Waldo v. Rice

By the Court, Paine, J. The only question in this case is, whether an action to redeem from a mortgage is barred because not brought within ten years from the time the mortgage debt became due, though it was brought within [290] *6U years a^ter moi’tgagee, or those under Rim, took possession. TRis court Ras already Reid tRat tRe statute does not run against tRe rigRt to redeem before tRe mortgagee takes possession. Knowlton vs. Walker, 13 Wis., 264 It would seem also by tRe autRorities, tRat it is not tRe possession merely, but tRe nature of tRat possession, wRicR determines tRe rigRt; and tRat even tRougR tRe mortgagee be still in possession, still if Re admits tRat Re Rolds only as sucR, and does any act unqualifiedly recognizing tRe mortgagor’s rigRt of redemption, tRe statute runs only from tRat date. 2 Hilliard on Mort., chap. 37, sec. 31, et seq.; Robinson vs. Fife, 3 Ohio St. Rep., 561. It was strenuously urged by the appellants’ counsel, that the cause of action accrues in such cases whenever a forfeiture occurs, or in other words, whenever the mortgage debt becomes due; and that it was a direct violation of the language of the statute to allow an action to redeem to be sustained, when not commenced until after the expiration of ten years from that time. TRe mortgagor would certainly Rave no occasion to redeem so long as Re was left in possession and undisturbed by the mortgagee, even if Re Rad the right. But even if, strictly speaking, the cause of action accrues when the debt becomes due, the autRorities seem to Rave fully settled that the statute does not run until possession taken, or so long as the mortgagee expressly recognizes the right of redemption in the mortgagor. TRis result is analogous to the effect given at law to a partial payment or other unqualified admission of a debt, which is Reid to take it out of the statute. And whether or not it is liable technically to the objections urged, we do not feel at liberty to disturb the decisions upon the point. TRe cases of Fullerton vs. Spring, 3 Wis., 667, and Parker vs. Kane, 4 id., 1, not relating to mortgages, cannot be Reid to conflict with or impair the special rule established in respect to them. TRe order overruling the demurrer to the complaint is affirmed, with costs.