Whipple v. Barnes

21 Wis. 327

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Cole, 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 the right of action to foreclose the mortgage. Thayer v. Mann, 19 Pick., 535; Jay v. Adams, 26 Me., 330; Baldwin v. Norton, 2 Conn., 161; Richmond v. Aiken, 25 Vt., 324; Borst v. Corey, 15 N. Y., 506.

The action to foreclose is upon an instrument under seal, which acknowledges the debt the payment of which it is given to secure. And it being thus under seal, the equitable remedy upon it is not lost, although an action upon the note may be barred.

By the Court. — The order overruling the demurrer to the complaint, is affirmed.