The record-union., 1891-04-01

S III an action ut law or III
equity. These principles when once es-
tapllshed become the guidance Of courts
OF law as well as of equity even i'm those
! countries where the tribunals of law and
equity are distinct 1t was said by Lord
heaesqale; The distinction between
,,,, se,rG. Jaw anu equity is never in any
country permanent distinction. Law
and equity are in continual nroorassion
| and the former is constantly crnininC5
ground upon the latter. A great mart Of
what IS now strict law was formerly com
| sldered as equity, and the eouitable da-
cisions of this age viii unavoidably be
ranked under the strict law of the neyt.,;
Section S07, G. G. p, declares: 'frbere ia
| IN this State but one form of civil actions
| Tor the enforcement or protection of nri-
Vate rights and the redress or prevention
/ OF private wrongs" While all distiuc-
tions in the form Of actions are abolished
yet the principles upon which the RIGHTS
| OF parties are To be determined re-
main to guide the Judgment of tho
/ court. Courts look to the sub
stantlal rights of the parties for the pur-
| pose of determining the remedy to which
they are entitled, irrespective Of the form
OF the complaint under which the remedy
is sought. Whenever q mortgagor seeks
remedy against his mortgage. which
appears 10 the court to be inequitable,
whether 1t be TO cancel the mortgage as a
cloud upon his title Booth VS. Hoskins.
70 Cal. 27ll or to enioin sale undor the
power given by him in the security
| tGrant VS.. Burr, 81 Cal. 29Sl, or to recover
trom the mortgagee the possession of the
mortgaged premises, the court win deny
MN the relief he seeks, except upon the
condition that he shall do that which is
conSonant with equity.
In accordance with these principles, it
is settled rule that a mortgagor cannot
maintain ejectment against his mortgage
until the debt is paid (Phyffe VS.. RiIev
n VIC, -aS
T. 22o; Fee VS.. Swingley, 8 Mont 5q6:
Roberts VS.. Sutherlin, Or. 220; Cooke
VS.. Cooper, IS Or. LIP; Frink VS.. Leroy.
40 Cal. 3l4; Ia llman VS.. Ely, Wis. 2i4;
Brinkman VS.. Jones, A Wis. 5l2; Sahler
VS.. Signer, "A Barb. OH: Madison Ave.
Church VS.. Oliver st. Church, 73 n. Y. s..
Den VS.. Wright, n. j. l.. 175: Wells VS.,
Van Dyke, lG9 Pa. st. 335; Duke VS.. Reed.
"a Tex. 705; Jones on Mortgages, Sec.
! 7I5.l
| The debt is not satisfied or paid by
mere lapse of time. The statute of limi-
tations is q bar to the remedy only, and
does not eXtinguish, or even impair, the
obligation of the debtor 1t is available
in judicial proceedings only as a defense,
ana can never be asserted as q cause of
action in his behalf, or for comforting upon
hlm right of action. 1t is to be used as
shield and not as a sword. at has
never been held that the expiration of tho
statutory time for bringing an action TO
recover debt, or to enforce any personal
obligation operated either as an ex-
tlngulshment or payment. Such result
cannot be derived from the language Of
our statute, the reason or policy of the
law, or the decisions of courts in this State
or elsewhere" Grant VS.. Burr, 81 Cal.
SOL The mortgage after the mortgage
debt has been barred by the statute of
llmltatlons, cannot by any affirmative
proceedings on his part invoke the aid of
the court for the collection of the-debt;
but, II the mortgagor has placed him in
the possession of the land mortgaged, he
does not lose the right thus conferred
upon him, and can resist any action by
the mortgagor to deprive him of this Sc
curlty. In Erink VS.. LIE Roy (49 Cal.
3l4) decree of foreclosure and sale of the
mortgaged premises was entered in 1859.
Thereupon LIE Roy, one of the mortga-
gees, took possession of the premises
under an agreement between the parties
that he might do so, and apply the
rents to the satisfaction of the judgment.
In 1870 Frink, who had succeeded to
the interest of the mortgagor in the
premises, brought an action in ejectment
against LIE Roy for their recovery. Le
Roy in his answer by way of equitable
defense set up the mortgage, the iudg-
ment forclosiHg the same and the agree
ment under which he had taken possess
sion. To this defense the plaintiff
pleaded the statute of limitations. Upon
an appeal from Judgment in favor of
the plaintiff, the Supreme Court held that
the statute Of limitations had no applica-
ton, and that LIE Roy's right to remain
IN possession under the agreement was
not affected by it, saying that: ''The
equity of LIE Roy to be maintained i'm
possession until satisfaction of the debt,
is not lost from the fact that for upwards
of ten years he has been in the actual
possession of that of which he is now
sought to be deprived" In Hubbell VS..
Moulson (53N. Y. 225), it was held that
the mortgagor could not maintain an
action IN eject1nent against the mortgagee
Tor the mortgaged premises, even though
he could prove at the trial that the mort
gagee had received from the lands suffi-
cient rents and profits to satisfy the debt:
that such receipt did not ipso fuctO satisfy
the mortgage and discharge its lien, but
was in the nature of an equitable set-ofr
to the amount due upon the mortgage
debt, and that until after judicial de-
termination had been had upon an ac-
counting in equity, and the application
OF these receipts decreed by the court in
satisfaction OF the debt, the mortgage was
not satisfied.
Section 346, C. C. p, provides that san
action to redeem mortgage of real prop
erty, with or without an account of rents
and profits, may be brought by the
mortgagor, or those claiming under
him, against the mortgagee in possess
unless he or they have continuously
maintained an adverse possession of the
mortgaged premises for five years after
breach of some condition of the mort
gage" If the mortgagor could maintain
ejectment against his mortgage, after the
debt for which the mortgage was given
had become barred by the statute of limit
atlons, he would have no need to bring
an action to redeem the mortgages; and If
the MORTGAGE had maintained an adverse
possession of the mortgaged premises for
five years after the breach of some condi-
ton OF the mortgage, such adverse possess
sion would be a complete defense to the
action of ejectment. Mere lapse of time
does not constitute adverse possession,
but, IT the mortgagor could maintain
eJectment as soon as the RIGHT of action
upon the debt were barred by the statute
of limitations, the provisions of this Sec
ton would be meaningless
1t follows from consideration of the
principles which we have herein stated.
that the equitable defense alleged by tho
defendant was, if sustained by proofs,
sufficient to defeat the plaintiffs right of
recovery; and that the failure Of the
court to make findings upon the issues SO
presented was error, for which the iudg4
ment must be reversed; and it is so or.
dered. HARRISON, j.
We concur:
MCFARLAND, j.,
SHARPSTEIN, j.,
PATERSON, j.,
DEHAVEN, j.,
GARoUTTE, j.,
BEATTY, c. j.
Titled at San Francisco, March 25, 1891.
Appeal from the Superior Court of
Contra Costa COuntY-JOS, =. Jones'