King v. Meighen

• Decision Date: 01 January 1873
• Citation: 20 Minn. 237
• Parties: ALMON KING v. WILLIAM MEIGHEN.
• Court: Minnesota Supreme Court

20 Minn. 237

ALMON KINGv.

WILLIAM MEIGHEN.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Fillmore county.

The action was to have an absolute deed of real estate, executed August 27, 1855, but given to secure the payment of a promissory note, due one year from that date, declared a mortgage, and for leave to redeem. The action was commenced in 1870. The court below ordered judgment for defendant, and it was so entered.

H. R. Wells, for appellant.

Thomas Wilson and N. P. Colburn, for respondent.

BERRY, J.

This is in effect a proceeding to redeem a mortgage upon real estate. Defendant's motion for judgment on the pleadings was granted by the court below, upon the ground that the right to apply for redemption was barred by the lapse of 10 years and more after such right accrued, and before this action was commenced. The statute, as it now reads, provides that "every action to foreclose a mortgage upon real estate shall be commenced within 10 years after the cause of action accrues." Laws 1870, c. 60. The right of action to foreclose, in this instance, accrued in August, 1858, and the last payment upon the mortgage appears to have been made in 1859, at a date not specified.

Computing the limitation from the last day of 1859, the right to foreclose would be barred some time before the action was commenced in October, 1870.

In Holton v. Meighen, 15 Minn. 80, (Gil. 50,) it is said that the right to foreclose and the right to redeem are reciprocal, and the application of this principal in that case is that, as the right to foreclose has not expired, the right to redeem remains in existence. In Caufman v. Sayre, 5 B. Mon. 206, it is remarked by ROBERTSON, C. J., that "the right to foreclose and the right to redeem are reciprocal and commensurable." So, in Koch v. Briggs, 14 Cal. 256, FIELD, C. J., says: "The right to foreclose * * * exists in all cases of mortgage after breach of condition, as does also the right to redeem the property from forfeiture, or from the incumbrance of the lien. These two rights are mutual and reciprocal. When the one cannot be enforced, the existence of the other is denied." See, also, Grattan v. Wiggins, 23 Cal. 34; Cunningham v. Hawkins, 24 Cal. 410; Arminglin v. Lincoln, 34 Cal. 372; 2 Hil. Mortg. § 2 et seq. and notes. See, also, Lord v. Morris, 18 Cal. 482.

The right to foreclose and the right to redeem being reciprocal and commensurable, and the former right being barred by a...