(dissenting). We are all agreed that an action to foreclose a real estate mortgage is an action in personam, an'd that the statute of limitations, together with those provisions which suspend its running upon the death or absence of the person against whom the cause of action accrues, apply to it in like manner as to other personal actions. From this, in my opinion, the conclusion necessarily follows that this action is not barred.
The debtor died November 5, 1884. Subsequently administration was granted upon his estate, and on the date when his obligation matured, to wit, January 1, 1887, a personal representative stood in his place, and the statute commenced to run. Had the administrator continued to reside in the state, the action would have been barred at the expiration of ten years. The record shows that the administrator left the state in the middle of the year 1896. That was less than ten years, and approximately nine years and six months, before the bar of the statute would have fallen had he remained in the state. His departure from the state suspended the further running of the statute. This action was commenced before the appointment of the second administrator, and when it was commenced the statute had run but nine and one-half years. It was therefore brought within time, and is not barred.
I entirely disagree with my associates upon the fundamental principle upon which they rest their conclusion, i. e., that the cause of action accrued against the heirs. My views upon that question are set out at length in a dissenting opinion in Colonial & U. S. Mortgage Co. v. Northwest Thresher Co., 103 N. W. 915, and in Colonial & U. S. Mortgage Co. v. Flemington, Id. 929, in which opinions have just been handed down. They will not, therefore, now be repeated.
The judgment of the district court should be reversed, and judgment entered for the plaintiff as prayed for in his complaint.