bringing civil actions on contract for the payment of money and for the foreclosure of mortgages-as well those suspending the running of the statute as those limiting the time for commencing such actions-apply with full force to this action. Brainard v. Cooper, 10 N. Y. 359; Whal- under circumstances which raised the ley v. Eldridge, 24 Minn. 361. presumption that it retained sufficient of The statute of limitations, in all its the purchase money to pay the mortgage provisions, including the sections suspend- debt, which still remained a valid, subsisting its running, applies to all actions ining debt, unaffected by the statute of limiwhich there is necessarily a plaintiff and tations,-by that fact entered into a valid, a defendant, without regard to the charac-implied agreement that the granted premter of the action, or the relief sought, or ises should be used, so far as necessary, to any other circumstance whatever.

Johnson v. Zink, 51 N. Y. 336; Sands v. Church, 6 N. Y. 347; Lartley v. Harrison, 24 N. Y. 170; Freeman v. Auld, 44 N. Y. 50; Knickerbocker L. Ins. Co. v. Nelson, 78 Olcott v. Tioga R. Co. 20 N. Y. 210, 75 N. Y. 137; Bennett v. Bates, 94 N. Y. 354; | Am. Dec. 393; Rathbun v. Northern C. R. Murray v. Marshall, 94 N. Y. 611; Colgrove Co. 50 N. Y. 656; Boardman v. Lake Shore v. Tallman, 67 N. Y. 95, 23 Am. Rep. 90;|& M. S. R. Co. 84 N. Y. 157; Larson v.

Aultman & T. Co. 86 Wis. 281, 39 Am. St. Rep. 893, 56 N. W. 915; Hanchett v. Blair, 41 C. C. A. 76, 100 Fed. 817; Bauserman V. Blunt, 147 U. S. 647, 37 L. ed. 316, 13 Sup. Ct. Rep. 466; State v. Central P. R. Co. 10 Nev. 47; Massurus Bey v. Gadban, 9 Reports, 519; North Missouri R. Co. V. Akers, 4 Kan. 453, 96 Am. Dec. 183; Lane v. National Bank, 6 Kan. 74; Hoggett v. Emerson, 8 Kan. 262; Morrell v. Ingle, 23 Kan. 32; Bauserman v. Charlott, 46 Kan. 482, 26 Pac. 1051; State v. National Acci. Soc. 103 Wis. 208, 79 N. W. 220; 6 Thomp. Corp. §§ 7841, 7900; Rev. Code, § 5121.

within which an action to foreclose a mortgage of real property must be commenced in this state is limited to ten years from the time the cause of action accrued. Rev. Codes 1899, §§ 5199, 5200. If, when a cause of action shall accrue against any person, he shall be out of the state, the statute does not begin to run until his return into the state. Rev. Codes 1899, § 5210.

Appellant first contends that this action is one in rem against the mortgaged property, and hence that the several objections which will be hereafter noticed, urged against the defense of the statute on the

Engerud, J., delivered the opinion of ground that the person against whom the the court:

cause of action accrued was absent from This is an action to foreclose a mortgage the state, have no application. We are upon 160 acres of land situated in Dickey agreed that this is not an action in rem, county. The mortgage was executed on but an action in personam. Our views on May 16, 1883, and recorded on June 11, this subject are fully and clearly expressed 1883. It was given by Fred West, who by Judge Mitchell in Bardwell v. Collins, was then the owner of the land, to secure his note for $335 of even date. became due November 1, 1888.

for its object certain specific real property against which it is sought to enforce the lien of the mortgage, and in that sense it partakes somewhat of the nature of a proceeding in rem, but not differently, or in any other sense, than do actions in ejectment, replevin, for specific performance of a contract to convey, to determine adverse claims to real estate, and the like. The rights and equities of all parties interested in the mortgaged premises are to be adjusted in the action, which proceeds, not against the property, but 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 the due course of common law, like any other ordinary action cognizable in courts of equity or common law." We are all, therefore, of the opinion that the absence from the state of the person against whom the cause of action accrued stays the running of the statute of limitations against an action to foreclose a mortgage, the same as in any other action in personam.

(Bardwell v. Anderson) 44 Minn. 97, 9 L. The note R. A. 152, 20 Am. St. Rep. 547, 46 N. W. No pay-315: "It is not an action in rem, but ments have been made upon it. In the fall an action in personam. It is true, it has of 1887 West moved from the territory of Dakota, and has since been absent from this jurisdiction. In December, 1887, and after leaving the territory, he conveyed the land to E. S. Brown, receiver of the Northwestern Manufacturing & Car Company, a Minnesota corporation. On February 1, 1888, Brown conveyed to the Minnesota Thresher Manufacturing Company, also a Minnesota corporation. Both deeds expressly except the plaintiff's mortgage from the covenants of warranty. On August 7, 1901, the last-named grantee conveyed to R. H. Bronson, who had been appointed receiver for said corporation, and on August 9, 1901, the latter conveyed to the Northwest Thresher Company, a Minnesota corporation, the defendant in the present ac tion. These several corporations had complied with the laws of the territory and state, and were at all times amenable to suit in this jurisdiction. The mortgagor and debtor is not made a party to this action. The only relief sought is a decree for the foreclosure of the mortgage, and the sale of the mortgaged premises to satisfy the debt. The defendant interposed, as its sole defense, the statute of limitations. This defense was overruled by the trial court, and judgment was rendered as The mortgage debt was due November 1, prayed for in the complaint. The defendant has appealed from the judgment, and demands a review of the entire case in this court, under § 5630, Rev. Codes 1899.

The only question involved upon this appeal is whether the statute of limitations is available to this appellant as a defense against the plaintiff's action. The time

1888, and the present cause of action, therefore, accrued not later than November 2, 1888. At that time the mortgaged prem ises were owned by the Minnesota Thresher Company, and such ownership continued until 1901. That company was a foreign corporation, organized and existing under the laws of Minnesota. It was stipulated

to be a fact, however, that said corpora- | in this state, and entitled to the protection tion, during all that time, was doing busi- of the statute of limitations, if it has been ness here; that, during all the time men- regularly engaged in doing business in this tioned, it had a resident agent authorized state, and has had its agent or agents here, to accept service of process, and had in and been amenable to personal service of all respects complied with the laws of the the process of our courts. territory, and subsequently those of the It is urged, however, by respondent, that state, relating to foreign corporations do- the decision in Olcott v. Tioga R. Co. 20 N. ing business here. It was further stipu Y. 210, 75 Am. Dec. 393, is conclusive upon lated to be a fact that the appellant, North- us, because our statute of limitations, inwest Thresher Company, was organized including the provision which now appears as June, 1901, under the laws of Minnesota, § 5210, Rev. Codes 1899, was borrowed from as the successor of the Minnesota Thresher New York, and adopted in this state after Company, for the purpose of taking and the decision in Olcott v. Tioga R. Co. was absorbing the property, assets, and busi- rendered, and hence it must be presumed ness of the old company, and that the that the act was adopted with the internew company has continued to do business pretation placed upon it by the courts of in this jurisdiction, and has complied with the state from which it was borrowed. The all the conditions imposed by law upon rule invoked is a familiar one, often recogforeign corporations doing business in this nized by this court, but we do not think it state. The respondent contends that the has any application in this case. The destatute does not run in favor of a foreign fendant in that case was a Pennsylvania corporation, even though it has been con- corporation, and had not been amenable to tinuously doing business in this state, and process in New York the full six years rethough it could at all times have been per-quired to bar the action. It was asserted sonally served with process within this in its behalf, however, that the provisions jurisdiction. The weight of authority is which excepted from the operation of the against respondent's contention. Huss v. statute persons absent from the state apCentral R. & Bkg. Co. 66 Ala. 472; Law-plied ony to natural persons; and it was rence v. Ballou, 50 Cal. 258; King v. National Min. & Exploring Co. 4 Mont. 1, 1 Pac. 727; Wall v. Chicago & N. W. R. Co. 69 Iowa, 498, 29 N. W. 427; Connecticut Mut. L. Ins. Co. v. Duerson, 28 Gratt. 630: Turcott v. Yazoo & M. Valley R. Co. 101 Tenn. 102, 40 L. R. A. 768, 70 Am. St. Rep. 661, 45 S. W. 1067; St. Paul v. Chicago, M. & St. P. R. Co. 45 Minn. 387, 48 N. W. 17: Pennsylvania Co. v. Sloan, 1 Ill. App. 364; Abell v. Penn Mut. L. Ins. Co. 18 W. Va. 400. The courts of New York, Wisconsin, and Nevada hold that a foreign corporation is incapable of being present in a state other than that under whose laws it exists, and hence, under all circumstances, a foreign corporation is absent from all other states than that of its domicil. Consequently those courts hold that a foreign corporation comes within that provision of the statute of limitations which excepts absentees from its operation. Olcott v. Tioga R. Co. 20 N. Y. 210, 75 Am. Dec. 393; Rathbun v. Northern C. R. Co. 50 N. Y. 656; Larson v. Aultman & T. Co. 86 Wis. 281, 39 Am. St. Rep. 893, 56 N. W. 915; Travelers' Ins. Co. v. Fricke, 99 Wis. 367, 41 L. R. A. 557, 74 N. W. 372. 78 N. W. 407; State v. National Acci. Soc. 103 Wis. 208, 79 N. W. 220; Robinson v. Imperial Silver Min. Co. 5 Nev. 44. In our opinion, the rule adopted by the majority of the courts is the sound one.--that a corporation, although created by the laws of another state, should be deemed to be present

argued, therefore, that a foreign corporation could successfully plead the limitation statute of New York in bar of an action against it in that state, even though it had been beyond the reach of process from the courts of that state the entire six years. The court held that a corporation was a "person" within the meaning of the law, and that, if it had not been subject to the process of the courts of the state, it could not invoke the statute of limitations. Whatever else was said in that case was obiter dicta.

The question whether a corporation can or cannot be present in any state other than that under whose laws it was organized is a question rather of general law than of interpretation of this statute. It is a question we should feel at liberty to decide for ourselves, even if the rule counsel invokes were an inflexible one. We hold, therefore, that the statute of limitations has run in favor of this defendant and its predecessor, the Minnesota Thresher Company, if the latter was the person against whom the cause of action accrued.

This brings us to the question upon which the members of this court are unable to agree. Did the absence from the state of the mortgagor and debtor, West, prevent the running of the statute against this suit to foreclose the mortgage? The courts of Illinois. Texas, Kansas, and Iowa hold that the debtor's absence, even though he has parted with the title to the mort

gaged premises, tolls the statute. In Cali- which it operates, if the defendant elects fornia, Washington, Oregon, Nebraska, to avail himself of the statutory defense by Missouri, New York, and South Carolina, answer. Satterland v. Beal, 12 N. D. 122, the contrary has been held. The majority 95 N. W. 518; Wood, Limitation of Actions, of the court has reached the conclusion § 5; Fowler v. Wood, 78 Hun, 304, 28 N. that the absence of West did not toll the Y. Supp. 976, Affirmed in 150 N. Y. 584, statute. Our attention has been called to 44 N. E. 1124. In Oregon and Nebraska the following cases from Illinois: Emory v. it was held that the absence of the mortKeighan, 94 Ill. 543; Schifferstein v. Alli-gagor did not toll the statute, because the son, 24 Ill. App. 294, 123 Ill. 662, 15 N. E. action to foreclose was an action in rem. 275; Hibernian Bkg. Asso. v. Commercial | Anderson v. Baxter, 4 Or. 105; Peters v. Nat. Bank, 157 Ill. 524, 41 N. E. 919: Dunnells, 5 Neb. 460. We cannot follow Jones v. Foster, 175 Ill. 459, 51 N. E. 862; these cases, because we hold that this action Richey v. Sinclair, 167 Ill. 184, 47 N. E. is not in rem. The decisions from Texas, 364. Analysis will show that none of these Kansas, and Iowa are in point, but, in our cases are authority in this jurisdiction. In opinion, those decisions rest on proposiEmory v. Keighan, Hibernian Bkg. Asso. tions which are as unsound in principle as v. Commercial Nat. Bank, and Jones v. they are opposed to precedent. They lead Foster, the facts were that the owner of the to absurd and unjust results, and thwart equity of redemption had been absent from the object sought to be attained by the the state; and in Schifferstein v. Allison a statute, instead of promoting that object partial payment had been made within the and furthering justice. Cases fairly represtatutory period by the owner of the fee. senting the views of the Texas courts are In Richey v. Sinclair, however, the mort- Ewell v. Daggs, 108 U. S. 143, 27 L. ed. gagor had been absent from the state after 682, 2 Sup. Ct. Rep. 408; Falwell v. he had parted with the title, and it was Hening, 78 Tex. 278, 14 S. W. 613. From held that his absence prevented the statute Kansas may be cited Waterson v. Kirkwood, from running in favor of his grantee. The 17 Kan. 9, and Schmucker v. Sibert, 18 reasoning in the last case cited, as well as Kan. 104, 26 Am. Rep. 765; and from Iowa, in the others from that state, is based upon Clinton County v. Cox, 37 Iowa, 570; two propositions, which will be found most Brown v. Rockhold, 49 Iowa, 282; Robertson clearly set forth in Pollock v. Maison, 41 v. Stuhlmiller, 93 Iowa, 326, 61 N. W. 986; Ill. 516: (1) A mortgage was there re- and Leeds Lumber Co. v. Haworth, 98 garded as a conveyance of an estate in Iowa, 463, 60 Am. St. Rep. 109, 67 N. W. land, defeasible only by the extinguishment 383. of the debt. (2) The statute of limitations was regarded as creating a presumption of payment or release of the debt by lapse of time, and hence the neglect of the creditor to commence an action to recover his debt within the statutory period was presumptive evidence that the debt was extinguished. It followed as a necessary consequence that, if the debt was extinguished, the mortgagee's estate was likewise extinguished, and, conversely, if the debt was not extinguished, the mortgagee's title was not defeated. As to whether the later rulings in Illinois are sound in principle, in view of the changes made by the legislature of that state in the limitation laws since the decision in Pollock v. Maison, we venture no opinion. See, however, Tate v. Hawkins, 81 Ky. 577, 50 Am. Rep. 181. It is manifest that the decisions from Illinois proceed upon a theory that is untenable in this state. Here, under the express provisions of our Civil Code, a mortgage is a mere lien, and conveys no estate in the land. Rev. Codes 1899, § 4699; Halloran v. Holmes, 13 N. D.-, 101 N. W. 310. The statute of limitations of this state does not create presumptions or extinguish obligations. It merely bars the remedy upon

The rule adopted by these several courts seems to have been based upon the same reasons. Those reasons are tersely stated in Clinton County v. Cox, 37 Iowa, 570, as follows: Under the laws of this state a mortgage conveys no interest in or title to lands, but is simply a lien thereon for the purpose of securing the indebtedness which is its foundation. It is an incident -a security in the nature of a lien-of the debt. It survives until the debt be paid or discharged, or the mortgage is released. It is a convoy bearing a lien for the protection of the debt, and as long as that exists it is not relieved of the duty of protection, or rendered ineffective for that purpose. When the debt is discharged, or, by operation of law, may no longer be enforced, its functions terminate, and not before." In that case, as in the others cited, it was held that the absence of the debtor after he had parted with the title prevented the statute from running in favor of his grantee against a suit to foreclose. It is clear that a part payment by the mortgagor after the conveyance would have had the same effect, because, under the rule which these cases announce, any act which prevents the statute from running in favor of

the debtor has the like effect on the mort- | and in Duty v. Graham, 12 Tex. 427, 435, gage, whether the debtor has any interest 436, 62 Am. Dec. 534, that, because the to the mortgaged premises or not.

mortgage is an incident to the debt, thereIt will be observed that the fundamental fore the remedy to enforce the lien was also proposition upon which the reasoning is a mere incident or part of the remedy or based which has led to the conclusions cause of action against the debtor to enreached by the courts of Iowa, Kansas, and force his personal liability. This reasonTexas is this (quoting from Clinton County ing, and the propositions upon which it v. Cox, 37 Iowa, 570): "It [the mortgage] rests, is in direct conflict with the overis an incident of the debt. It whelming weight of authority. Joy v. survives until the debt be paid or dis Adams, 26 Me. 330; Thayer v. Mann, 19 charged, or the mortgage is released. Pick. 535; Richmond v. Aiken, 25 Vt. 324; When the debt is discharged, or, by | Baldwin v. Norton, 2 Conn. 161; Pratt v. operation of law, may no longer be en- Huggins, 29 Barb. 282; Fowler v. Wood, 78 forced, its functions terminate, and not be- Hun, 304, 28 N. Y. Supp. 976; Colton v. fore." The fallacy in this proposition is Depew, 60 N. J. Eq. 454, 83 Am. St. Rep. patent. It is true that the mortgage is a 650, 46 Atl. 728; Demuth v. Old Town mere incident of the debt,-" a convoy bear- Bank, 85 Md. 315, 60 Am. St. Rep. 322, ing a lien for the protection of the debt." 37 Atl. 266; Arthur v. Screven, 39 S. C. It is also true that the extinguishment of 77, 17 S. E. 640; Elkins v. Edwards, 8 Ga. the debt also extinguishes the mortgage. 326; Bizzell v. Nix, 60 Ala. 281, 31 Am. It is not true, however, that, when the per- Rep. 38; Browne v. Browne, 17 Fla. 607, sonal liability for the debt is no longer 35 Am. Rep. 96; Kendall v. Clarke, 90 Ky. enforceable, by reason of the statute of 178, 13 S. W. 583; Tate v. Hawkins, 81 Ky. limitations, the functions of the mortgage 577, 50 Am. Rep. 181; Michigan Ins. Co. v. terminate. It is not true, because the fact Brown, 11 Mich. 265; Wiswell v. Baxter, that the statutory defense is available to 20 Wis. 680; Whipple v. Barnes, 21 Wis. the debtor does not extinguish the debt. 332; Lewis v. Schwenn, 93 Mo. 26, 3 Am. It merely bars the remedy to enforce the St. Rep. 511, 2 S. W. 391; Bush v. White, personal liability, and leaves the debt in ex- 85 Mo. 339; Bank of the Metropolis v. istence. Consequently, so long as the debt Guttschlick, 14 Pet. 19-30, 10 L. ed. 335-is not extinguished, the mortgage exists, 341; Eubanks v. Leveridge, 4 Sawy. 274, and is enforceable until the remedies to en- Fed. Cas. No. 4,544. It has been held that force the lien are also barred by the lapse the two causes of action could not even be of time within which the statutes require joined, in the absence of a statutory prothem to be invoked. The statute of limi- vision to that effect. Michigan Ins. Co. v. tations operates on the remedy only. That Brown, 11 Mich. 265; Borden v. Gilbert, being the effect and operation of the statute, 13 Wis. 670; Stilwell v. Kellogg, 14 Wis. it follows that the remedy against the 461; Cary v. Wheeler, 14 Wis. 281; Faesi v. debtor on his personal liability may be Goetz, 15 Wis. 231; Doan v. Holly, 25 Mo. barred by lapse of time and yet the remedy 357, and 26 Mo. 186. upon the mortgage remain available; and it is likewise. apparent that the converse is true, the remedy for the enforcement of the mortgage may be barred although an action at law against the debtor is still maintain able.

The doctrine established by the foregoing cases is well stated by Judge Deady in Eubanks v. Leveridge. That case was tried in the Federal court in Oregon, and, of course, the decision of the supreme court of Oregon on the question involved was conThe decisions in Kansas, Iowa, and Texas clusive on the Federal court sitting in that are erroneous, because those courts have state. The state court had held that an misapplied the doctrine that a mortgage is action to foreclose was not barred by the a mere incident of the debt it secures. It absence of the mortgagor after he parted is true that, by reason of this relationship with the title, because the action was in of the mortgage to the debt, anything that rem; but Judge Deady reached the same operates to extinguish the latter necessarily conclusions for reasons different from discharges the former, because the incident those of the state court. He said: "But I cannot survive the principal. These courts, apprehend the true doctrine to be that the however, fail to distinguish between the ex-remedy upon the note and mortgage is, like tinguishment of the debt itself and the ab- the transaction itself, twofold. The maksence or loss of a remedy to enforce the personal liability for it. The failure to make the distinction is apparently due to the fact that those courts have assumed, as it was expressly declared in Schmucker v. Sibert, 18 Kan. 104, 109, 26 Am. Rep. 765,

ing and delivery of the note, and the failure to pay the same according to its tenor, gives the holder thereof a right of action against the maker, upon which he can obtain a personal judgment for the sum due thereon. So the execution and delivery of