limitations, and this rule is based on the equitable doctrine already stated. This court has announced the same rule in regard to a pledge, although perhaps never in a case where it was necessary to the decision: See Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 203, 13 L. R. A. 137; Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786; Commercial Sav. Bank v. Hornberger, 140 Cal. 16, 73 Pac. 625. We have no doubt that it is the correct rule in the absence of express provision to the contrary, and that section 2911 of the Civil Code should not be construed as providing to the contrary. To hold otherwise not only implies a legislative intent not shown by the language of the section, but deprives our nunerous decisions as to the rights of a mortgagee of real property of the foundation upon which they are based. If Mutual Life Ins. Co. v. Pacific Fruit Co., 142 Cal. 477, 76 Pac. 67, is to be followed, either the decisions as to a mortgagee in possession must be overruled, or, accepting the doctrine of those cases as established as a rule of property which should not now be changed, we shall have two diametrically opposed constructions of section 2911, one for the mortgagee in possession and the other for the pledgee. 425 We cannot see that property rights can by any possibility be injuriously affected by our now declaring what we are satisfied is the true rule in this matter, and declining to follow. the decision under discussion.

The case of Conway v. Supreme Council, 131 Cal. 437, 63 Pac. 727, is cited in the opinion in Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67, as sustaining the views therein enunciated. The opinion in the Conway case fails to show that the claimants had received or were in possession of the policy, or that they had anything more than a mere equitable lien. The decision goes no further than to hold that in such a case it was essential to the claimant's rights to obtain possession from the beneficiaries of proceeds of the policy, that the lien had not been extinguished by the barring of the principal indebtedness.

In this case, as in Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67, the position of the beneficiary is clearly that of the pledgor or his successor seeking to recover possession of the pledged property from the pledgee without paying the debt for which it was pledged. The money paid into court as proceeds of the policy has merely taken the place of the policy held in possession by the plaintiff, and for all the purposes of this action should be deemed to be in the possession of the plaintiff.

It follows from what we have said that the issue as to the debt being barred at the time of the death of Henry was an immaterial issue in this action, and the failure of the court to find on an immaterial issue would not warrant the granting of a new trial. It also follows that the evidence without conflict showed that plaintiff's "cause of action herein" is not barred.

There was no conflict in the evidence upon the proposition that Henry assigned and delivered the policy to plaintiff in pledge as security for the debt evidenced by the note. The right of the plaintiff to collect from the insurance company the amount of the policy when it fell due, followed as a matter of law: Civ. Code, sec. 3006. A new trial could not, therefore, be granted on the ground of insufficiency of evidence to support the finding as to these matters. There is no other point made in support of the order granting a new trial. It is evident that the new trial was granted by the lower 426 court solely because of the decision of this court in Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67. The order granting a new trial is reversed.

Shaw, J., and Sloss, J., concurred.

BEATTY, C. J. I concur in the judgment, and also in the opinion, except that portion thereof referring to the case of Conway v. Supreme Council, 131 Cal. 437, 63 Pac. 727, which case was again before this court on a second appeal: 137 Cal. 384, 70 Pac. 223. I think the effect of the opinion in this case is to overrule-not only the decision of this court in the Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67, but also the Conway cases.

MCFARLAND, J., HENSHAW, J., and LORIGAN, J. We dissent. In our opinion the law on the point at issue was correctly declared in the case of Mutual Life Ins. Co. v. Pacific Fruit Co., 142 Cal. 477, 76 Pac. 67, and cases cited in the opinion filed in said case.

Rehearing denied.

The Effect of the Bar of the Statute of Limitations against a debt secured by pledge is discussed in the note to Menzel v. Hinton, 95 Am. St. Rep. 662. Where a note is barred by the statute of limitations, no action can be maintained on the mortgage securing it: Bruner v. Martin, 76 Kan. 862, 123 Am. St. Rep. 172.

Am. St. Rep., Vol. 125-6

MCKEE v. DODD.

[152 Cal. 637, 93 Pac. 854.]

LIMITATIONS OF ACTIONS upon Note Executed Without the State. If a note executed in another state is by its terms payable therein, and the maker is a nonresident of this state when the cause of action accrues, the statute commences to run in his favor only when he comes within the state, and if afterward he leaves, the time during which he is absent is not a part of the time within which suit must be commenced. (p. 83.)

LIMITATIONS OF ACTIONS-Place Where Cause of Action is Deemed to have Arisen.-lf a note is made and is payable in a state where the maker resides, and he subsequently removes to another state or country, a cause of action does not arise in the state or country where the default occurs, nor successively in each state or country into which he goes, but does arise in the state wherein the note was made and is payable. (pp. 85, 86.)

LIMITATIONS OF ACTION-Statute Respecting Cause of Action in Another State or Country, Construction of.-A statute relating to a cause of action which has arisen in another state or a foreign country, and providing that an action cannot be maintained thereon if it is barred by the laws of such state or country, does not bar an action in this state on a promissory note which might have been barred according to the laws of some foreign country wherein the debtor may have been or resided after its execution, if it is not barred by the laws of the state wherein the note was executed and was by its terms payable. (pp. 85, 86.)

ESTATES OF DECEDENTS- Ancillary AdministrationDebts Due Citizens of Foreign Countries, Whether can be Recognized. If ancillary administration is had in this state of the estate of a debtor dying in another state or country, the claim of a citizen of a foreign state can be recognized, allowed and enforced, there being no provision in the statute declaring otherwise. (p. 86.)

W. M. Cannon and A. P. Black, for the appellant.

Mullany, Grant & Cushing, for the respondent.

638 HENSHAW, J. This is an action on a claim against the estate of James Dodd, deceased, based upon three promissory notes which were executed in 1891 in New York to plaintiff and payable in that state, plaintiff and the deceased at that time both being residents thereof. All of these notes by their terms became due and payable before the expiration. of the year 1891. Shortly after their execution Dodd left New York and never returned. He was in Europe until May, 1892, and thence came to California, arriving here in June, 1892. He kept a liquor saloon in San Francisco until April, 1893, when he sold out his business and went to Honolulu, H. I. He entered business in Honolulu, resided, and had his domicile there until his death in January, 1900. During the time of his residence in Honolulu he made visits.

to San Francisco, but the total length of his stays in this state aggregated less than two years. He left estate, consisting of real and personal property, in Hawaii and in California. His will was duly admitted to probate in Honolulu and ancillary administration was had in the superior court of the city and county of San Francisco. Such property as he left in this state is here in 639 process of administration. McKee, the plaintiff, continued to reside in New York. He presented the notes for payment to the executrix as a claim against the estate in California, which claim was allowed by her. The court refused its allowance, whereupon this action was commenced. It was known to plaintiff that Dodd was residing in Honolulu.

The court awarded judgment to plaintiff upon his claim and defendant appeals, presenting three contentions:

1. Appellant urges that the notes are barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure, by which section an action upon a contract founded upon an instrument in writing executed out of the state must be commenced in this state within two years. Section 351 of the Code of Civil Procedure in this connection declares that, "If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not a part of the time limited for the commencement of the action." Appellant rules upon the case of Palmer v. Shaw, 16 Cal. 93, as supporting her contention that when Dodd came to the state the cause of action against him here arose, that the statute of limitations then began to run, and that his subsequent departure from the state did not stay this running; but in Palmer v. Shaw, not only was the court's attention not directed to this proposition, but in fact the defendant had been in the state more than two full years before the action was brought, whereas the deceased in this case had been in the state, aggregating all of his visits, less than five hundred days. The rule is to the contrary of appellant's contention and has been expressly so decided in Dougall v. Schulenberg, 101 Cal. 154, 35 Pac. 635. That case is the exact parallel of this as to the leading question involved, and it is there declared that where a note sued upon was in express terms payable out of the state, and the payers were nonresidents of the state when the cause of action accrued, the statute only commenced to run in their favor when they came to this state, and if afterward they left

the state, the time during which they were so absent would not be a part of the time within which the suit must be commenced. It follows herefrom that plaintiff's cause of action was not 640 barred by subdivision 1 of section 339 and section 351 of the Code of Civil Procedure.

2. Appellant next contends that the cause of action was barred by section 361 of the Code of Civil Procedure. This section is as follows: "When a cause of action has arisen in another state, or in a foreign country; and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued.” In support of appellant's position under this section it was established in evidence that under the laws of Hawaii an action for the recovery of any debt founded upon any contract, obligation or liability, where the cause of action has arisen in any foreign country, must be commenced within four years after the cause of action accrues. Appellant's reasoning and argument is this: That a cause of action "arose" against the deceased in Hawaii upon his arrival there after the maturity of the notes; that for failure to prosecute, the right of action became barred by the statute of limitations of Hawaii; that thus is presented a case under our section 361 where by the laws of a foreign country an action cannot be maintained upon a contract by reason of lapse of time, wherefore no action is maintainable against such person or his estate in this jurisdiction. It is at once apparent, then, that the crux of this matter is to be found in the true interpretation to be given to the phrase "when a cause of action has arisen." Appellant contends that the contends that the cause of action "arose" simultaneously in New York state at the time the promissory notes became due and payable, and also in Europe where at that moment deceased chanced to be; that subsequently the cause of action arose successively in every country through which he passed and arose finally in Hawaii upon his arrival there. If this be the true construction of the statute, then admittedly plaintiff's cause of action is barred. It may at once be conceded that the courts have experienced difficulties in construing statutes of limitations similar in their terms to our section 361. Appellant cites many cases under her contention that the weight of authority is with her. It would not be profitable to analyze these anthorities to show in individual instances where the ruling of