Grattan v. Wiggins.

the mortgage, equity would presume that the mortgage had been foreclosed, and that he held by an absolute title, and these facts were a positive bar to relief. (Angell on Limit. 24, 25; 2 Story's Eq. Jur. Sec. 1520.) In Slee v. Manhattan Co. (1 Paige, 48), Slee had assigned a mortgage to secure a debt to the defendants, which they had foreclosed as to the mortgagors, and bid in the property, and then refused to let him redeem; it was held that as the defendants had purchased the property he had a right to redeem the land, but if it had been purchased by a stranger he could only have redeemed the proceeds of the sale in the hands of the defendants; and that this right of redemption was liable to be barred by the lapse of time. (Moore v. Cable, 1 J. C. 385; Cook v. Arnham, 3 P. Wm. 283; 3 Atk. 313.) Even if our statute had not included equitable actions, it is clear, under the English rule, that as it has fixed five years for the limitation of actions for the recovery of real estate, the adverse possession by a mortgagee for that period would operate as a bar. So too, Courts of Equity always proceeded, upon general principles of their own, even where there was no analogous statutable bar, and refused relief to stale demands, where a party had slept upon his right and acquiesced for a great length of time. And in thus refusing reHef equity often allowed a much shorter time than that fixed by the Statute of Limitations to operate as a bar. (2 Story's Eq. Juris. Sec. 1520, and note.) And the same principle has been fully recognized by this Court. (Dominguez v. Dominguez, 7 Cal. 424; Green v. Covillaud, 10 Id. 329.)

But our Statute of Limitations applies to suits in equity as well as actions of law. While the English statute applied only to particular forms of action, such as assumpsit, trespass, and the like, the law of this State applies to the subject matter of the suit, regardless of the form or name of the action, or the forum in which it is brought. This Court has, therefore, held that it applies to suits in equity equally with actions in law. (Lord v. Morris, 18 Cal. 482; McCarthy v. White, 21 Id. 496; Pearis v. Covillaud, 6 Id. 617.)

In the first two of the above cases the action was by the mortgagee to foreclose the mortgage, and it was held that the action

Grattan v. Wiggins,

must be brought within four years from the time the right of action accrued. It is held that "the right to foreclose and the right to redeem are reciprocal and commensurable," and if one cannot be enforced, that is regarded as sufficient to preclude a claim for the other. Thus if the right to foreclose is barred by the lapse of time, the right to redeem is equally barred. (2 Hilliard on Mortgages, 2, 3, 14, 15.) We therefore hold that the right to redeem, asserted by the plaintiffs in this case, was barred by the Statute of Limitations, as well as by the staleness of the claim and the acquiescence of the parties.

The decree of foreclosure was not absolutely void. It was valid as against the mortgagor, who was the sole defendant. He was a necessary party to the suit to foreclose, for although he had previously conveyed the mortgaged premises yet it does not appear that his vendee had assumed to pay the mortgage debts. (Shaw v. Hoadley, 8 E kf. 165; Swift v. Edson, 5 Conn. 551; Brown v. Stead, 5 Simons, 535; Story's Eq. Pl. Sec. 196.) "The decree concluded the rights of the parties to the action, and the sale under it, consummated by the Sheriff's deed, passed, as against them, the entire estate held by the mortgagor at the date of the mortgage." (Montgomery v. Middlemiss, 21 Cal. 106.) Where a party in possession was made a party to the foreclosure suit, his rights, whatever they may have been, are cut off by the decree. (Shores v. Scott River Co., 21 Cal. 139.)

But while the decree was valid and effectual as against the mortgagor, and bound all the right, title, and interest he may have had in the premises, if any, and also barred his right and equity of redemption, yet it did not affect the rights of his vendee, Berrian. The latter still held the equity of redemption, which, as against him, was not foreclosed by the decree, he not having been made a party. He still retained the right, notwithstanding the decree of sale, to pay the amount of the mortgage debt held by Foster, and thus clear the premises from the incumbrance to that extent. The title acquired by Fossatt, the purchaser at the Sheriff's sale, was subject to this right of redemption, and thus open to the contingency of being entirely defeated by such redemption. (Story's Eq. PL Sec. 75.) But this right of redemption should, as we have

Grattan v. Wiggins.

already shown, have been asserted by action brought within the time fixed by the Statute of Limitations. No action of the kind appears ever to have been brought. The present action is brought by the legal representatives of the original mortgagee, and the plaintiffs do not pretend to claim any rights derived from the mortgagor or his grantee. The latter is the only person who has the right to disturb the title acquired by Fossatt and those claiming under him, on the ground of this unforeclosed right of redemption. The present plaintiffs have no right to make the objection or to attack the purchaser's title on that ground. If Berrian saw fit to waive or sleep on his rights and allow them to be barred, he alone is injured, and no other person can assert rights thus lost. The Statute of Limitations has been well said to be a statute of repose, putting an end to strife and litigation and bringing peace and security to the community. This applies especially to titles to real estate. Nothing so much retards the growth and prosperity of a country as insecurity of titles to real estate. During litigation respecting them the land becomes waste and unproductive, for parties will not improve while their title is doubtful. Consequently, no legislation has been more generally approyed than that relating to the quieting of land titles and the limitation of actions respecting them. (Angell on Lim, 7, 8.) It is in this view that the Legislature of this State has prescribed the short period of five years as the most extended period of limitation of actions relating to real estate, and it is the plain duty of the Court to strictly enforce it for the good of society and as conservators of the law.

Lapse of time not only applies as a defense to an action, but it forms the basis of a new title acquired by prescription which is founded upon the statute. The term "limitation" is held to mean "the time which is prescribed by the authority of the law, during which a title may be acquired to property by virtue of a simple adverse possession and enjoyment; or, the time at the end of which no action at law or suit in equity can be maintained." (Angell on Lim. 1.) "As a general doctrine it has too long been established to be now in the least degree controverted, that what the law deems a perfect possession, if continued without interruption during the whole period which is prescribed by the statute for the

Grattan v. Wiggins.

enforcement of the right of entry, is evidence of a fee." (Id. 396.) "It is also unquestionable, that where land has been sold under a claim to the fee for the time prescribed by the statute, and an entry is made by the party who has the written title, such party may be dispossessed by an ejectment brought by him who so held and claimed." (Id. 398.) "A fortiori, will the doctrine as above laid down be acted upon by Courts of Equity." (Id. 399.)

In the present case Fossatt entered into possession in good faith, in the belief that he had a good right and title to the property, with the intention to hold it against all the world. This possession was taken under and in pursuance of a deed which purported to convey the title under a claim of title in fee, and this possession was adverse not only to Cook and those claiming under him, but to all other persons, at its commencement, and so continued in Fossatt and those claiming under him for more than five years. We think it clear that these facts constitute a full defense to the claim sought to be enforced by the present plaintiffs, under the Statute of Limitations, though all of them may not be essential to constitute an adverse possession.

It is urged by Laurencel and Eldredge, that as Fossatt, under whom they claim, was the confirmee in the Courts of the United States, under the proceedings instituted by him therein, and as Cook never filed any claim in the National Courts, the title thus acquired by Fossatt cannot be affected by any claim of Cook or his legal representatives, referring us to the case of Estrada v. Murphy (19 Cal. 248.) Under the view we have taken we deem it unnecessary to determine this question. But the fact that Cook and his legal representatives stood by for years and permitted Fossatt, under his purchase, to prosecute this claim, and expend a large sum of money in perfecting the title, without giving notice of his claim, or offering to bear the expense, or incur the risk and uncertainty of the litigation, is such fraudulent conduct and concealment as would induce a Court of Equity to refuse them all aid, at least, until they had fully indemnified Fossatt and those claiming under him for all these expenditures. (1 Story's Equity, 385, 388; Bryan v. Ramirez, 8 Cal. 467; Farley v. Vaughn, 11 Id. 237.) And it was clearly error in the decree, that this right of

Grattan v. Wiggins.

the defendants to be reimbursed these expenditures was not provided for.

The respondents insist that as the mortgage was executed prior to the passage of the Practice Act of 1851, the mortgagee was vested with all the rights of a mortgagee at common law, including the right to a decree of strict foreclosure- that is, a decree foreclosing all the equities of redemption, and declaring the absolute title vested in them, without any sale of the mortgaged premises. It is clear, however, that in no view of the case are they entitled to such a decree. The mortgage was executed after the passage of the Practice Act of 1850, and is therefore governed by it. The three hundred and ninth, three hundred and tenth, and three hundred and eleventh sections of that act, provide how a mortgage shall be enforced, and that the judgment "shall be, that the property mortgaged be sold for the satisfaction of the debt," which clearly takes away the right to a judgment of strict foreclosure under the common law.

They also claim that Cook was not affected with the notice of the suit of Foster v. Wiggins, because no notice of lis pendens was filed in the Recorder's office, in accordance with Sec. 27 of the Practice Act. Cook was not a purchaser or incumbrancer of the property, pending the action, and it is doubtful, therefore, whether this section applies to him. In Richardson v. White (18 Cal. 106) it was held to apply to those purchasing or taking incumbrances upon the property during the pendency of the action. (Ault v. Gassaway, 18 Cal. 205.) But this section applies only to actions pending, and not to judgments and decrees rendered, which at common law, it would seem, were notice to all persons. (Sorrell v. Carpenter, 2 P. Wm. 482; Searle v. Lane, 2 Vernon, 37, 88; Monell v. Lawrence, 12 Johns. 534; Wattington v. Howley, 1 Dessaussure, 170.) In the present case, the attorney of Foster, who foreclosed the mortgage, testified that before he brought the suit he informed Cook that he was about to do so, to which Cook replied that he did not care, or something to that effect. Whether this was notice or not, it was sufficient to put him upon inquiry. The recording of the Sheriff's deed to Fossatt and the possession taken by Fossatt under it, were at least notice of his claim, but it