only by a partial payment or written evidence. In this case neither of these are present, and the court has no power to recognize any exceptions to the statute other than- those which the legislature has made. Teigen v. Drake, 13 N. D. 502, 101 N. W. 893. The plaintiff’s cause of action accrued in November, 188-8, against the Minnesota Thresher Company, and became -barred- in November, 1898, before this defendant acquired the land.

The judgment is reversed, and the district -court is directed to enter judgment in favor of the appellant and against the respondent for the dismissal of the action and for the taxable costs and disbursements.