Schmucker v. Sibert. not now considering the case of a revivor of the note by payment, promise, or acknowledgment; but refer simply to those cases in which the note never has been barred. In such cases we hold that the mortgage lives as long as the note it was given to secure; that as no separate action can be maintained on the mortgage, independent of the debt secured by it, so there is no separate application of the statute to it. This is scarcely questioned where the mortgagor and promisor are the same, and the mortgaged premises remain the property of the mortgagor; but it is claimed that a conveyance of the mortgaged premises changes the operation of the statute, and that the grantee may successfully plead the statute to prevent a foreclosure, when his grantor, the mortgagor and promisor, cannot, to prevent a personal judgment on the note. But if a payment on the note before the conveyance keeps the mortgage alive while the premises remain the property of the mortgagor, why should it not continue to have the same effect after the title has passed to his grantee? Note and mortgage are separate and distinct instruments no more after the conveyance than before. The relation of each instrument to the other is the same, after as before. One is principal and the other is security. By the conveyance, other parties become interested in the mortgaged premises; so they do by the death of the mortgagor; but in each case the interest is subject and subordinate to the mortgage. By indorsement or guaranty, other parties may become interested in the note; but this does not affect the relation of the note to the mortgage, or cause the statute to bar the note when it does not the mortgage. This question was before us in the recent case of Waterson v. Kirkwood, 17 Kans. 9, 13, 14, in which we took occasion to express our dissent to the views of the California court as announced in Wood v. Goodfellow, supra. See, also, Palmer v. Butler, 36 Iowa, 576; Clinton Co. v. Cox, 37 id. 570; Heyer v. Pruyn, Paige's Ch. 465; Hughes v. Edwards, 9 Wheat. 490. Again, when the note is barred, the mortgage is also barred, and a grantee of the mortgagor may interpose his defense to an action to foreclose the mortgage, whether the mortgagor does or not. He may protect the property conveyed to him by a plea of the statute, as to any lien sought to be charged against it. He cannot, of course, interpose the plea beyond the extent of his interest, and therefore only to prevent a foreclosure. In the case of Coster v. Brown, 23 Cal. 142, the court decided that a "purchaser of an Schmucker v. Sibert. estate, subsequent to the mortgage, may intervene and plead the statute;" and further, "when the debt, to secure which a mortgage is given, is barred by the statute of limitations, the mortgage is also barred, and if an action is brought to foreclose it, one who has purchased or acquired a lien on the property subsequent to the mortgage has a right to intervene in the action and plead the statute of limitations." Also, the case of Gratton v. Wiggins, 23 Cal. 16, where the rights of a subsequent grantee are more clearly set out, as follows: "In an action to recover judgment for the amount of a debt secured by mortgage on real estate, and also to foreclose the mortgage, the grantees of the mortgagor, purchasers subsequent to the execution of the mortgage, have a right to plead the statute of limitations as to that part of the claim of the plaintiff which asks for a decree foreclosing the mortgage and a sale of the mortgaged premises." Also, see to the same point, Lord v. Morris, 18 Cal. 482, 490; McCarthy v. White, 21 id. 495; Low v. Allen, 26 id. 141; Lent v. Shear, id. 361; Wood v. Goodfellow, 43 id. 185; Harris v. Mills, 28 Ill. 44; Pollock v. Maison, 41 id. 516; Medley v. Elliott, 62 id. 532. Once more: When the note is barred, the mortgage is also barred, and no subsequent payment, promise, or acknowledgment can revive the mortgage as to property which the mortgagor has prior thereto conveyed to a third party. Whenever the mortgage is barred, the property is free from the lien. It is, as respects the mortgage, as though the latter had never existed. If, therefore, the mortgagor no longer owns the property, he cannot impose a burden upon it his power to bind the property has ceased. He is as powerless over it as though he had never owned it. He can revive the note, as he could give a new note, for no rights but his own are involved. He can revive the old mortgage just so far and so far only as he could give a new mortgage, and that is, to bind his own property. Day v. Baldwin, 34 Iowa, 380. Still further we remark, that the acceptance of a deed which in terms provides that the grantee shall pay off a certain incumbrance, is an undertaking by the grantee to pay the incumbrance, and an undertaking which may be appropriated by the holder of the incumbrance, and upon which he may maintain an action. Corbett v. Waterman, 11 Iowa, 87; Bowen v. Kurtz, 37 id. 240; Ross v. Kinnison, 38 id. 397; Lawrence v. Fox, 20 N. Y. 268; Thorp v. Keokuk Coal Co., 48 Iowa, 253; Burr, Admx. v. Beers, 24 N. Y. 178. VOL. XXVI-97 Schmucker v. Sibert. The rule is thus stated by the assistant vice-chancellor in Blyer v. Monholland, 2 Sandf. Ch. 478: "The obligation is not enforced as being made by Monhollands to the complainant for the payment of Fitzrandolph's debt, but as a promise by M. to Fitzrandolph to pay him $2,500 by paying that sum to the complainant in discharge of his debt, which promise the complainant, as the mortgage-creditor of Fitzrandolph, is equitably entitled to lay hold of and enforce." And the law courts have since then held that a legal action might be maintained by the holder of the security. Lawrence v. Fox, 20 N. Y. 268; Anthony v. Herman, 14 Kans. 494. Such an undertaking is a contract in writing, and the statute of limitations does not begin to run upon such a contract until the execution of the deed. Nor is it material that this contract is not signed by the grantee. The acceptance of the deed makes it a contract in writing binding upon the grantee, just as the acceptance by a lessee of a lease in writing signed by only the lessor makes it a written contract binding upon such lessee; and suit can be instituted upon it, and the same rights maintained, as though it were also signed by the grantee. And it is not to be considered as a mere promise or acknowledgment, as named in the exceptions to the statute of limitations, and therefore to be signed by the party to be charged. Those exceptions apply to debts already existing against the parties sought to be held, and aim to continue in force prior liabilities. But the grantee in such a deed was not liable before its execution. His liability dates from that. That is the first contract he has made, the first obligation he has assumed. At that time, therefore, as to him, the statute first commences to run. Nor is he discharged by the fact that the debt as to the original debtor has since his promise become barred by the statute of limitations. For his contract is an original, absolute promise to pay the debt, and not a mere contract of indemnity, and to save the original debtor harmless. The creditor may ignore the original debtor entirely, and proceed directly and solely upon this promise. The grantee is not simply a surety. His promise is not to see that the original debtor pays, or to pay if he don't. But it is a direct, absolute and unconditional promise to pay the debt to the creditor. Even where there has been only a guaranty of payment, it has been decided that the statute did not commence to run as to the guarantor until the date of his guaranty. Thomas v. Croft, 2 Rich. (S. C.) 113; Cruger v. Daniel, 8 U. S. Digest (Abbott's Rev.), 790, Schmucker v. Sibert. or 1 McMullan's (S. C.) Ch. 157. Upon the same principle, and by the same reasoning, it would seem to be clear, that where the deed specifies that it is made subject to a certain mortgage, an acceptance of a deed is an undertaking that to the extent at least of the value of the granted premises the grantee shall pay the mortgage. Or, in other words, it is an agreement by the grantee that the granted premises shall be used so far as may be necessary to discharge and pay the mortgage. And as in the case last suggested, and for the reasons there given, the statute begins to run only from the execution of the deed. We think the written agreement signed by Schmucker & McConnell should have been received in evidence. It was a written agreement to pay this note and mortgage, or at least, to pay a certain amount thereon. It recited an ample consideration therefor, was executed less than five years before the commencement of the action; and under the decision in Anthony v. Herman, supra, we fail to see any valid objection to its admission. The evidence of an oral agreement was of no value, for it placed such agreement more than three years prior to the commencement of the action. Other objections might also be presented to it. It does not follow that the case is to be considered here as though the written agreement had been received in evidence, for though the court erred in not admitting it, yet non constat, that, if admitted, no valid defense to it could have been offered. The error is righted by remanding the case for a new trial, and not by considering the testimony as really in the case. For instance, suppose a tax deed were offered in evidence, objections made to it as void upon the face, and sustained. This court on review, if it held the deed prima facie valid, should not dispose of the case as though the objections had been overruled and the deed admitted, for if admitted the opposing party might have shown that it was void because prior to any sale the taxes had actually been paid. In other words, a party by objecting to the admission of testimony does not waive all defense he may have to the testimony if admitted. We notice that some of the authorities cited by counsel for defendant in error seem to sustain their claim, but we are not prepared to assent to it. We think that upon the record, as it now stands before us, no decree of foreclosure and sale should have been entered as to the entire property, but only as to the undivided-half conveyed to Rasure v. Hart. Schmucker, and for the satisfaction of one-half the debt. The judgment will therefore be reversed, and the case remanded for a new trial, unless the defendant in error shall consent to a modification of the decree in accordance with the views herein expressed, such consent to be filed in the District Court within thirty days after the receipt of the mandate in this case. Any error, if error there be, in the decree, as to redemption, can be corrected in the subsequent trial and decree, or after the filing of the consent. Judgment reversed. RASURE V. HART. (18 Kans. 340.) Exemption from execution. A statute exempted from execution and attachment, in addition to certain specified articles, "all other household furniture" of the debtor, the head of a family, not exceeding in value five hundred dollars. The debtor had less than that value of household goods of every kind. Held, that all was exempt although not at all necessary for his and his family's personal use. but kept merely for the use of boarders and guests for hire. C. S. Bomman and J. G. Waters, for plaintiff in error. Nichols & Greene, for defendant in error. VALENTINE, J. The defendant in error brought this action in the court below against the plaintiff in error on a promissory note, aud procured an order of attachment upon the sixth, seventh, and eighth statutory grounds, which order of attachment was levied on lot 10, in block 43, in the city of Newton, and also upon certain personal property. Afterward the plaintiff in error moved to dis solve and discharge the attachment, first, because the facts stated in the affidavit, upon which the attachment was issued, were not true; and second, because all of said property was, under the law, exempt. Said motion was based upon the affidavit of the plaintiff in error, and the papers in the case. Other affidavits were also filed by both parties. The motion was heard by the judge below at |