equity of redemption, the general rule is that where the mortgagor has been permitted to retain possession, the mortgage will, after a length of time, be presumed to have been discharged by payment of the money or a release, unless circumstances can be shown sufficiently strong to repel the presumption; as payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing, and the like. Now, this case seems to be strictly within the terms of this rule. The two letters from the mortgagor to the female plaintiff, in 1803 and 1808, admit that the mortgage was then subsisting, that the debt was unpaid, and they contain promises to pay it when it should be in the power of the writer. In addition to these circumstances, credits were indorsed on the bond for payments acknowledged to have been made, which, though blank, the court below ascertained to have been made on the 15th of January, 1798, the 15th of May, 1803, and the 2d of August, 1808. The mortgagor, then, cannot rely upon length of time to warrant a presumption that this debt has been paid or released, the circumstances above detailed having occurred from eight to thirteen years only prior to the institution of this suit.

But it is insisted that, although these acknowledgments may be sufficient to deprive the mortgagor of a right to set up the presumption of payment or release, they cannot affect the other defendants who purchased from him parts of the mortgaged premises for a valuable consideration. The conclusive answer to this argument is, that they were purchasers with notice of this incumbrance. It must be admitted that it was but constructive notice; but for every purpose essential to the protection of the mortgagee against the effect of those alienations, it is equivalent to a direct notice, and such is unquestionably the design of the registration laws of Kentucky. A purchaser, with notice, can be in no better situation than the person from whom he derives his title, and is bound by the same equity which would affect his rights. The mortgagor, after for feiture, has no title at law and none in equity, but to redeem upon the terms of paying the debt and interest. His conveyance to a purchaser with notice passes nothing but an equity of redemption, and the latter can, no more than the mortgagor, assert that equity against the mortgagee without paying the debt or showing that it has been paid or released, or that there are circumstances in the case sufficient to warrant the presumption of those facts or one of them. The court is, therefore, of opinion that this objection cannot be sustained by either of the appellants.

§ 924. A purchaser of mortgaged lands, with notice, cannot have the value of his improvements first deducted from the proceeds of the sale. They are liable to the payment of the mortgage debt.

4. The last objection is, that the mortgaged property ought not to have been made liable to the payment of this debt beyond its unimproved value. The object of this suit is to recover a debt and to have the property pledged for its security sold for the purpose of paying it. The debt, as was before observed, is the principal, and the land is only as a collateral security for the payment of it. The mortgagee seeks not to obtain the possession of the land, and to deprive the mortgagor or the purchaser of the improvements they have made upon it; and even if he did, the question would not be materially changed. If by means of these improvements the value of the land has been increased, the mortgagor or purchasers are permitted to enjoy all the benefit of such increase by paying the debt charged upon the land. If he will not do this, but submits rather to a sale of the property, he has all the benefit of its increased

value by receiving the overplus raised by the sale after the debt is discharged. His improvements were made upon property which he knew was pledged for the payment of this debt and he made them solely with a view to his own interest. The land was in reality his own, subject only to the lien; so much his own, that he is not accountable to the mortgagee for the rents and profits received by him during the continuance of his possession, even although the land when sold should be insufficient to pay the debt. Neither is the purchaser accountable for any part of the debt beyond the amount for which the land may be sold, although it should have been deteriorated by waste, dilapidation or other mismanagement. The claim, therefore, of a purchaser with notice, to have the value of the improvements which may have been made from the fruits of the property itself deducted from the price at which the property may be sold, seems to the court too unreasonable to admit of a serious argument in its support. No case was cited, nor has this court met with one, which affords it the slightest countenance. We must, therefore, overrule this objection.

§ 925. The mortgagee of lands has the right to have the whole sold to satisfy the mortgage, and cannot be compelled to apportion the debt among the different purchasers of the mortgaged lands.

Before concluding this opinion, it may be proper to notice a point which was made by the counsel for the appellants, although it was not much insisted upon; it was that the balance due upon this mortgage ought to have been apportioned upon all the purchasers from Hughes. The bill was properly dismissed as to all the defendants, except the heirs and representatives of Hughes, Tandy and Patterson, upon their answers denying the equity of the bill; and from these decrees no appeal was taken. As to Tandy and Patterson, who acknowledge themselves to be purchasers with notice, they stand precisely in the situation of the mortgagor, and the mortgagees have nothing to do with their relative rights to contribution amongst themselves. They are entitled to be paid the debt due to them and to call for a foreclosure and sale of all the mortgaged property, whether it be in the possession of the mortgagor or of others to whom he has sold it. If either of these defendants should pay more than his proportion of the debt, according to the relative value of the property they possess, that is a matter to be settled amongst themselves. But it would be most unreasonable to force the mortgagees into the delay and expense incident to the adjustment of those differences between persons with whom they have no concern. The conveyances by the mortgagor to them are void, as to the mortgagees, against whom they have no right, except that of redeeming, upon payment of the mortgage debt and interest.

Decree affirmed, with costs.

§ 926. The mortgagor's right to plead the statute of limitations is a personal privilege and cannot be availed of by subsequent incumbrancers. Wild v. Stephens,* 1 Wyom. T'y, 366.

§ 927. Instituting foreclosure suit.- Lapse of time will not raise the presumption that a mortgage has been paid, if it is proved that proceedings had been instituted to foreclose it. Kibbe v. Thompson,* 5 Biss., 226.

§ 928. The fact that the note secured by a mortgage is barred by the statute of limitations, does not prevent the mortgagee from foreclosing the mortgage. Wild v. Stephens,* 1 Wyom. Ty, 366.

§ 929. The fact that a note secured by a mortgage is barred by the statute of limitations so as to prevent a recovery on that does not estop the mortgagee from enforcing his mortgage lien in equity. The statute of limitations does not destroy the original debt. Sparks v. Pico, 1 McAl., 497.

§ 930. A statute of limitation which cannot be pleaded against a note cannot be pleaded against a mortgage securing it. Daggs v. Ewell,* 3 Woods, 344.

§ 931. Cancellation of mortgage that is barred.-A junior mortgagee may, by bill in equity, have a prior mortgage canceled after it is barred by the statute of limitations. Fox v. Blossom, 17 Blatch., 352 (§§ 892, 893).

§ 932. In Oregon a suit to foreclose a mortgage was not a suit for "the determination of any right or claim to or interest in real property "which might be brought within twenty years; but is only a suit upon a sealed instrument, the mortgage, for the "collection of a debt charged upon specific property," and is barred in ten years. Eubanks v. Leveridge, 4 Saw., 274.

§ 933. Such a suit is simply in effect a proceeding, not against the person of the mortgagor or his assigns, but in rem against the property mortgaged; and therefore the qualification concerning the absence from the state of a person against whom a cause of action accrues, does not apply to such a suit. Ibid.

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§ 934. Minnesota. - An action to reform and foreclose a mortgage is not barred in Minnesota under ten years. Reeves v. Vinacke, 1 McC., 217 (§§ 623–626).

§ 935. The confiscation of an estate under mortgage does not operate to defeat the mortgagee's rights, and confiscate the mortgage, for the debt is not confiscated, and while the debt remains the mortgage remains also. Higginson v. Mein, 4 Cranch, 415.

XXIII. REMEDIES FOR ENFORCING A MORTGAGE.

SUMMARY-Judgment on debt does not bar foreclosure proceedings; remedies are concurrent, § 936, 937.- Deficiency after foreclosure sale, § 938.—Suit for deficiency when whole debt becomes due on any default, 939.— Title of bankrupt owner good except as against his assignee, § 940.

§ 936. Upon recovery of judgment upon a mortgage note it is merged in the judgment. But the judgment does not, without payment, take the debt out of the mortgage or bar proceedings to foreclose. Connecticut Mutual Life Ins. Co. v. Jones, §3 941-944.

§ 937. A sale under a deed of trust is valid, although there is at the time an execution in the hands of the marshal for the same debt. Ibid.

§ 938. A suit may be maintained for a deficiency after a foreclosure sale when the proceeds of the sale are insufficient to pay the mortgage debt. Omaly v. Swan, § 945.

§ 939. If the mortgage provides that the whole debt shall become due upon default in the payment of any instalment of principal or interest, a suit at law may be maintained for the balance due upon the mortgage note after foreclosure, though the note by its terms be not due. Gregory v. Marks, § 946, 947.

§ 940. An assignee in bankruptcy is not required to take onerous property. If he does not take it the title remains in the bankrupt. If he does not elect to take possession of the property within a reasonable time, he is deemed to have elected to abandon it. The title of the bankrupt to the equity of redemption is good against all the world except the assignee, as the presumption is that the property was regarded as onerous, and that the assignee elected not to take it into possession. Amory v. Lawrence, $$ 918-957.

[NOTES.-See §§ 958-979.]

CONNECTICUT MUTUAL LIFE INSURANCE COMPANY v. JONES.

(Circuit Court for Missouri: 1 McCrary, 388-392. 1879.)

Opinion by MCCRARY, J.

STATEMENT OF FACTS.- On the 7th day of November, 1867, the defendant borrowed from plaintiff $6,000, for which he executed his promissory note, to secure which he and his wife joined in the execution of a deed of trust by which they conveyed the real estate in question (a lot in the city of St. Louis) to one Albert Todd, as trustee. On the 19th day of April, 1879, the plaintiff recov ered in this court a judgment at law upon said promissory note for $6,226, upon which execution was issued, and a small sum collected by levy upon and sale of personal property was duly credited upon the judgment. The property covered by the deed of trust is the homestead of the defendant. The deed of trust contained a provision in the usual form authorizing the trustee, upon default in

payment of the note, to proceed to sell the property, after notice, to the highest bidder for cash. The judgment rendered upon the note being unsatisfied (except as to the small sum made upon general execution), the plaintiff procured the trustee to sell under the deed of trust after due notice. The sale took place on the 1st day of July, 1879, and the plaintiff was the purchaser for the sum of $6,000. A deed from the trustee to the plaintiff was duly executed, and to obtain possession under this purchase the present suit was brought. Upon trial before a jury there was verdict and judgment for the plaintiff.

§ 941. A note is merged in a judgment rendered upon it. Defendant moves to set aside the verdict and for new trial, upon grounds which will now be stated and considered.

1. It is insisted that the note should have been produced and offered in evidence in connection with the deed of trust. We are of the opinion, however, that the production of the note was not necessary. It had been merged in the judgment, and the latter had become the evidence of the debt secured by the deed of trust. It is well settled that where judgment is rendered upon a note it ceases to be, and the judgment becomes the evidence, and the only evidence, of the debt. Wyman v. Cochrane, 35 Ill., 154; Oher v. Gallagher, 93 U. S., 206; Hagg v. Charlton, 26 Penn. St., 202; Freeman on Judgments, 180, 181. § 942. Suit on a note does not waive its lien under a mortgage.

It does not, however, follow, as contended by defendant's counsel, that the plaintiff lost or waived any rights under the deed of trust by attempting to collect the debt due from defendant by means of a judgment at law and a general execution. A deed of trust under the laws of Missouri is simply a mortgage with power of sale, and it is very clear that a change in the form of the debt from that of a promissory note into a judgment did not in any wise affect the rights or obligations of the parties under the deed of trust. The debt remained unsatisfied, and the deed of trust given to secure it continued in full force. Jones on Mortgages, secs. 1215, 1220, 1221; Lichty v. McMartin, 11 Kan., 565; Van Sant v. Allmon, 23 Ill., 30; Dunkley v. Van Buren, 3 Johns. Ch., 330.

§ 943. A wife is not a necessary party to a suit involving the homestead, which she has mortgaged jointly with her husband.

2. It is also insisted that the court erred in refusing the application of the wife of defendant to become a party to this suit, and to be heard as such. It is very earnestly contended by counsel, that, inasmuch as the property in question was the homestead of defendant and his family, that therefore the wife of the defendant has, under the homestead law of this state, a present right of possession in her own right, independently of her husband, and that she is, therefore, a necessary party to the present action of ejectment. The law of Missouri relating to homestead exemptions contains no provision limiting in any way the power of the husband and wife to alienate their homestead by deed of conveyance, either with or without conditions. The power of the owner of a homestead to convey or mortgage the same is not restricted, except by the regulations applicable to conveyances of real estate in general. The statute is not framed with a view to interfere with the right of the owner of homestead property to dispose of it by deed, but to protect it from sale under execution during the life-time of the owner, and to secure it to his widow and children as a home after his death. Such property, within a certain valuation, is exempt from sale under execution, and upon the death of the owner is vested by law in the surviving members of his family. But there is nothing in the statute, and cer

tainly nothing outside of the statute, to support the proposition that the wife of the owner, during his life-time, has any right of possession or claim of any kind in the homestead that may not be divested by a conveyance in which she joins. Nor is there any force in the suggestion of counsel that the wife in this case released her dower interest only, and not her homestead right; she joined in the deed and must be held to have conveyed all her interest. Where the legal title to a lot occupied as a homestead is in the husband, he and his wife, by joining in an absolute conveyance thereof, may undoubtedly make the purchaser a good title, and their right to make a conditional sale, to execute a mortgage or deed of trust, is equally clear, unless the same is prohibited by statute. In re Cox, 2 Dill., 320; Babcock v. Hoey, 11 Ia., 375; Pfeiffer v. Rhein, 16 Cal., 643. It is conceded that, in general, the wife is not a proper party to an action of ejectment for property in the possession of the husband, and in which she holds no separate estate in her own name. The possession of the husband is the possession of the wife. Bledsoe v. Simms, 53 Mo., 305. But it is insisted that because the property here is a homestead a different rule should prevail. We have already seen that, as against her own deed, the wife can have no separate present right of possession, and we are therefore constrained to hold that the general rule is applicable to this case, and that she is not a proper party.

§ 944. A sale under a deed of trust is valid, although there is at the time an execution in the hands of the marshal for the same debt.

3. It is said that the sale under the deed of trust was void, because the general execution was still in the hands of the marshal, and the defendant had until the 15th of September, the return day of the writ, in which to satisfy the same by payment. It is true that the execution remained in force, and was not necessarily returned prior to that date; but it is not true that the defendant had the right to postpone the sale under the deed of trust until the expiration of that period. He could deprive plaintiff of its rights under the deed of trust only by payment of the debt. The plaintiff's remedies were concurrent, and it had the right to pursue both or either, provided one satisfaction only was received. Jones on Mortgages, sec. 1215 et seq.; Gilman v. Telegraph Co., 91 U. S., 603 (§§ 1264-67, infra). The motion is overruled.

OMALY v. SWAN.

(Circuit Court for Massachusetts: 3 Mason, 474, 475. 1824.)

STATEMENT OF FACTS.-This suit was brought to recover the balance due upon a mortgage, after the application upon the debt of the amount obtained by the sale of the mortgaged property.

§ 945. A mortgagor has a right to recover the balance due upon a mortgage after the application thereon of money obtained from the sale of the mortgaged property.

Opinion by STORY, J.

This question has been long since settled by the local law. In Amory v. Fairbanks, 3 Mass., 562, the supreme court of this state affirmed the right; and this court afterwards, in Hatch v. White, 2 Gall., 152, 161 (§§ 769, 770, supra), recognized the same doctrine. It is too late now to controvert it.

Judgment for the plaintiff.