Minnesota Supreme Court, 1877

Whalley v. Eldridge

Minnesota Supreme Court · Decided December 31, 1877 · Gilfillan

24 Minn. 358; 1877 Minn. LEXIS 153 (Minnesota Reports)

Counsel

T. V. D. Heard, for appellant,, John B. é W. H. Sanborn, for respondent.

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Citation treatment has not been reviewed for this case. The notes below come from the citation graph and the Minnesota Revisor's amendment records, not from a review of how later courts treated this decision.

(as of 9/30/2026)

Last cited by a Minnesota appellate court in 2015, among the opinions in this site’s citation index.

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Cases that cite this one

16 later published cases cite this decision. The 15 that cite it most often are listed here.

Hansen v. Branner (N.D. 1925)
Love v. . West (N.C. 1915)
Colonial & United States Mortgage Co. v. Northwest Thresher Co. (N.D. 1905)
Carson v. Cochran (Minn. 1892)
Bank of New York Mellon v. Keiran (Minn. Ct. App. 2015)
Brinkman v. Bank of America, N.A. (D. Minn. 2012)
In re the Petition of Crablex, Inc. (Minn. Ct. App. 2009)
Eliseuson v. Frayseth (Minn. 1971)
In re Swan's Estate (Utah 1938)
Hendee v. State Tax Commission (Utah 1938)
Hudson v. Upper Michigan Land Co. (Minn. 1925)
Hill v. Townley (Minn. 1891)
Bardwell v. Collins (Minn. 1890)
Foster v. Johnson (Minn. 1890)
Zoll v. Carnahan (Mo. 1884)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

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, e. 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 mechanic’s hen, or for specific performance of a contract to convey. But this does not make them actions in rem.

Such actions belong chiefly to maritime and revenue jurisdictions, and when the court has acquired jurisdiction of the thing its judgment in respect to it is binding' upon all the world. This is not the case in an action to ‘foreclose; for in such action the judgment binds only those who are parties, and affects the property only to the extent of their interest in *362it. The action must be brought against a person as defendant upon a cause of action with respect to the property which exists as to such person, and the court must get jurisdiction of such person before it can render a judgment which will affect him. The necessity of making all persons bound by the lien of the mortgage parties, in order to secure to the-plaintiff all the relief with respect to the property which he is entitled to, brings the action to foreclose within the reason of section 15.

Order affirmed.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.