McBRIDE, C. J.
This cause was argued and submitted April 24,1918, but owing to the inability of the Justices to agree, was continued for further consideration. The late Justice Moore, before his death and in fact during his last long illness, prepared an opinion in the case which, in the judgment of the writer, correctly states the law. It is a monument to the faithfulness of the deceased Jurist, to the duties of his office [5] and the last evidence of that industry which only death conld abate. The writer adopts Judge Moore’s opinion as his own and it is here given in full
MOORE, J.-
1. Before discussing the questions here involved it should be said that in Oregon, though the same judge usually presides at the trial of actions at law and of suits in equity, these forums are essentially distinct. The final determination of an action at law by a court in this state is called a “judgment,” while that of a suit in equity is denominated a “decree.” A party who has an equitable defense in a law action is not remediless however, for if a defendant in such action is entitled to relief arising out of facts requiring the interposition of a court of equity and material to his defense, he may upon filing his answer in the action, also as plaintiff file a complaint in equity in the nature of a cross-bill, the institution of which suit shall stay the proceedings at law, and the case shall thereafter continue as a suit in equily, in which the maintenance of the action at law may be perpetually enjoined by final decree, or allowed to proceed in accordance therewith: Section 390, L. O. L.
"With these preliminary observations, attention will be called to some provisions of our statute, relating to the foreclosure of mortgages. The Code adopted October 11, 1862, and which went into effect June 1, 1863 (Deady’s Gen. Laws of Oregon 1845-64, p. 139), contained clauses which, having been incorporated in Lord’s Oreg'on Laws, read:
“A lien upon real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. In such suit, in addition to the de[6] cree of foreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor or other lien debtor, or by any other person as principal or otherwise, the court shall also decree a recovery of the amount of such debt against such person or persons, as the case may be, in the case of an ordinary decree for the recovery of money”: Section 422, L. O. L.
“During the pendency of an action at law for the recovery of a debt secured by any lien mentioned in Section 422, a suit cannot be maintained for the foreclosure of such lien, nor thereafter, unless judgment be given in such action that the plaintiff recover such debt or some part thereof, and an execution thereon against the property of the defendant in the judgment is returned unsatisfied in whole or in part”: Section 429, L. O. L.
These and other sections of the Code, relating to the • foreclosure of mortgages, which later provisions are not deemed to be involved herein, were in force February 24,1903, when there was filed in the office of the Secretary of State a statute, which, omitting the enacting clause, is as follows:
“An act to abolish deficiency judgments upon the foreclosure of mortgages to secure the unpaid balance of purchase price of real property.
“Section 1. When judgment or decree is given for the foreclosure of any mortgage, hereafter executed, to secure payment of the balance of the purchase price of real property, such judgment or decree shall provide for the sale of the real property, covered by such mortgage, for the satisfaction of the judgment or decree given thereon, and the mortgagee shall not be entitled to a deficiency judgment on account of such mortgage or note or obligation secured by the same”: Section 426, L. O. L.
Obeying the restriction contained in the clause last quoted, the trial court, though determining the amount [7] of the debt, evidenced by the promissory note as a charge against the land if it would sell for that much, refused to grant a deficiency judgment in the suit to foreclose the mortgage, if the proceeds of the sale were insufficient for that purpose: Wright v. Wimberly 79 Or. 626 (156 Pac. 257). For the same reason the demurrer to the complaint in this action was sustained. The question to be considered is what effect the enactment of Section 426, L. O. L., has upon the prior provisions of the statute hereinbefore set forth.
Mr. Wiltsie in his work on Mortgage Foreclosure-(3 ed.), Section 11, says:
“In most states a mortgagee, after default, has three remedies, any one or two or all of which he may pursue concurrently. These remedies are, (1) an action at law to recover the debt, being usually an action on the bond or note, (2) an action in ejectment to obtain possession, and (3) the action of foreclosure; but when he pursues these remedies concurrently, each must be governed by the rules of law applicable to the forum in which it is brought. In some states, however, the action of ejectment can no longer he maintained by the mortgagee for the recovery of the mortgaged premises.”
Another author discussing this subject, remarks:
“Furthermore, the mortgagee may, in jurisdictions wherein the rules of the common law prevail, bring an action of ejectment, in addition to his action on the debt secured, or a hill for foreclosure and sale”: 19 R. C. L. 512.
To the same effect see, also, Coote, Mort. 518.
It is probable that Section 429, L. O. L., was enacted to prevent the maintenance concurrently of a suit in rem to foreclose the mortgage, and of an action in personam on the note or other obligation thereby secured.
[8] An exception to the general rule, that when jurisdiction of a cause has been secured by a court of equity for any purpose, power to hear and determine the entire matter will be retained until a final decree is rendered, was recognized by some courts of chancery which held that in suits to foreclose mortgages no personal recovery against a mortgagor could be rendered, even if the property hypothecated was insufficient to pay the debt secured, since a judgment for such deficiency could only be given in an action at law: 19 R. C. L. 667. Such conclusion originally made it necessary, in case the proceeds of a sale of the mortgaged property were insufficient to discharge the entire debt thus secured when that sum was sought to be recovered, to maintain a suit in equity to foreclose the mortgage, and also an action at law to obtain the remainder, thereby incurring the costs and disbursements, incident to two trials: 4 Kent’s Com., §§ 182-184; Hatch v. White, 2 Gall. 152 (Fed. Cas. No. 6209). In order to avoid such extra expenses statutes have been passed authorizing courts of equity in decreeing the foreclosure of a mortgage, also to award a conditional recovery of the deficiency, if any should be found to exist, after a sale of the mortgaged premises and an application of the proceeds to the debt secured, and without an enactment of that kind, it is generally conceded in some states that such a court does not have inherent power to grant relief of that character: Jones, Mort. (7 ed.), § 1711; 9 Ency. Pl. & Pr. 452. In compliance with the supposed requirement that a statute was essentiál to empower a court of equity in decreeing the foreclosure of a lien, also to award a conditional recovery against the maker of the note, Section 422, L. O. L., was evidently enacted so as to prevent the maintenance of more than one proceeding for the [9] collection of the debt when resort was had to a court of equity. Thereafter Section 426, L. O. L., was passed to prohibit a court of equity, when decreeing the foreclosure of a lien, from awarding a conditional recovery against the maker of a note or obligation secured by a mortgage executed to evidence a part or the whole of the purchase price of mortgaged real property, thereby limiting the recovery exclusively to such land.
Since the title of the act hereinbefore quoted relates to “the foreclosure of mortgages,” it was held that the enactment did not impliedly repeal, amend or modify Section 429, L. O. L., so as to prevent the maintenance of an action at law to recover the amount of a promissory note given to evidence a part of the purchase price of land, though the note was secured by a mortgage of the premises so bought: Page v. Ford, 65 Or. 450 (131 Pac. 1013, Ann. Cas. 1915A, 1048, 45 L. R. A. (N. S.) 247). It was also decreed that the enactment of Section 426, L. O. L., impliedly amended Section 422, Id., so as to prevent a court of equity upon the foreclosure of a real estate mortgage from awarding a conditional recovery against the maker of a promissory note which was secured by a mortgage given to evidence a part of the purchase price of the mortgaged land: Wright v. Wimberly, 79 Or. 626 (156 Pac. 257).
If Section 426, L. O. L., is to be strictly construed, it might follow that an enactment, which was unquestionably designed to benefit a person who had given a mortgage to secure the purchase price of real property, by making an enforced sale thereof pursuant to a decree, the limit of the recovery would impose upon him the costs and disbursements of a suit in equity to foreclose the lien, and also of an action at law to recover the deficiency, if any, when prior to the passage [10] of the statute he could have been subjected to the expenses of only one trial, while a liberal interpretation of the section will necessarily restrict the costs and disbursements to but one proceeding.
2. No rule existed at common law respecting the foreclosure of mortgages, and this being so, our statutes regulating the procedure in a case of that kind are not in derogation thereof and for that reason should not be strictly construed. In speaking of the rules thus anciently adopted and enforced in England, a noted author observes:
“For the authority of these maxims rests entirely upon the general reception and usage; and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it”: 1 Black. Com. *68.
A mortgage at common law was an estate upon á condition subsequent: 2 Black. Com. 154. As soon as the estate was created the mortgagee might immediately enter upon the lands, but he was liable to be dispossessed upon the performance of the condition by payment of the mortgage money at the day limited. It was usual, however, for the parties to agree that until the maturity of the debt the mortgagor should retain possession of the real property, but in case of his failure promptly to discharge the obligation, the mortgagee was entitled to take possession of the premises without any possibility at law of being afterward evicted by the mortgagor, to whom the land was forever thereafter dead: Id., *158. To the same effect see, also, Digby’s History of the Law of Beal Property (5 ed.), 285.
A text-writer, in referring to the kind of mortgage thus in general use, remarks:
[11] ‘ ‘ The mortmm vadium was always made upon definite and exact terms of forfeiture; and if the conditions were not punctually kept, the title passes absolutely and forever from the debtor to the creditor. This form of landed security was extremely severe and often grossly unjust to the debtor. The spirit of the common law was inexorable, and allowed no redress to the unfortunate debtor”: 1 Wiltsie, Mort. Foreclosure (3 ed.), § 2.
In order to mitigate the severity of such a harsh rule, courts of equity interposed and by comparing the value of the tenements with the sum loaned, if it were determined that the land was of the greater worth, a reasonable time was allowed the mortgagor to recall the estate, which right thus granted was denominated “The equity of redemption”: 2 Black. Com. *159; Burton, Real Property, 481; 1 Greenleaf’s Cruise on Real Property, 547.
In a note at page 3 of Burton’s Real Pro^'U’ty, in speaking of judges, the author observes:
“The true idea of the common law seems to be that of an organized system having its principles of growth within itself, and of which these officers are themselves a part. No new law can ever proceed from them; but the old is by their means in a continual process of further development.”
On the following page this text-writer asserts:
“The rules and usage of causes of equity form a system which may be regarded as a kind of secondary common law, applicable generally to matters in which the courts of law have no jurisdiction, but sometimes interfering with those courts, and correcting the law which they observe”: See, also, Wiltsie Mort. Foreclosure (3 ed.), § 216.
In speaking of the engrafting of equitable principles upon the severe rules of the common law regarding mortgages, a text-writer remarks;
[12] “It is believed that the first encroachments by the courts of chancery were in the reign of Qfieen Elizabeth; but their powers were not fully exercised until the time of James I”: Wiltsie, Mort. Foreclosure, § 2. To the same effect see Coote, Mort. *20; 4 Kent’s Com. (11 ed.), *158.
3. Unless a custom had its origin “when the memory of man runneth not to the contrary,” or from the beginning of the reign of Richard I, the rule was not sufficiently ancient to be classed as a part of the common law: 2 Black. Com. *31. The reign of Richard I began 369 years prior to that of Queen Elizabeth, so that the foreclosure of mortgages by granting an equity of redemption is not of common-law origin.
The principles of the common law which can be violated by the enactment of a statute must be a system of procedure which, from time immemorial, has been •recognized in and enforced by courts of law, and since such maxims contained no provision relating to the foreclosure of a mortgage, our statutes on that subject are not violative of the ancient rules.
4, 5. While it is conformable to practice that statutes conferring special privileges on individuals should be construed strictly against them, it is also true that enactments for the redress of existing grievances and for the protection of rights are known as “remedial” and as such should be liberally interpreted: 36 Cyc. 1174. Legislation which protects alike all the members of a class that are or may be affected thereby is not obnoxious to Article I, Section 20, of the Constitution of Oregon: In re Ob erg, 21 Or. 406 (28 Pac. 130, 14 L. R. A. 577). The remedial character of Section 426, L. O. L., which grants to a person the privilege of securing a tract of land for himself and family, by giving a mortgage upon the premises for a part of the [13] purchase price, limiting a recovery in case of a foreclosure to a sale of the land so purchased, and permitting the mortgagee to retain the sum of money received on account thereof, renders the statute subject to a liberal construction and makes it of greater importance to the state in securing home-builders,- than the recognition of a rule which asserts that enactments conferring special privileges upon individuals should be strictly interpreted. Upon principle and authority Section 426, L. O. L., should be liberally construed in favor of the particular class of individuals there specified.
6. So interpreting the clauses of the statute under consideration they will be examined. It will be remembered that Section 422, L. O. L., substantially provides that a lien created by mortgage shall be foreclosed by a suit and the property adjudged to be sold to satisfy the debt secured thereby, and if it appears that a promissory note for the payment of the debt has been given by the mortgagor, the court shall decree a recovery of such debt against him, as in the case of an ordinary decree for the recovery of money. In foreclosing a mortgage in this state, the general practice has been, in a suit of this kind, to allege in the complaint that one or more of the defendants executed a promissory note to a person named, setting forth a copy of the instrument; that in order to secure the payment of such obligation the defendants also executed to the payee of the note a mortgage of real property describing the premises; that the mortgage provided that if the note were paid according to stipulation, the mortgage should be void, but if default in this respect were made the payee of the note or his assignee was authorized to foreclose the lien; that the plaintiff was the holder of the note, no payments on [14] account of which had been made except as stated, thus leaving due a certain amount; and that the conditions of the mortgage had thus been broken. The prayer of the bill was for a determination of the amount of the debt, and a foreclosure of the lien of the mortgage, that if upon a sale of the premises, the proceeds thereof were insufficient to satisfy the expenses of the sale, the costs and disbursements of the suit and the amount of such debt, that the plaintiff might have execution for the remainder. The decree invariably followed the prayer of the complaint, if its averments were substantiated.
“When a decree of foreclosure and sale is given, an execution may issue thereon against the property adjudged to be sold”: L. O. L., § 425, subd. 1.
“When the decree is also against the defendants or any one of them in person, and the proceeds of the sale of the property upon which the lien is foreclosed is not sufficient to satisfy the decree as to the sum remaining unsatisfied, the decree may be enforced by execution as in ordinary cases”: Id., subd. 2.
Though the final process, issued pursuant to a decree of foreclosure, is thus denominated an “execution” against particular property, the practice in Oregon has been for the clerk in the first instance, to send forth, attested by his official seal and signature, what is known as “an order of sale,” containing the title of the court and cause, addressed to the sheriff or other officer, commanding him in the name of the State of Oregon to enforce such mandate, which consists of a copy of the decree and an order to sell the property particularly described therein “as upon execution,” and to apply the proceeds arising from the sale in the manner there specified. Where, after personal service of process, a decree was rendered against a de[15] fendant, foreclosing a mortgage given to secure a promissory note, and the proceeds of the sale of the mortgaged property were insufficient to satisfy the debt, the procedure adopted in this state for the enforced collection of the remainder, after the return of the order of sale, has been to cause to be issued, without further leave of court, an execution as in ordinary cases. It will thus be seen that though our statute does not in express terms provide for giving a “deficiency judgment,” such authority is impliedly conferred by Section 425, L. O. L., which prescribes the method to be pursued to collect the remainder after a sale of land upon the foreclosure of a mortgage securing the payment of a promissory note, and the general practice based upon that clause of the statute has been to incorporate in the decree an order which is equivalent to the rendering of such a judgment. Giving to Section 426, L. O. L., the liberal interpretation to which it is entitled as a remedial enactment, the language there employed is not only aimed at all other clauses of the statute relating to the foreclosure of liens upon property, but is also directed to-the procedure heretofore prevailing in Oregon, which is authorized by the sections of the statutes referred to, that are in any manner inconsistent with the rule now prescribed for the foreclosure of a purchase-money mortgage, thereby impliedly amending the previous parts of the law contrary thereto. If that section of the statute is to be strictly construed, such interpretation would be equivalent to holding that the enactment made no alteration whatever in the prior statutes regulating the foreclosure of liens, or changed in any manner the procedure relating thereto, except to necessitate a suit to foreclose the mortgage, and in case of a deficiency upon a sale of the encumbered real prop[16] erty, the maintenance of an action at law to recover snch remainder, thereby entailing the costs and disbursements of two proceedings, when the expenses of only one was essential prior to the enactment of Section 426, L. O. L.
The decree demanded by Section 422, L. O. L., as modified by the subsequent enactment of Section 426, Id., requires a court of equity in foreclosing a purchase-money mortgage, given to secure the payment of a promissory note, to determine the entire sum due upon the personal obligation. Since, however, the latter section of the statute inhibits that court from granting “a deficiency judgment on account of such mortgage or note or obligation,” a judicial ascertainment of the amount so due is not equivalent to the giving of a decree for the recovery thereof, except only as the award is limited to the real property described in the mortgage. A sale of the encumbered land under the decree foreclosing a purchase-money mortgage, necessarily exhausts the entire measure of power bestowed by the legislative assembly upon the court and there is therefore no remainder due, after the sale of the land, upon which an execution can be issued.
7. The amendment of Section 3, Article VII, of the Constitution of Oregon was adopted to facilitate the ultimate disposal of causes upon appeal, thus preventing the costs and disbursements which may be incurred by another trial. When, therefore, as in this instance, an execution cannot be legally issued upon a decree foreclosing a purchase money mortgage, or any other determination necessarily follows from the conclusion reached, it is the duty of the court so to announce the law in order to curtail expenses and to promote the peace of society.
[17] 8. It is a fact of which courts in Oregon should take judicial notice, that in the year 1897 and for some time thereafter, great financial depression prevailed in the Pacific Coast states. Persons who had purchased real property in that territory during the earlier flush times by paying a part of the purchase price and giving a mortgage to secure the remainder, found it impossible, if they had not disposed of the' premises prior to the monetary stagnation, to discharge their legal obligations, whereupon the foreclosure of liens became inevitable. As there was no money then easily to be secured, the creditor, upon a sale of the premises pursuant to the decree, usually became the purchaser for almost a nominal sum and far below the mortgage debt, thereby obtaining a recovery over upon the personal obligation of the mortgagor for the remainder, thus taking all the property the debtor then had and jeopardizing his prospects of ever obtaining any more land. In order to prevent a repetition of such conduct on the part of a creditor, Section 426, L. O. L., was enacted and made applicable to the foreclosure of mortgages thereafter executed. That such a statute was intended to be remedial cannot well be disputed. The enactment is in the nature of an appraisement law, fixing an upset price upon the sale of real property under a decree of foreclosure equal to the amount of the debt, costs, disbursements, etc., thereby permitting the mortgagee to retain the sum of money which he had received .on account of the sale, and allowing him to be restored to his original estate in the premises.
It will be admitted that in some instances the mortgagee might practically be at the mercy of the mortgagor. Thus, if buildings upon the premises were burned, the land, particularly a city or village lot, [18] might be inadequate security. Partial indemnity, however, might be obtained in such a case by stipulation, whereby the mortgagee could keep the structures insured for his benefit at the expense of the mortgagor, the premiums to be added to the lien and if thé sum given for the insurance were not promptly paid a foreclosure of the lien might be decreed.
In case of the purchase in this state of timber lands, the chief value of which depends upon the number and quality of sawlógs that can be cut and removed from the premises, the purchaser of such real property, by giving a mortgage thereof to secure a part of the consideration, might by his carelessness suffer a fire to destroy the growth upon the land, thereby rendering the security practically valueless, and for indemnity in such a case present insurance is not obtainable. The consequences adverted to might well appeal to the lawmaking power, but they cannot be considered by a court except possibly to determine the legislative intent as a means of construing a statute. Similar questions are commented upon in the case of Dennis v. Moses, 18 Wash. 537 (52 Pac. 333, 40 L. R. A. 302), where,it was held that a statute of Washington providing:
“That in all proceedings for the foreclosure of, mortgages hereafter executed, or on judgments rendered upon the debt thereby secured, the mortgagee or assignee shall be limited to the property included in the mortgage,”
—was violative of the Constitution of that state, on the ground that it was an undue restraint upon the liberty of the citizen to contract with respect to his property rights. In that case the mortgage contained stipulation on the part of the mortgagor waiving all benefits under the provisions of the enactment. The lower court found that a writing to that effect had [19] been made, bnt that the attempted agreement was void; that there should be an appraisement of the land as demanded by the statute; and that the premises could not be sold for less than 80 per cent of such estimated value. The Supreme Court determined, however, that as the privilege undertaken to be bestowed by the statute upon a mortgagor was personal, in which the public had no interest, he could waive all such benefits. The general conclusion thus reached, however, is very much impaired by the dissenting opinion of two justices of the court.
The decision of the majority of the court in that case is not in harmony with the early rule adopted to prevent parties from avoiding beneficent redemption on the foreclosure of a mortgage, in speaking of which an author observes:
“No sooner, however, was this equitable principle established, than the cupidity of creditors induced them to attempt its evasion, and it was a bold but necessary decision of equity that the debtor could not, even by the most solemn engagements entered into at the time of the loan, preclude himself from his right to redeem; for in every other instance probably, the rule of law, modus et conventio vincunt legem, is allowed to prevail. In truth it required all the firmness and wisdom of the eminent judges who successively presided in the courts of equity, to prevent this equitable jurisdiction being nullified by the artifice of the partes”: Ooote, Morte. #21.
In Bradley Engineering etc. Co. v. Muzzy, 54 Wash. 227 (103 Pac. 37, 18 Ann. Cas. 1072), it was held that a decree foreclosing a chattel mortgage without giving a deficiency judgment, as required by the Washington statute, was res judicata as to the plaintiffs’ right of recovery, and it could not afterwards bring a separate action for the deficiency, but its only remedy was to [20] appeal from the decree of foreclosure to correct the omission therein. In Oregon, though the statute does not expressly provide -for the giving of a deficiency judgment upon the foreclosure of a mortgage, the practice in courts of equity in this state, authorized by Section 425, L. O. L., has been so universal to that effect as to acquire the force of a direct legislative enactment respecting procedure, and this being so the decision rendered in the case last cited is controlling herein, thereby making the decree given in Wright v. Wimberly, 79 Or. 626 (156 Pac. 257), prohibitive of the maintenance of this action.
It follows from the conclusions reached in the foregoing opinion that the decree of the Circuit Court should be affirmed. ■ Aket-rmeu
Bean, J., concurs.