(dissenting). In my opinion, this action is not barred. The action is in personam. We are agreed that the provisions of the statute which suspend the running of the statute of limitations upon the death or absence of the person against whom the cause of action accrued apply with the same force and effect to actions to foreclose a real estate mortgage as to1 -other personal actions. The mortgagor’s note was due November 1, 1888. Had he been alive and residing in the state upon that date, and defaulted in paying the note, a cause of action would have accrued against ’him, and the statute would have commenced to run against all remedies to enforce payment, including the ¡present action. The record shows, however, that he died in September preceding the maturity of the note, and that no- administrator has been appointed. The statute of limitations has not, therefore, commenced to run, and this action is not barred. It is well settled that a cause of action which has not accrued prior to1 the debtor’s death does not accrue within the meaning of the statute of limitations and start the statute running until a personal representative is appointed. The rule that “the statute of limitations does not begin to run when no administration exists on the decedent’s estate at the time the cause of action accrued” may, I think, be said to be of general application. Benjamin v. DeGroot, 1 Denio (N. Y.) 151; Davis v. Garr, 6 N. Y. 124, 55 Am. Dec. 387; Sanford v. Sanford, 62 N. Y. 555; Bucklin v. Ford, 5 Barb. (N. Y.) 393; Weitman v. Thiot, 64 Ga. 11; Hobart v. Turnpike Co., 15 Conn. 145; Marsteller v. Marsteller, 93 Pa. 350; Murray’s Adm’r v. East India Co., 5 Barn. & Ald. 204; Danglada v. De La Guerra, 10 Cal. 386; Smith v. Hall, 19 Cal. 85; In re Bullard’s Estate, 116 Cal. 355, 48 Pac. 219.
Defendant’s counsel contend that, inasmuch as the plaintiff could have procured the appointment of an administrator, it was its duty to do so within a reasonable time and thus start the running of the statute, and, not having done so, it is guilty of laches, and may not say that the statute has not run. This position was sustained by the Supreme Court of Kansas in Bauserman v. *188Charlott, 46 Kan. 480, 26 Pac. 1051; s. c., 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316. See, also, Culp v. Culp, 51 Kan. 341, 32 Pac. 1118, 21 L. R. A. 550. The weight of authority 'is against this view. It is held generally, and the reason is satisfactory, that, inasmuch as the statute imposes no such obligation, the courts have no right to add it. See cases cited supra; also Scovil v. Scovil, 30 How. Prac. (N. Y.) 246; Gallup v. Gallup, 11 Metc. (Mass.) 445; Hibernia Society v. Herbert, 53 Cal. 375; Casey v. Gibbons (Cal.) 68 Pac. 1032; Fishwick’s Adm’r v. Sewell (Md.) 4 Har. & J. 393 ; Rockwell v. Young, 60 Md. 563.
The majority opinion assumes that the cause of action accrued against the several heirs of the mortgagor; that the statute therefore commenced to run; that it was suspended as to the three heirs who were absent from the state, and that as to them the action is not barred; that it was not suspended as to the heir residing in the state, and as to her the action is barred. The assumption that the cause of action accrued against the heirs is, in my opinion, entirely erroneous. It is true the title to the mortgaged premises passed to the heirs upon the mortgagor’s death, but it was the title only which passed to them. The obligation of the mortgagor did not pass. The mortgagor’s obligation, which this action is brought to enforce, did not by his death become their obligation, and they have not made it their obligation. They merely succeeded to his title, subject, as it was in him, to the plaintiff’s mortgage. The mortgage debt is not their debt, and they do not owe the obligation which the plaintiff is seeking to enforce. They have made no default, 'and it cannot properly be said, therefore, that the cause of action accrued against them. .They are merely parties to the action brought to enforce the obligation of the mortgagor. The statute does not take account of parties to an action as such in fixing the time when the statute commences to run or when it is suspended, but rather the person or persons against whom the cause of action accrues, and the heirs are not the persons against whom the cause of action accrued. Substantially the same question was involved in Colonial & U. S. Mortgage Co. v. Northwest Thresher Co., 103 N. W. 915, in which the opinion has just been handed down. My views are there stated at length in a dissenting opinion, and need not now be restated. I may say, however, that the rule, as applied by the majorit)'-, in this case goes further and is more objectionable than in the case *189referred to. In that case it was held that a mortgagee whose mortgage was recorded was bound at his peril to know that subsequent transfers had been made by the mortgagor, who the grantees were, and, in effect, where they resided. The rule, as applied in this case, charges mortgagees with immediate knowledge of the mortgagor’s death, whether he died testate or intestate, and, if intestate, whether he left heirs, and, if so, how many and where they reside, and, if absent from the state, the correct dates of their departure and return. If he is ignorant of the fact, as he usually will be, or is mistaken as to the fact, as he often must be, -he forfeits his security to those whose interest's in the mortgaged premises are subordinate to his interest. This considered either as a rule of law or of duty, is, in my opinion, indefensible.
(103 N. W. 929.)The statute not having run, the judgment of the trial court should be reversed, and judgment entered for the plaintiff as prayed for in its complaint.