Slingerland v. Sherer

• Decision Date: 01 July 1891
• Citation: 49 N.W. 237,46 Minn. 422
• Parties: SLINGERLAND v SHERER ET AL.
• Court: Minnesota Supreme Court

46 Minn. 422

49 N.W. 237

SLINGERLANDvSHERER ET AL.

Supreme Court of Minnesota.

July 1, 1891.

(Syllabus by the Court.)

Where, in an action of foreclosure, the plaintiff seeks to obtain a personal judgment against the mortgagor for the debt, as well as a decree of foreclosure, the 6-year limitation prescribed by section 6, c. 66, Gen. St., and not the 15-year limitation prescribed by section 11 of the same chapter, applies, so far as the action is one for a personal judgment.

Appeal from district court, Dodge county; BUCKHAM, Judge.

Robert Taylor, for appellants.

C. C. Willson, for respondent.

MITCHELL, J.

This is an action of foreclosure wherein the plaintiff seeks to obtain, not only a sale of the mortgaged premises, but also a personal judgment against the defendants for the debt secured by the mortgage. The defendants admit his right to a decree of foreclosure but allege that the right to a personal judgment for the debt is barred by the statute of limitations. The only question is whether, as relates to the remedy of a personal judgment, the 6-year limitation prescribed by section 6 or the 15-year limitation prescribed by section 11, c. 66, Gen. St., as amended, applies. The provisions of statute bearing upon the question are as follows: “Ch. 66, Sec. 3. Actions can only be commenced within the periods prescribed in this chapter.” “Sec. 6. Within six years any action upon a contract or other obligation, express or implied.” “Sec. 11. Every action to foreclose a mortgage upon real estate shall be commenced within fifteen years after the cause of action accrues.” “Ch. 81, tit. 2. Sec. 29. Judgment shall be entered under the direction of the court, adjudging the amount due with costs and disbursements, and the sale of the mortgaged premises, or some part thereof, to satisfy said amount, and directing the sheriff to proceed and sell the same according to the provisions of law relating to sales of real estate on execution, and make report to the court.” “Sec. 33. Upon confirmation of the report of sale, the clerk shall enter satisfaction of the judgment to the extent of the sum bid for the premises, less expenses and costs, and for any balance of said judgment execution may issue as in other cases; but no such execution shall issue on such judgment until after a sale of the mortgaged premises, and the application of the amount realized as aforesaid.” The trial court held that the 15-year limitation applies, and in his memorandum bases his decision upon the following grounds: “There is no reason why full force and effect should not be given to all the provisions of title 2, c. 81, and section 11, c. 66, of the statutes, notwithstanding section 6 of the last-mentioned chapter. The right to foreclose a mortgage by action within fifteen years after the cause of action accrued means the right of a full foreclosure with all its incidents, among which is the provision for a judgment to be entered adjudging the amount due, directing a sale of the mortgaged premises, the application on the judgment already entered of the net proceeds of the sale, and the issue of execution for any balance of such judgment as in other cases.” Substantially the same line of argument is advanced here by counsel for the plaintiff. The fallacy in this argument consists in the assumption that the provisions of title 2, c. 81, referred to, either make a personal judgment for the debt an essential element of a foreclosure suit, or give the mortgagee the right to such a judgment in all cases where he can maintain an action to enforce the lien of his mortgage. The language of the statute neither expressly nor by necessary implication contains any such...