Whalley v. Eldridge

Decision Date31 December 1877
Citation24 Minn. 358
PartiesSAMUEL WHALLEY, administrator, <I>vs.</I> GEORGE E. ELDRIDGE, impleaded, etc.
CourtMinnesota Supreme Court

I. V. D. Heard, for appellant.

John B. & W. H. Sanborn, for respondent.

COPYRIGHT MATERIAL OMITTED

GILFILLAN, C. J.

By Gen. St. c. 66, § 11, title 2, every action to foreclose a mortgage must be commenced within twenty years after the cause of action occurs. Laws of 1870, c. 60, amended this section, reducing the time to ten years. Section 15 of c. 66 contains the general provision that "if, when a cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his return to the state," etc.

The appellant claims that this refers only to a personal action or action in personam, and has no application to an action in rem; and that, as an action to foreclose a mortgage is an action in rem, or against specific property, the exception to the running of the time limited by statute does not apply. But an action to foreclose is not an action in rem. It is true the action has specific property for its subject or object. So has the action of ejectment, replevin, to enforce a...

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25 cases
  • Colonial & U.S. Mortg. Co. v. Nw. Thresher Co.
    • United States
    • North Dakota Supreme Court
    • April 27, 1905
    ...against the persons; and the judgment binds only those who are parties to the suit, and those in privity with them. Whalley v. Eldridge, 24 Minn. 358. Next, it is not only an action in personam, but is also strictly judicial in its character, proceeding according to due course of common law......
  • Bush v. White
    • United States
    • Missouri Supreme Court
    • October 31, 1884
    ...and by the process of a sale out of court under the power of sale contained in the mortgage. Emory v. Keighan, 94 Ill. 543; Whalley v. Eldridge, 24 Minn. 358. But if the mortgageor's absence happens after he has parted with his estate or been divested of it, the reason for deducting his abs......
  • Colonial & United States Mortgage Company, Limited v. Northwest Thresher Company
    • United States
    • North Dakota Supreme Court
    • April 27, 1905
    ...follows only because pending in a federal court sitting in Oregon. The doctrine is repudiated in Minnesota, Iowa and Illinois. Walley v. Eldridge, 24 Minn. 358; Brown Rockhold, 49 Iowa 282; Emery v. Kiegham, 94 Ill. 543. The statute of limitations, including sections suspending its running,......
  • Brinkman v. Bank of Am., N.A.
    • United States
    • U.S. District Court — District of Minnesota
    • August 17, 2012
    ...action has been long-settled under Minnesota law. See, e.g., Curran v. Nash, 224 Minn. 571, 29 N.W.2d 436, 438 (1947); Whalley v. Eldridge, 24 Minn. 358, 361 (1877) (“But an action to foreclose is not an action in rem. It is true the action has specific property for its subject or object. S......
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