Colonial & United States Mortgage Co. v. Flemington
North Dakota Supreme Court
Appeal from District Court, Dickey county; Lauder, J. Action by the Colonial & United States Mortgage Company, Limited, against Alex. D. Flemington and George Schaller. Judgment for defendants, and plaintiff appeals. If mortgagor dies before the cause of action accrues, the statute of limitations will not begin to run against the debt before the appointment of an administrator, as, until that time, there is no one to be sued and the cause of action cannot accrue.
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Appeal from District Court, Dickey county; Lauder, J. Action by the Colonial & United States Mortgage Company, Limited, against Alex. D. Flemington and George Schaller. Judgment for defendants, and plaintiff appeals. If mortgagor dies before the cause of action accrues, the statute of limitations will not begin to run against the debt before the appointment of an administrator, as, until that time, there is no one to be sued and the cause of action cannot accrue. Etter v. Finn, 12 Ark. 632; Hobart v. Turnpike Co., 15 Conn. 145; Andrews v. R. R, Co., 34 Conn. 57; Conyers v. Kennon, 1 Ga. 379;…
1DissentYoung, J.
In my opinion, this action is not barred. The action is in personam. We are agreed that the provisions of the statute which suspend the running of the statute of limitations upon the death or absence of the person against whom the cause of action accrued apply with the same force and effect to actions to foreclose a real estate mortgage as to1 -other personal actions. The mortgagor’s note was due November 1, 1888. Had he been alive and residing in the state upon that date, and defaulted in paying the note, a cause of action would have accrued against ’him, and the statute would have commenced…
2Cases cited17 opinions
- Bauserman v. BluntSupreme Court of the United States · 1893
- Sanford v. . SanfordNew York Court of Appeals · 1875
- Colonial & United States Mortgage Co. v. Northwest Thresher Co.North Dakota Supreme Court · 1905
- Bauserman v. CharlottSupreme Court of Kansas · 1891
- Kulp v. KulpSupreme Court of Kansas · 1893
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