11 252 14 194 14 516 I. PAYMENT: K, holding R's note and mortgage, lodges, in company 17 623 with another person, at R's house one night, and in the morning produces the note, and demands payment, which R is unable to pay: whereupon K says he will credit R's charge for the lodging, amounting to one dollar, upon the note; to which R does not assent: held no payment to take the case out of the Statute of Limitations. II. MORTGAGE: In this State, if a recovery upon a note secured by a mortgage be barred by the Statute of Limitations, an action for foreclosure is also barred. Argument 1. The note is the principal, and the mortgage an incident thereto. 2. The mortgage is, upon the mortgagee's decease, personal as sets. 3. It is a mere pledge for the payment of the debt, or performance of an obligation. 4. The mortgagor retains the right of possession up to the confirmation of sale had upon the decree of the Court. This was an action brought on the twenty-second day of September, 1865, in the District Court for Washington County, for the foreclosure of a mortgage made by Ryley, the defendant, to Kyger, the plaintiff, on the 23d of September, 1857, to secure a note of that date, made by the former to the latter, payable one year after its date. The petition alleged a payment of one dollar, made by the defendant on the 4th of September, 1865. The answer denied the payment, and pleaded the statute limiting actions on notes, specialties, &c., to five years. KYGER v. RYLEY. The proofs showed, that on the night of Sept. 4, 1865, the plaintiff and another person, both of whom were unknown to the defendant personally, went to his house, and, applying for a lodging for the night, were taken in and provided for. Nothing was said about the note until morning, when the plaintiff produced it, and asked the defendant for payment; to which the defendant answered, that he had not the money to pay it. The plaintiff then said he would credit it on the note. The defendant swears that he did not consent to the plaintiff paying his bill in that way; and, in fact, no indorsement of the payment was at the time, or ever, made upon the note. The Court rendered a decree of foreclosure, and the defendant appeals. A. J. Poppleton, for the appellant. The only question before the Court is, whether, under the law in force in this State, the mortgage in question was barred by the same lapse of time as the note, to wit, five years, or whether a longer time. is required to effect that result. It is accordingly respectfully submitted that said mortgage was barred by the express terms of the statute. Revised Statutes, page 295, sects. 7, 10, 16; page 297, sect. 85. The entire current of decisions which hold that the note may be barred, and the mortgage made to secure the same still survive, are based upon the idea, that the one being a simple contract, and the other a specialty, they are amenable to different statutes, and are each controlled by statutes applicable by their express terms to the respective instruments. Belknap v. Gleason, 11 Conn., 160; Thayer v. Munn, 19 Pickering, 535; Craig v. Payne, 4 Cushing, 486; Joy v. Adams, 26 Maine, 330. KYGER v. RYLEY. All distinctions between said contracts being unknown to our law, the reasoning in those cases has no application. The better rule is clearly that laid down in the following cases; viz., that when the note, the principal debt, is barred, the mortgage collateral thereto is also barred. Jackson v. Sackett, 7 Wend., 94; Mills v. 28 Illinois. The policy of the statute would be wholly thwarted and subverted upon any other construction than that the mortgage falls with the note. G. W. Doane, for the appellee. MASON, Ch. J. The first question presented to us is, whether a payment was made by the defendant upon these securities which will take the case out of the Statute of Limitations. The circumstances are not very creditable to the plaintiff. He sought and obtained the night's lodging with the view of overreaching the defendant, and, without his consent, gaining an advantage; and, when he disclosed the object of his visit, the defendant did not consent to his paying for his lodging by a credit on the debt. The case wants the very first element of a valid payment to take the case out of the statute, which is an intelligent, or at least conscious, consent on the defendant's part, that what was due to him should be applied on his debt. The next, and a very important, question is, Was the mortgage barred when the statute ran against the note? In all proceedings to foreclose mortgages in this State, the decree is, that the mortgage be foreclosed, and the mortgaged premises be sold to pay the amount due upon the mortgage debt. A strict foreclosure is KYGER v. RYLEY. unknown in our State. The nature and character of a mortgage, as well as the method of proceeding to foreclose the same, is regulated by statute. A mortgage in this State differs essentially from a mortgage at common law, both in the remedy and the quantity and character of the estate which was vested in the mortgagee. A mortgage at common law may be defined to be an estate created by a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money and the like, by the grantor, to some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance. The estate becomes effectually vested in the grantee by the mortgage if the grantor or mortgagor fail to perform the condition of the mortgage. Fray v. Cheney, 14 Pick., 399; Brigham v. Winchester, 1 Metcalf, 390; Thrall v. Trask, 7 Wisconsin, 566. The possession of the mortgaged premises may be in the grantor or grantee, according to the terms of the deed; though ordinarily it is retained by the grantor. If there is no provision in the deed as to possession, the mortgagee may lawfully enter and hold possession of the premises until condition performed; and, if the mortgagor failed to perform the condition of the mortgage, his estate was, by the common law, wholly defeated and gone. Mortgages had become common in the time of Henry VI. and Edward IV. Mr. Donell ascribes their origin to the Jews: others derive them from estates upon condition at the common law. And at common law, if the payment was not made at the time fixed, the estate, by the breach of the condition, became forfeited; and the mortgagee thereupon held the same as absolute and irredeemable. 1 Spence, Eq. Jur., 602; Story's Eq. Jur., sect. 1004. KYGER v. RYLEY. The idea of extending the time, in which the debtor might redeem his estate, beyond that fixed by the contract of the parties, was doubtless borrowed from the Roman law of hypothecation: the estate did not pass out of the debtor until a sale made by authority of the prætor, and might be redeemed at any time before sale actually made by the payment of the money for which it was a security. Story's Eq. Jur., sect. 1005; 1 Spence, Eq. Jur., 600; Cooke, Mortgages, 40. The right to redeem after condition broken made its way slowly against the notions of the common law; though a strict forfeiture in case of a mortgage was condemned by the Council of Lateran, A.D. 1178, during the reign of Henry II. It is said, Parliament, in 1391, refused to admit a redemption after forfeiture; and such estate continued irredeemable during the reign of Edward IV., who died in 1783. In Goodall's case, 39 and 40 Elizabeth, the Court of King's Bench held that an estate was lost to a mortgagor, he having failed to perform the condition truly and effectually. 5 Rep., 96. The disposition to save the debtor from loss if he was willing to indemnify his creditor on account of his debt, which had grown up under the influence of the Courts of Chancery, continued to gain strength until the time of James I., when the Court of Equity decreed a redemption after forfeiture; and finally, in the reign of Charles I., it became settled that the payment, or tender, after the day, should have the same effect in saving the estate of the mortgagor from forfeiture as if done before the day of payment. A case of this kind is decided in 1 Rep. in Chancery, 32, Howe v. Virgores. The right to redeem mortgaged premises after they had, in the view of the common law, been forfeited by a failure to perform the condition of the mortgage, gave |