Froelich v. Swafford

144 N.W. 925, 33 S.D. 142, 1914 S.D. LEXIS 6

• Court: South Dakota Supreme Court
• Decided: January 12, 1914
• Status: Published

Opinion

SMITH, J.

In the view we take of this case, the facts essential -to 'the determination oif the appeal may be briefly stated. On February i, 1888, Edward 'Galkins and his wife executed a mortgage upon a quarter section of land in Kingsbury County, to the .Showalter Mortgage 'Company, securing an indebtedness of $575, which was recorded March 5, 1888, and was payable February, 1893. This mortgage was assigned to one Blaisdell, February 9, 1891, and the assignment recorded February 17, 1891. On May 15, 1891, the original mortgage was recorded in the register of -deeds office, (together with an assignment indorsed on the back of the mortgage with the name of Ruth A. Parks therein as assignee, which -assignment was dated- March 21, 1888. This purported assignment was not acknowledged so as 'to entitle it to record. Subsequently, on June 16, 1888, Calkins and his wife executed a m-ortgag on th-e same land to- J. -and G. W. Froelich, securing an indebtedness of $1,400, which was recorded July 28, 1888. This mortgage was a sealed instrument, and contained therein a direct promise to pay said indebtedness, and recited that it was subject to- the Showalter -mortgage. This action is to foreclose the latter mortgage, and to redeem -from the Showalter mortgage. The trial court found $850 of die indebtedness secured by the Froelich mortgage, with interest thereon, remained due and unpaid at the commencement of this action, and that prior to the beginning of this action J. Froelich assigned his interest in -said mortgage to G. W. •Froelich, the .plaintiff. In December, 1892, Ruth A. Parks-, as -assignee -of the Showalter mortgage, commenced an action of foreclosure; the only -defendants in- such action being th-e- mortgagors-, Edward and Luana Ca-lkins, upon whom -personal service was made. On February 16, 1893-, a decree of foreclosure was -entered in chis action. The property was sold under s-aid -decree, and a sheriff’s certificate of sale issued to Ruth A. Parks, bearing date of March 31, 1893, which was recorded May 23, 1893. On April 22, 1898, a sheriff’s deed on this .certificate -of sale was issued to- Ruth A. .Parks, and recorded in the-register of deed’s office the same -day. The defendant Swafford claims ownership- of the land through a warranty deed executed by Ru-t-h A. Parks and her husband, and divers mesne conveyances by warranty deed vesting the title of Ruth A. Parks in himself. On October 15, 1908, .plaintiff began this action to foreclose the Froelich mortgage, and to redeem from the prior mortgage, claiming such right as junior mortgagee, and demanding an accounting for rents and profits during the intervening years, and that same be offset against the amount due on the first mortgage. All interested parties are made parties to this action, and all have defaulted except Swafford, who alone defends, and is respondent here. The defendant Swafford alleges that Ruth A. Parks was the owner of the Showaiter mortgage at the time of her alleged foreclosure, alleges that plaintiff’s action is barred 'by statutes of limitation and .pleads that plaintiff is estopped by laches to foreclose his mortgage, or to redeem from the Showaiter mortgage.

[1-3] We shall first consider appellant’s contenitioto that his right of redemption is not barred because defendant Ruth A. Parks did not become the lawful assignee and owner of the Show-waiter mortgage, and that her foreclosure proceedings are, for that reason, void and ineffective to bar plaintiff’s right to redeem. This contention we think wholly immaterial, so 'far as the right of redemption is concerned, for the reason that the foreclosure proceedings whether conducted in the name of Blaisdell or in the name of Ruth A. Parks., could not in any manner affect plaintiff’s' right to redeem, so long as he was not made a party to. the foreclosure proceedings. This right could only be barred by' the 10-year statute ■of limitations, and not by the one-year period prescribed for redemption upon foreclosure. But a 'determination of 'the question whether Ruth A. Parks must be held to be the owner of the Showalter mortgage at the time of her foreclosure becomes necessary, as will be apparent later, for the reason that Swafford’s rights and obligations as holder of the legal title of 'Calkin®, through the foreclosure, become very material to a proper consideration of the rights ■of all the other parties to the action. We think appellant’s contention that Ruth A. Paries was not the oiwner of the Showaiter mortgage -cannot prevail upon the record before -us. He seeks to raise the question in two ways: (1) By an objection to' the introduction of the assignment itself at the trial; and (2) by an assignment that the evidence is insufficient to- sustain the finding of the trial court that Ruth A. Parks became owner of the Showaiter mortgage by an assignment. The objection offered to the introduction of -the assignment in evidence was not that there was no proof of the execution of the assignment by the Showaiter Company, but was to the effect that the assignment itself was inoperative because of the assignment to Blaisdell, In the absence of a proper objection as to proof of execution, the assignment was properly received in evidence1 for whatever it was worth. The assignment to Paries purported to have been executed long before 'the assignment to Blaisdell or its record in .the register of deeds office. If it was so executed, the title, to the Showal-ter mortgage was in fact veslted in Parks before the execution of the assignment to' Blaisdell, and any superior title in Blaisdell must rest wholly upon the recording statute. 'Conceding the right of this plaintiff to assert the claim of Blaisdell, under ¡his assignment, which we do not decide, it would be necessary for plaintiff to prove the same facts which it would be incumbent upon Blaisdell to establish were Blaisdell -himself asserting his right under- the recording- statute. The burden- of proof rests upon the later assignee to bring himself within the protection of the recording statute by proof that he was in fact an assignee- in good faith and for value, and the same ■burden must be held to rest upon appellant in this case.

It was never the purpose of our recording statutes to protect persons who take transfers or assignments with actu'al notice of prior transfers or assignments, or who take transfers or assignments without valuable consideration. The statutes protect only persons therein described and intended to' be protected, and, when its protection is sought, the person seeking it must assert and prove .every fact essential to bring him within the class described in .the statute. He must assert and prove, not only that he placed his assignment of record first, but that he parted with value -therefor, and purchased in "good faith” — that is that fee had ho actual notice of prior transfers, assignments, or equities. Each of ¡these facts is as essential as the other. Proof that his assignment was first recorded, and that he paid value, is not enough. . ITe must allege and show affirmatively that .his purchase was made in “good faith,” and, even though the written assignment be held to import a Valuable consideration, it does not import and cannot be held evidence of the fact that -the transaction was in “good faith,” or without notice. That fact must he shown aliunde the instrument itself. The recording statute does not and is not intended to establish a rule of evidence, but only to confer a substantive right. The effect of the statute is to change the old equity rule that, of two innocent purchasers, the transfer prior in point of time should prevail. Under the recording act, the rule is that, of two innocent purchasers, the one whose transfer is first recorded acquires the prior substantive right, but, as a condition to being given this priority of right, the subsequent assignee must assume the burden of showing that he paid a valuable -consideration for the transfer, and that when he -took the transfer, he had no knowledge that his .grantor had previously ¡parted with his interests to an earlier grantee. The theory of the statute is that the prior grantee loses his (prior right in equity -by reason of his negligence in failing' to- promptly record his transfer. We are aware there are 'decisions- holding that a deed reciting a valuable consideration' is prima facie evidence of good faith. Many of these -cases merely follow a -dictum in Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62. We do not consider that case decisive of the point under -discussion. No> iss-ue of good faith was involved or discussed in that case. The court, -ho-wever, said: “But a subsequent grantee, to entitle himself to the benefit of the statute, must not -only buy without notice, and put his deed first on record, but "he must als-o -purchase for a valuable consideration.” The proof of consideration was the issue in that case and not good faith. The sufficiency of the evidence to prove good faith was not challenged, and its sufficiency was assumed by the court in its discussion of the. matter really involved- — -tire consideration. An ex-aminiatioin of the record discloses not -one scintilla of evidence tending to show that Blaisdell was an assignee in good faith or without notice of the Parks assignment.

Appellant’s contention that the assignment to- Blaisdell must be held to defeat the rights of Ruth A. Parks under her assignment cannot he sstained, and the trial -court was justified in holding that Ruth A. Parks .became the owner -o-f the Showalter mortgage. The written evidence of this -assignment having been properly received was sufficient to sustain the finding of the trial court, and the assignment of insufficiency of evidence -cannot be sustained.

[4-6] It may be further observed that Swafford and Blaisdell were made defendants in- this- -action, to the end that their conflicting claims to the -redemption fund might also be adjudicated. Each ao-uld and was bound- to assert his right to such fund, and, unless asserted, the right would be forever barred by judgmenit. Bl'aisdell h'as made default, and his right as against Swafford must be held to be barred. The property was sold at foreclosure sale on March 31, 1893. The mortgagor, Edward Calk-ins, died April 24, 1894. The redemption right of both Calkins and 'his wife, parties to the foreclosure action, was barred by the year of redemption before his death, and his minor heirs, therefore, did not succeed to any right of redemption. Ruth A. Barks and her grantees down to Swafford, having parted with all their interest in the property, -cannot claim the redemption fund. Swafford alone is in a position to make such a claim.

[7-8] Appellant’s contention reduced to its simplest form is that because his mortgage is a sealed instrument, and as such is only barred by the 20-year statute of limitations, his right to foreclose -his mortgage and to redeem, likewise, remains for 20 years. Appellant claims that the right of the junior lien-holder to redeem from a prior lien is- not by virtue of mere grace, or favor, or equity, but that it-rests wholly upon the statute, and is molt a matter of relief, which may be 'allowed or -disallowed in the discretion of itbe court, -and that it is as absolutely fixed and certain as ■his right to ■foreclose his mortgage. He founds his -right to redeem upon the language -of the Code, which says in substance that one who has a lien inferior to' another, upon the same -property, has a right to redeem from the prior Hen at .any time after .the claim is due, and before his right of redemption is foreclosed. Civ. Code, §§2034, 2035. These sections of the Oivil 'Code fix the time when the right of redemption accrues. The right of the junior lienholder to redeem becomes complete and -perfeat the very instant the senior lien becomes due and payable, and may be -enforced in an equity suit. Wien there has been a foreclosure -of a senior mortgage by publication, or by action 1» -which the junior mortgagee has been made a party, the junior mortgagee may redeem by payment -of the amount for -which the property was been bid in, at the sale, even though that amount be less than the amount of the senior mortgage. This is made entirely clear by the provisions of sections 375, 376, 646, of the Code of Civil B'roce-dure relating -to redemptions. When a junior lienholder has' been made a party to- a foreclosure, his right to- redeem- from the mortgage sale is limited- to one year by the statute itself. On the contrary, the junior mortgagee -or lienholder not made a party to action to foreclose tire senior mortgage or lien is not permitted to redeem from the sale, but must redeem by paying the entire amount of ¡the senior mortgage or lien, regardless o'f libe amount for which the property was sold at the sale. In Martin v. Fridley, 23 Minn. 16, the court said: “It seems well .established by the authorities that one who is not botad by a foreclosure cannot redeem from the sale, but that he -must redeem-, if he has a right of redemption, from the entire mortgage by paying the whole amount of it.” In Collins v. Riggs, 14 Wall, 491, 20 L. Ed. 723, it_was said: “The party offering 'to redeem proceeds upon the hypothesis that, as to him, the mortgage has never been foreclosed and is still in existence. Therefore 'he can, only lift it by paying it.’’ Douglas v. Bishop, 27 Iowa, 214; Knowles v. Rablin, 20 Iowa, 101; Sp-urgin v. Adamson, 62 Iowa, 661, 18 N. W. 293; Johnson v. Harmon, 19 Iowa, 56; Gage v. Brewster, 31 N. Y. 218; Vroom v. Ditmas, 4 Paige (N. Y.) 526; Benedict v. Gilman, 4 Paige (N. Y.) 58 — are cases sustaining these views.

The right of redemption can never be -deemed to- have been “foreclosed” except where (the party possessing the right to redera has been made a party to- foreclosure proceedings. It is only in this sense that the word “foreclosed” is used in section 2034 of the Civil Code. It is evident, therefore, that the right to. redeem cann-cit be deemed lost or barred by the foreclosure proceeding itself, but is lost by the failure to redeem from the foreclosure sale within- the -one-year 'limitation prescribed by the statutes - relating to- redemption. When the year -has- expired without redemption, the right to- redeem may be said to 'be “foreclosed';” but the exact fact is that the right 'of redemption is' barred by the one year limitation. As is apparent from the decisions above -cited, the junior lienholder not made a party to the foreclosure-proceedings Cannot redeem' from' the foreclosure salfe, and therefore is not barred by the one-year limitation in the redemption-statute. In California, prior to the enactment of section 2903 of-their Civil Code, -identical with- 2034 -of ou-r Civil Code, and -prior to the enactment of section 346 ’of the -California Civil Code, which bars the right of redemption -after five years’ adverse possession as' therein defined, it was held that the right of redemption was a pure equitable right, the creation of courts of chancery, and that the chancery courts would by analogy apply, in a redemption action, the same period of limitation which would bar an action to foreclose the junior lien. That court, however, in the case of Hall v. Arnott, 80 Cal. 348, 22 Pac. 200, uses language which might be 'construed' as holding that the enactment of section 2903 of their Civil Code (section 2034 of our Civil Code) changed the former equity rule, and continued the right of redemption, regardless of any statute of limitations against the junior obligation. If this is what 'the California court meant, it would seem that the senior incumbrancer could not plead any statute of limitations whatever, in bar of the right of the junior incumbrancer to redeem, except the 6-month, limitation in the California redemption 'statute, and that, of course, only where the junior lienhalder had been made a party to the foreclosure of the senior lieu. .Appellant, however, apparently does not contend for so broad an interpretation of the statute as that which seems suggested by the language used in the Hall Case. Has contention is that, because the junior mortgage is a sealed instrument, and 'barred only by the 20-yea.v statute of limitations;»-his right of redemption -0011 only be barred by the 20-year statute, apparently attempting to apply the old equity rule. It is plain, however, that Hall v. Arnott does not sustain this contention. At the utmost, that decision is authority -only for the proposition that, under the section of our Civil Code referred to-, the right of redemption can only be' terminated by foreclosure proceedings to which the junior lienholder is party, and the expiration of the one-year period of redemption- in the redemption statutes. Appellant’s contention, however, apparently rests wholly upon the view that, because the junior lien is not barred, the action of redemption is not barred. His argument is that the right to foreclose and right to- redeem rest upon the same instrument,to-wit., the junior mortgage, and therefore the same statute of limitations is applicable to both. It is very evident that the decision in Hall v. Arnott does not -sustain this contention, because the court in that case says, in speaking of the running of the statute of limitations -against the junior ob^ ligation: “This conclusion renders it unnecessary to consider whether the indebtedness secured -by the -i-nstirument in question was barred or not at the commencement of this aotio-n” — plainly implying that statutes- o-f limitations were -considered entirely immaterial as affecting the right o-f redemption:

The right of redemption rests upon the junior mortgage only to the extent, an-d -in the sense, that the lien of the junior mortgage must be an existing lien, and that the amo-unt necessary to redeem is fixed by th-e amount due on the prior .mortgage, -or by the amount of the sale where the junior lienholder'is made a party to foreclosure proceedings. In all other respects the right to- redeem is entirely independent of the right to fore'c-loise the mortgage. The right to- foreclose the mortgage arises -by reason of -default in payment of the sum secured thereby, or in some other condition therein contained. The right to redeem rests up-o-n the statute, or upon -principles of equity where there is no statute. One is of no higher character than the other. Each right is -clearly defined — the -one by the prior mortgage; the -other .by the statute itself, -or by the rules of equity. It is also- held that, where the junior mortgagee is not made a party, to the proceeding's for foreclosure of the prior mortgage, and the right -of redemption -still remains, the junior mortgagee may maintain a suit to foreclose, and may sell the mortgaged premises to -pay both' mortgage debts, without first redeeming or offering to redeem- froth the senior mortgage. Catterlin v. Armstrong, 101 Ind. 258; McK-ennan v. Neff, 43 Ind. 503; Coleman v. Witherspoon, 76 Ind. 285; De La-shmutt v. Sellwood, 10 Or. 326; Memphis R. Co. v. State, 37 Ark. 632; Anson v. Anson, 20 Iowa, 55, 89 Am. Dec., 514; Atwater v West, 28 N. J. Eq. 361; Chilver v. Weston, 27 N. J. Eq. 435; Turner v. Phelps, 46 Tex. 251; Murphy v. Farwell, 9 Wis. 102; McDonald v. Miller, 90 Tex. 309, 39 S. W. 89. These decisions broadly illustrate the distinction between the rigid of redemption as it exists in a junior mortgagee who has been made party in prior foreclosure proceeding's and in one not made a party to such proceedings.

There are many cases which hold that, when the junior lien-holder . has not -been made a party to the foreclosure action, the al-d equity right -of redemption remains entirely independent of the statute which prescribes a shorter .period of redemption after foreclosure. This line of -decisions, -may perhaps furnish ground for appellant’s contention that the same limitation applies- to b-oth the foreclosure and the -redemption- action. The case of Hall v. Arnottc, 80 Cal. 348, 22 Pac. 200, relied upon by appellant, however, goes mudi farther, and hold's that -section 2903 -of the California Civil Code abolishes -the old' equity -rule, which by analogy applied the period of limitation for foreclosure of the junior lien to- the redemption action, and in fact that case seems- to hold that foreclosure by action to which the junior lienholder is -made party is the only mode in which the -right of 'redemption can be terminated or -barred, except, 'perhaps, by adverse possession under section 346 o-f the California -Code of 'Civil Procedure.

Section 343, California Code of 'Civil Procedure, provides that: “An action -for relief not -hereinbefore provided for must be commenced within four years after the -cause of action shall -have -accrued.” This section is- identical with section 66 of our Code of 'Civil Procedure, except that the limitation in our Code is ten instead of -four years. In Lux v. Haggan, 69 Cal. 269, 4 Pac. 919, 10 Pac. 674, the court held that section 343, Code Civ. Proc. Cal., above quoted -applied to- suits in equity as well as- at law, and this bolding was affirmed by that court in Dore v. Thornburg, 90 Cal. 64, 27 Pac. 30, 25 Am. St. Rep. 100. Why this period -o-f limitation was not applied- in Hall v. Arnott, supra, we are unable to understand', unless it be -that section 346 of the California Code of Civil Procedure was construed as a s-peddl statute of limitations in redemption- actions, and -removed -the redemption action from the -operation of the 4-year limitation statute. In this state, however, we have no statute corresponding to section 346 of the California Co-de of Civil Procedure', and it would seem- plain,, therefore, under -the California -decisions- which, -hold the 4-year statute o-f limitation- applicable to equity actions, that the 10-year period of limitation should alp-ply in thi-s state to all action-s, legal as well as equitable, -where no other period--of limitation- is prescribed, and that the exception implied -by the 'California court in Hall v. Arnott as to redemption actions does not exist in this state. It .would seem- .perfectly plain, afeo, that, where the Legislature has enacted a io-yea-r -statute o-f limitations applicable to redemption actions, the statute must be deemed to---have abolished the old -equity rule which by analogy applied- the same limitation to- the redemption- action th-at -was -applicable in the action for foreclosure o-f the junior lien; We 'are constrained, therefore, to hold that sections 2034, 2035, our Civil -Code, so far as the same relate to- the period of redemption, are applicable only in cases, where the junior lienholder is made party to foreclosure of the senior lien, and -that, where the junior lienholder is not made party to such proceedings, the right of redemption remains until barred by the io-year statute of limitations. This court so held in Houts v. Hoyne, 14 S. D. 176, 84 N. W. 773; Houts v. Bartle, 14 S. D. 322, 85 N. W. 591; Walters v. Bernard, 14 S. D. 221, 85 N. W. 1135; Houts v. Olson, 14 S. D. 475, 85 N, W. 1015; Am. Banking & Trust Co. v. Lynch, 10 S. D. 410, 73 N. W. 908; Id., 12 S. D. 204, 80 N. W. 1134 — which decisions were followed in Nash v. N. W. Land Co., 15 N. D. 566, 108 N. W. 792.

Appellant further contends,- however, that, even if the 10-3'ear statute of limitation is applicable -to the redemption ' relief asked in this action, its bar had not fallen when this suit was commenced.

[9] His first contention appears to be that the cause of action accrued either at the date of the taking possession of the premises by Ruth A. Parks, under her foreclosure, dr at the date of the sheriff’s certificate of sale, or the date of -the issuance of the sheriff’s deed, and that the action was begun within 10 years from either date. • In this contention, ■ appellant is clearly wrong. The right to redeem and to maintain an action for redemption accrued at the date of the maturity of the senior mortgage, and it is clear that more than ten years intervened between that date and the commencement of this: action.

Appellant’s second contention, is that the defendant Ruth A. Parks and her1 successors in interest, excepting thje defendant Swafford, were non-residents o,f the state'during some portion of the 10-year period of limitation, and that the statute therefore was tolled as to this plaintiff’s right of action. This contention is founded upon the assumption that an action -to foreclose a mortgage or to redeem from a prior mortgage, or both, is .an action in personam.

The trial court .found -that on the fifteenth day of April, 1904, the defendant C. G. Swafford, through a chain- of conveyances, became the owner of all the right, title, interest, and estate of Ruth’ A. Parks vested in her by her foreclosure proceedings. This is not 'Controverted by appellant. Parks, the grantee under th& foreclosure proceedings, and every subsequent grantee of the interest acquired by her 'by foreclose sale, down to- 'and including the defendant Swafford, are made parties defendant in the present action. Every one of said defendants claiming any right -to redemption through ithe senior mortgage or its foreclosure, or to the redemption fund, had the right, and in law was 'bound to assert his right, to the redemption fund, should the plaintiff be found entitled to redeem. But all of the defendants- have made default, and 'have failed 'to assert -any right whatever, except the defendant Swafford, -w'ho claims him-self to be the owner of -every right acquired through the foreclosure proceedings. It follows, therefore, that every -adverse right -or -claim -of each and all of the defaulting defendants, either as against the plaintiff, Eroelich, or as against their -co-defendant Swafford, is cut off and barred by such default, and the only conflicting rights remaining to- be 'adjudicated in this action are those between the plaintiff and defendant Swafford.

We therefore have only to further consider the rights- of Swafford 'as -affected by the io-year statute of limitations and estoppel by laches.

[10] It is appellant’s -contention that the io-year statute of ■limitations cannot bar the rights of the 'heirs- of Edward Calkins, deceased, for the reasons first, tlia-t -they were minors- at the time of 'his -death, and, -second, that they became non-resident's of the st-ate, and their absence tolled the statute. As we have seen, neither the minority of these heirs n-or their -absence from- -the state is material- in this action, f-o-r the reason th-at they never became vested with the right of redemption, and are -not necessary defendants in the action. The right of -the wife to- redeemi was-lost before her removal from -the state. Only tho-se possessing a -present right or claim to the redemption fun-d -are necessary parties to an action to redeem.

[11-12] The record shows- that -o-n May 13, 1901, George Eerned-ing became -the owner -of all -the right and title acquired by Ruth A. Parks through the sheriff’s deed on foreclosure; that Eerneding sold -the land to one Sullivan on the 5th day of April, 1904, 'and Sullivan -sold the same land to defendant Swafford on the 15th of April, 1904. The defendant Swafford has -been for many years a resident of this- state. If he had acquired his title-under the Sullivan- deed, m-o-re than ten years prior to- the beginning' of this action', on October io, 1908, he clearly would have been entitled to plead’ -the 10-year statute of 'limitation's, in -bar of the action. It is appellant’s contention,- however, ¡that Parks, Sullivan, and Ferneding, being vested with right to the redemption fund during such time as they held the Galkins title, were necessary parties to a redemption action, and that the right of Swafford to plead the 10-year statute of limitations was tolled by their absence from the state.

Appellant requested the trial court -to find as facts that Ferneding and Parks, during the time they held title, were non-residents of the state, and the refusal of the trial court is assigned as error. Such findings, we think, were vital to ¡appellant’s- case, and the evidence was sufficient to sustain the findings asked for.

Assuming, therefore, that Ferneding and Parks ¡were nonresidents of the state and necessary parties to an action of redemption within the 10-year period, we are called upon to determine whether their -absence from the state tolled' the io-y-ear statute of limitations as against Swafford, their successor in interest.

'Considerable conflict is apparent in the decisions of the courts of different states as to the application of the statute- of limitations in redemption actions. A majority o-f -the decisions holding that the absence of a necessary party from th-e state tolls the statute o>f limitations appear to rest upon- the doctrine that a redemption action is in pers-onam, and not in rem. -Other decisions hold that the right of -redemption is analogous to a mortgage lie-n; that an action thereon can be maintained at any -time within the period of limitation, regardless of the residence of necessary parties defendant, and, because such action -can be maintained, th-eir absence does not toll the statute. A -review of conflicting and- inconsistent -decisions, -we think, would serve no- useful purpose, and would u-nduly extend the discussion of thi-s appeal.

Section. 69 -of -the Co-de o-f Civil Procedure of this state, one of the sections -o-f the statutes governing the tim-e o-f -commencing aotio-ns, provides as follows: “If, when the -cause -of action shall accrue, against any person, he -shall be out of the -state, such action may be commenced within- the terms herein respectively limited, after the return of such person into- the state.”

It is generally held that a statute such as this is applicable ■to nonresidents o-f the state. As w-e have -observed under the statutes of this state, the right of a junior lienholder to redeem from a prior lien accrues upon'the maturity of the debt secured by the prior lien. The right of the junior lienholder, under the statute, to maintain an action to redeem exists and need be asserted. only as against the holder of the senior lien. The redemption action in no manner affects the rights or the estate of the mortgagor, or owner of the original title, and neither is a necessary party to such action. When the senior lienholder -sells a-nd assigns all his right and interest in the lien, -his assignee becomes a necessary party to an action to redeem, and the plaintiff’s right of action as against such- assignee accrues at the date- of his assignment.

It follows that Froelich’s right of action against Ferneding accrued on May 13, 1901, against Sullivan on the 5th day of April, 1904, and against Swafford on the 15th day of April; 1904, the dates of their respective deeds. When plaintiff’s- right of action accrued against Ferneding -on May 13, 1901, Ferneding was a non-resident of the state.

We think it clear that the running of the -statute was suspended as against Ferneding and Parks by reason of nonresidence, it may be observed that the provision tolling the- statute refers only .to the accruing of the cause of action, and does- not purport to make any distinction as to the different form-s or remedy which may be pursued- in an -action. The statute does nothing further than to declare that the right to pursue any remedy appropriate to the particular caus-e of action shall not he 'barred -so- long a-s- the person against whom the right of action exists shall remain a nonresident of the state. We think, therefore, there -can be no warrant for saying that the right of action is suspended as to one class of remedies, but not as to another, or that the running of the statute is suspended as to- actions iru personam, 'but not as to .actions quasi in rem, as a few courts seem to have held. There are no parties to actions strictly in rem, and therefore the statute can have no application in- that class of actions.

ff this view is correct, the running of the io-year-period .of limitations in-favor of Swafford -was tolled by the nonresidence- of Ferne-ding and Parks during .a -considerable part of that period, .and plaintiff’s right to redeem is not barred by the .statute. . .

[13] Respondent further contends that, under the tax statute, appellant’s right of redemption is barred by the possession of Swafford and his -grantors, and. their payment of taxes for more than 10 years prior to the commencement of the action. We think ■such a contention, is wholly .without merit. Ruth A. Parks through the foreclosure, became vested -with, the legal title to the land exactly as it existed in ¡Calkins-, the mortgagor, but subject to the rights created by Froelich’s mortgage. As owners of the legal -title, Parks and- her -grantees were entitled to- possession of the land, and were required to pay the .taxes- assessed thereon, precisely as Calkins,, the mortgagor, would .-have been required to pay them, had the legal, title remained in .him. It follows that possession and' -payment of taxes by Parks and, her grantees could no more affect the Froelich lien than possession, and. payment -of taxes by Calkins, the mortgagor, w-oul-d have affected- it. Possession and payment of taxes by P-a-rk-s and her grantee,, therefore,, could, not create a title which would bar the -rights’ of Froelich under his mortgage lien.

The -trial -court- held that. Froelich was estopped by laches: from foreclosing his mortgage, -as -well, as from asserting, the right of redemption. The, court -erred in so ¡holding.

[14] Froelich could lose no right under the mortgage lien, by mere delay in enforcing if, so- long as. his lien -w.a-s not -barred by the. statute of limitations, -and, aspa -sealed,instrument, the mortgage. could be barred, only by the lapse of-20 years. Chapter 293, Laws 1909, has.no application in this case.

[15-17] Not a single act on the part of Froelich is shown by the record whic-h could have induced Swafford, or any of his predecessors in title, to believe or act on the- assumption- that Froelich had abandoned or waived his rights under t-he mortgage.. On the contrary, the record affirmatively and.conclusively shows that Froelich at all times claimed and insisted on ¡his rights under -the. mortgage, and that' Swafford had actual knowledge thereof. On March 25, 1903, Swafford wrote to- an attorney -representing the Froelichs in the - matter of- this .mortgage, saying: “-Some two-years since you wrote representing some -claim that the Fro-elichs made in re an old second mortgage in a case wherein J. G. Lund v. -the Froelichs and others to perfect title to [this land]. Can you please tell me if- you still represent these Froelichs, and if so. if they still regard it, their second mortgage, as any claim?” In: reply to this letter Froelieh’s attorneys wrote that they were proceding to foreclose the Froelich mortgage, and suggested that Swafford enter an appearance for them, and save the expense of service. In reply to this letter, Swafford wrote that it appeared to. be to the interest of his clients to let this suit go. on. On March ii, 1904, Swafford again wrote to Froelieh’s attorney, among other things, as follows: “It now develops in a decree had in another case that one Ferneding, in whose name this land -now stands, will have to pay off this mortgage.” In February, 1904, Swafford again wrote to Froelich.’s attorney saying that a client of his who. was1 buying the land objected to the title on account of the Froelich mortgage, and that the circuit court had decreed that the owner must clear this cloud on the title, and asks, “What is the least that would procure a release?” On February 27, 1904, Froelieh’s attorney replied that there was1 then due on the mortgage $2,171.14; that he would be ■willing' to advise his client to make some reasonable concessions, but would also advise them to obtain the opinion of -the Supreme Court on the question involved before making the settlement for any nominal consideration. On March 7, 1904, Swaffox'd wrote Froelieh’s attorney requesting 'him to name the least price Froelich would .accept for a x'elease of the ■mortgage, to. which the attorney replied that he had no. authority to submit an offer, but suggested1 that Swafford malm an offer to be submitted to Froelich. On March 3, 1904, Swafford replied that he was not then in a position to make an offer. On March i8tfh Froelieh’s attorney wrote Swafford that he had received, an offer of $200 for a release of the Froelich mortgage, 'but considered its acceptance absolutely out of the question. On April 11, 1904, Swafford wrote Froelieh’s. attorney 'that Ferneding ¡had sold the land to T. J. Sullivan by waiTanty deed, and the record shows that Sullivan sold the land to Swafford on the 15th of April, only 4 days later. Sullivaxi axid Swafford were business partners. From the time Swaffoi*d acquired title, all .communication between himself and Froelich ceased. Not a single act or word on the part of' Froelich is shown in the .record' which by any possibility could have induced Swafford to believe that Froelich had ceased or did not intend to insist upon ihis rights under his mortgage lien against the land. Froth the very beginning down to the commen-cem-efit of this action, Froelich invariably asserted his rights under the mortgage whenever'the same were questioned by any -person. Therefore, when Swafford -took his deed and- assumed possession of the land in April, 1904, he did so with ful-1 knowledge o-f Froe-lich’s rights, and also with full knowledge -that Froelich, at all times, -had -refused to- waive, and was affirmatively asserting his rights under the mortgage.

With fu-1-1 knoiwledge -of thes-e facts, Swafford -placed all his improvements upon the land- at -h-is o-wn .peril, so< far as t-he same -might be affected by t-he Froelidh lien. Cram v. Cotrell, 48 Neb. 648. The great increase in market value o-f these lands during the existence- of Froelich’-s lien is -wholly immaterial. It would be absurd to hold that the natural increase in value of the security -could in- a-ny manner jeopardize or affect the validity of the mortgage -lien. Swafford -had succeeded- to the legal title of Calkins, and- -was in possession under it. So- far as- Froelich’s rights -are concerned, the case stands, exactly as though Calkins, during all this time, had retained the legal- title, and ha-d placed the improvements upon the- -land himself. Under the evidence in the record, we can s-ee no- possible -ground for -holding that Froelich should he estopped by laches or conduct from- asserting his rights under his mortgage. We are impelled, therefore, to the conclusion that appellant has lost neither his- right of foreclosure or redemption.

[18] Where-foreclosure of a junior mortgage and- redemption from a -senior -lien are joined in a single suit, the legal -effect o-f the action i-s -a request that ¡the amount neoessar-y to -redeem: be added to the amount due upon-the junior incumbrance, -and that the junior mortgagee ibe decreed and -given- the right to sell the land at foreclosure sale in satisfaction of the entire -amount of bo-t-h l-iens.

[19] It would follow in this case that foreclosure of ¡the Froelich mortgage, with -redemption as to the ¡amount ¡due under the S-howalter -mortgage, -will not defeat the right o-f Swafford- to redeem -from, a sale under the Froelidh mortgage.

[20] Appellant’s right to an accounting for rents -and profits must be denied in view o-f -the conclusions reached- on this' appeal. Swafford- succeeded to the rights and title of the mortgagors, and can no more be required to- account than could the mortgagor, Calkins.

AVe have considered the other- assignments of error, but do not ■think it-necessary, in view of -the conclusions already announced, to further- examine them, as they-would'-in no- manner affect the rights of either .party as settled and -determined by the views herein expressed. •• -

The findings of f-act, conclusions of law, and decree entered by the trial court must -therefore -be reversed, and a new trial granted.