Ar.m·:N v. O’DONALD. 27
with them the mortgages to secure their payment. The latter are a
mere incident of the former. The ownership of the notes gives the
plaintiif the right to collect the debt of which they are evidence by a
suit in this court to enforce the lien of the mortgages on the land of
the surety. (3) And this suit was brought within six years from the
last payment of interest on these notes, and is therefore not barred
by lapse of time.
The plaintili is entitled to a decree establishing the amount due on
the notes at $36,417.08, and for the sale of the land belonging to ,
Plume. F. Cross in her life-time, and included in the mortgage, for
the purpose of paying the same; and the case will be referred to a
master of this court to make such sale and application of the proceeds.
NOTE. '
1. Morzroaom AND Norms. A statute may be a bar to a note secured by a mortgage,
and not bar the mortgage itselii Cerney v. Pawlet, (Wis.) 28 N. W. Rep. 183.
Though limitations may run against a. note secured by mortgage after three years, yet .
an act-ion at law will lie on the covenant (if one) contained in the mortgage. at anytime
within 12 years. Earnshaw v. Stewart, (Md.) 2 Atl. Rep. 734.
ln Cheney v. Cooper, (Neb.) 16 N. W. Rep. 471, in delivering the opinion of the court,
Msxwnnr., J., says: "The only remaining question is that of the statuteof limitations;
it being contended that more than five years have elapsed since the notes became due.
In Hale v. Christy, 8 Neb. 264, it was held that an action to foreclose a mortgage could
be brought at any time within ten years from the time the cause of action accrued. As
the statute would run against the notes in five years, it is probable that. after the expi-
ration of that time, the remedy would be against the mortgaged premises alone; but
that question does not arise in this ease." See, to the same effect, Stevenson v. Craig,
(Neb.) 12 N. W. Rep. 1; Gatling v. Lane, (Neb.) 22 N. W. Rep. 453; Hardman v. Mar-
shall. (Neb.) Id. 690.
2. Pam PAYMENT. Part payment of a promissory note, an acknowledgment of its
validity, and a promise to pay it all, made within the time prescribed by the statute of
limitations, take the case out of the statute. Willey v. State, (Ind.) 5 N. E. Rep. 886.
(a) Voluntary Par: Payment. At common lawapart payment madeby one of the joint
makers ofa note Wbllld keep the debt alive as to all, and would be equivalent to a new
promise as to all. Mainzinger v. Mohr, (Mich.) 3 N. W. Rep. 183; Wjiatt v. Hodson, 8
ing. 309.
In most of the states the common-law rule has been changed by statute. Marientbal
v. Mosler, 16 Ohio St. 566; Quimby v. Putnam, 28 Me. 419.
In absence of any statute to the contrary, payment by one joint debtor will remove
the bar ofthe statute of limitations as to all, on the ground that each joint debtor is
the agent of all the rest for making such payment. National Bank of Delavan v. Cot-
ton, (Wis.) 9 N. W. Rep. 926. See Huntington v. Ballou, 2 Lans. 121.
Payment made upon a joint note by one party thereto, in the presence of the other,
wl1o was in fact only a surety. held to take the note out of the statute as to both, in
Mainzinger v. Mohr, (Mich.) 3 N. NV. Rep. 183.
Part payment or a new promise by one oo—surety, under the Michigan statute, will
not operate to keep the obligation alive as to the other surety, who was not pyivy to
it, or in any way participated in it. Probate Judge v. Stevenson, (Mich.) 21 N. . Rep.
348.
Partial payment by one partner, after dissolution of the partnership, will not operate
to take the debt out of the statute of limitations as to another partner. Cronkhite v.
Herrin, 15 Fed. Rep. 888.
l'ayment of interest on a note drawn by a firm, by one of the members, after dissolu-
tion of the iirm, but within six years after the maturity of such note, will renew it as
against the statute of limitations. Merritt v. Day, 38 N. J. Law, 32. See. to same eifect,
Beardsley v. Hall, 36 Conn. 270.
A promise by one partner, after dissolution of the partnership, and before a suit is
barred by the statute of limitations, to pay a partnership debt, does not prevent the run-
ning ofthe statute as to the other partners, a though the creditor was ignorant of the
dissolution. Tate v. Clements, 16 Fla. 339. -
Payment by one of two joint makers, where not partners, does not renew the note as
to the other makers. Shutts v. Fingar, (N. Y.) 3 N. E. Rep. 588.