Peters v. Dunnells

Maxwell, J. This is an action to foreclose a mortgage on certain real estate in Sarpy county. The note was due and payable August 31, 1859. The petition, in addition to the usual averments in an action of foreclosure, alleges that the defendant before the maturity of the note removed from the state and has continued to reside out of the state ever since. The defendant demurred to the petition on the ground the the facts stated therein were not sufficient to constitute a cause of action. The demurrer was overruled by the court. The defendant then answered the petition alleging among other grounds of defense, that the cause of action did not accrue within ten years next before the commencement of the action. Testimony was taken and a decree rendered in favor of the plaintiff. The defendant appeals to this court. The principle is well settled under our code that where it appears on the face of the petition that the cause of action arose at such a period that under the statute of limitations no action can be brought, the defendant may demur to the petition on the ground that it does not state facts sufficient to constitute a cause of action. Section ten of the code of civil procedure provides that “an action shall be commenced within five years upon a specialty, or any agreement, contract, or promise in writing.” The proviso to section seventeen, which took effect Sep465 .Aember 1, 1866, is “that the absence from the state, death, or other disability of a non-resident, save the cases mentioned in this section, shall not operate to extend the period within which actions in rem shall be commenced by of against such non-resident and his representatives.” . What is an action in rem? In Woodruff v. Taylor, 20 Vt., 65, the Supreme Court of Yermont say: “Theobject and purpose of a proceeding purely in rem is to ascertain the right of every possible claimant; and it is instituted on an allegation, that the title of the former owner, whoever he may be, has become divested, and notice of the proceeding is given to the whole world to appear and make claim to it. From the nature of the ease the notice is constructive only as to the greater part of the world.” “But beside these, there is another class of cases, which may, perhaps, to some extent, be considered as proceedings in rem, though in form they are proceedings inter partes. An attachment of property in this state, where the court has jurisdiction of the property, but not of the person of the defendant, and a sale of it (or a levy upon it if it be real estate), on execution, is in the nature of a proceeding in rem.” The payment of a debt in obedience to the order of the court which issued the attachment, will protect the garnishee, not only against the defendant, but against third persons claiming under him, by an assignment made after notice was served on the garnishee. While proceedings in rem appear originally in England to have been restricted to cases arising in the spiritual, admiralty, or prize courts, such as' those relating to the revenue, condemnations of captured property, divorce and alimony, and probate of wills and letters of administration, it will not be contended that such restrictions prevail at the present time. In this country the courts have generally held proceedings in rem to include proceedings by creditors against the property of [466] their debtors. “ In such cases, for all tbe pxxrposes oi> the suit, the existence of the property so seized or attached within the territory, constitutes a just ground of proceeding to enforce the rights of the plaintiff to the extent of subjecting such property to execution upon the decree or judgment. But if the defendant has never appeared and contested the suit, it is to be treated to all intents and purposes as a mere proceeding in rem, and not as personally binding on the party as a decree or judgment in personam/ or in other woi’ds, it only binds the property seized or attached to the extent thereof.” Story’s Conflict of Laws, Sec 549; Andrews v. Herriot, 4 Cowen, 520, note; Holmes v. Rawson, 20 Johns., 229; McDaniel v. Hughes, 3 East., 336. This action, so far as it is sought to subject the mortgaged property to the payment of the debt, is clearly a proceeding in rem, and more than five yeai’s having elapsed after the law took effect, before the commencement of the suit, the action is barred by the statute of limitations. In Kyger v. Ryley, 2 Neb., 20, this court held that if a recovery upon a note secured by mortgage, is barred by the statute of limitations, an action for foreclosure of the mortgage is also barred; the demurrer to the petition, therefore, should have been sustained. The judgment of the district court is reversed and the caxxse remanded for further proceedings. Reversed and remanded.