The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-06-19

Perry, Trusts, secs. s73, S74, 881) The code of
1852, in force when this suit was commenced, pro
vided, nevertheless, that IAN executor. administrator
or trustee Of an express trust, or a person expressly
authorized by statute, may sue without joining with
him the person for whose benefit the action is prose
cuted." (R. s., sec. 252) This provision of the stat
ute does not absolutely prohibit benehciaries from
being joined as co-plaintiffs in cases III which theymight
have been heretofore properly joined, or required to
be Joined. but only dispensed with the necessity of
joining beneticiaries in such cases. go Ind, 800
The general rule may be said to be that the lien
created by a mortgage may be enforced, although the
9ept Whlch the mortgage was gwen 70 secure mas
been barred by the statute of limitations.
This rule is recognized in many If not most of the
States, upon the theory that statutes of limitations
are applicable only to proceedings in courts of law;
and hence not to suits in chancery. The general rule
may be further stuffed to be that a court of equity IS
not p~recluded, in a suit for the foreclosure of a mort
gage given to secure a debt from rendering a decree
against the mortgageor for any remainder of the debt
not satisfied by the sale of the mortgaged property,
notwithstanding the debt is barred. This is upon the
ground that such a decree is only an incident to the
decree of foreclosure, and that, when equity takes
jurisdiction of a cause, it will retain its jurisdiction
until complete relief is afforded. In some of the
States, however, the statutes limit suits in equity in
the same manner as actions at law, and in theseStates
the mortgage is held to be in effect extinguished when
the mortgage debt is barred. rs Cal, 1922
1t is well settled in this State that a mortgage on
real estate constitutes only a lien on the land as Il Sc
curity for the debt it is given to secure, the legal title
still remaining in the %mortgager subject to the
Mortgages sec. 80 1t is equally well settled that, in
this State. the debt is the principal thing, and the
mortgage only the incident. (39 Ind, 324; 60 Ind,
450)
As we have but one form Of action in civil cases,
cur st1tute of limitations is applicable to all demands,
whether legal or equitable, for the recovery of money.
II is 6irectod 70 +ba sIbiec+ -p,atter and has all claims
occordinr to tbe eerera} Lass m which thew respect-
ivslv belong. II has also been held by tbis court that
a MORTGAGE is inonerative when the debt is void or has
been discbarosd n Ind 337. < md 353. 6 Ind.
800. AZ Ind S7eI II md 100. 70 Ind. S4l So
when a MORTGAGE becomes barred the mortgage lien
caases to ba 1efFee+,sI no Tav I1-. % Tex so. .
Neb.. 90: ; Neb. 400. 4 Ia. 434:1S la. 34S;l Ia. pa;
80 Ia, 3O3; 2 Kan, 3S4; % ILL.,, "A; 67Hl, 100 I'm
less the mortgage itself contains an express agreement
to pay the mortgage debt. An ordinary form Of
mortgage las this was) is not to be so Construed. (R'
=, sec. 1887 90.
The mortgage in this case was an indemnifyng
mortgage to %sureties and was not accompanied by any
bond or other instrument of writing to pay or repay
any sum of money. The demand which the intestate
held against Allen Mays estate for reimbursement OF
money paid as surety cannot be held to be based on a
contracts in writing; and hence was such a demand as
would be barred by the six years statute; Bush,
4I4; 40 Ky, 2S7; 8 w. q 3. l90i 10 Watts, l4Si
q Pa. St, 81; Al Pa. St, 459; 10 Ohio St, oo3i
Brandt, Suretyship, sec. 257i Sheldon, Subrogationn'
sec. no. Leading Casesin Equity, Pt. l, l4o; IT. z,
281l