Whipple v. Barnes
Wisconsin Supreme Court
APPEAL from the Circuit Court for Racine County. Action commenced in 1866, upon a mortgage executed by Barnes and wife in 1851, “ conditioned for' the payment of the sum and interest mentioned in ” a note of the same date for $700, payable in one year from date. Demurrer, on the ground that the alleged cause of action appears from the complaint not to have accrued within six years. The defendants appealed from an order overruling the demurrer.
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APPEAL from the Circuit Court for Racine County. Action commenced in 1866, upon a mortgage executed by Barnes and wife in 1851, “ conditioned for' the payment of the sum and interest mentioned in ” a note of the same date for $700, payable in one year from date. Demurrer, on the ground that the alleged cause of action appears from the complaint not to have accrued within six years. The defendants appealed from an order overruling the demurrer. The mortgage was only a security for the payment of the debt according to the terms of the note. 9 Wis., 476-7, 511; 3 Chand., 83, 95. In other words,…
1Opinion of the CourtCole, J.
In Wiswell v. Baxter, 20 Wis., 680, it was decided, that although a suit upon a promissory note which is secured by a mortgage, may be barred by the statute of limitations, yet an action may still be maintained to foreclose the mortgage. The six years’ limitation does not -bar the remedy upon the mortgage, but the mortgagee may foreclose and sell the mortgaged property. It was suggested on the argument, by the counsel for the appellants, that this should only be done where the mortgage contains an express covenant to pay the debt. The cases, however, do not establish any such limitation upon…
2Cases cited3 opinions
- Wiswell v. BaxterWisconsin Supreme Court · 1866
- Richmond v. AikenSupreme Court of Vermont · 1853
- Baldwin v. NortonSupreme Court of Connecticut · 1817
3Cited by5 opinions
- Duecker v. GoeresWisconsin Supreme Court · 1899
- Ogden v. BradshawWisconsin Supreme Court · 1915
- Omaha Savings Bank v. SimeralNebraska Supreme Court · 1901
- Bank of N.Y. Mellon v. KlomstenCourt of Appeals of Wisconsin · 2018
- Wells v. ScanlanWisconsin Supreme Court · 1905