On Petition for Rehearing.
Birdzell, J.The appellant Styles has called to the court’s attention § 8078 of the Compiled Laws of 1913. The section is as follows: “In case of mortgages given to secure the payment of money by instal *407mcnts, each of the instalments mentioned in the mortgage shall be taken and deemed to be a separate and independent mortgage, and the mortgage for each of such instalments may be foreclosed in the same manner and with like effect as if a separate mortgage was given for each of such instalments, and a redemption of any such sale shall have tho like effect as if the sale for such instalments had been made upon a prior independent mortgage.” It is contended that the above section operates to mature the cause of action for the foreclosure of the mortgage as to each instalment at the maturity thereof. Conceding this to be the effect of the statute, it does not follow that it matures the cause ns to the entire amount. Where a mortgage is given to secure an entire sum, it will give rise to a cause of action to foreclose the lien for the entire amount, only when the amount becomes due or is declared due under the acceleration clause. This cause of action may be treated by the mortgagee as being single and indivisible, notwithstanding one or more defaults affecting instalment notes. The effect of a statute such as that quoted above is merely to secure to the holder or holders of instalment notes the right to foreclose the lien of the mortgage applicable to each note, by enabling such holder or holders to exercise the power of sale, and to give a right of redemption from any such sale in like manner as if the instalments represented successive mortgages. The section has no application whatsoever to the right of foreclosure for the •entire amount of the mortgage lien.
Considerable argument is expended in an effort to demonstrate that a right to foreclose the mortgage is barred by the Statute of Limitations, by reason of the fact that more than ten years elapsed 'between the bringing of the action and the maturity of the first instalment note. Throughout this argument counsel has apparently lost sight of the rule followed in the main opinion to the effect that the Statute of Limitations .applicable to a cause of action on a note, and the statute applicable to a cause of action for foreclosure, operate independently of each other. Wo aro not concerned here with a cause of action upon the notes. The .action that is before us is one for the foreclosure of the lien of a mortgage in which the mortgagor has covenanted for a lien to secure the payment of an entire sum. This cause of action did not mature, as pointed •out in the main opinion, until within ten years prior to the bringing of this suit.
*408In the petition for rehearing, counsel also contend that the plaintiffs and respondents are precluded from maintaining this suit by reason of the finding in the previous suit of Styles v. Theo. P. Scotland & Co. 22 N. D. 469, 134 N. W. 708, that Scotland & Company were the owners of the notes. This contention overlooks the effect of the other findings in the same case. The court in that action held that the mortgage was unpaid, and determined the amount as well as the nature of the lien. Styles v. Theo. P. Scotland & Co. 22 N. D. 479, 134 N. W. 708. It would, of course, have been competent for the appellant to have shown in this action that he had discharged a portion of this lien, or, if a portion of it was held by someone not a party to the proceeding, he could have had such party joined. His argument, however, stops short of this, and seeks by technicality to magnify the effect of the previous findings of ownership in favor of Scotland & Company. A finding of ownership in Scotland & Company certainly would not be res judicata as against the interest of a stranger to the proceedings acquired before the suit was instituted.
The petition for rehearing is denied.