King v. Meighen

By the Court.

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 ten 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 ten years after the cause of action accrues,” Laws 1870, Chap. 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 this action was commenced, in October, 1870,

In Holton vs. Meighen, 15 Minn. 80, it is said that the right to foreclose and the right to redeem are reciprocal, and the application ’ of this principle in that case is that, as the right *267to foreclose has not expired, the right to redeem remains in existence. In Caufman vs. Sayre, 2 B. Monroe 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 vs. 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 vs. Higgins, 23 Cal. 34; Cunningham vs. Hawkins, 24 Cal. 410; Arrington vs. Liscom, 34 Cal. 372; 2 Hilliard on Mortgages, § 2, et seq. and notes. (See also Lord vs. 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 statute of limitations, the court below very properly determined that the right to redeem was gone also.

To prevent misapprehension it is to be observed that the mortgage in this case, containing no power of sale, could be foreclosed only by action. Gen. Stat. Chap. 81, Sec. 1, et seq. Whether the time, within which plaintiff could have exercised his right of redemption, would have differed from what it now is, if there had been a right of foreclosure by advertisement, is a question not arising in this case, the want of the power of sale being important only as showing that, when defendant’s right to foreclose by .action was gone, his right to foreclose was gone entirely.

Judgment affirmed.

Note. — Chief Justice Ripley, having been of counsel in this case, takes no part in the determination of the same.