be charged, the letters were not signed by any person authorized so to act as to bind the company.

Answering the first proposition, it will be observed this action is not for a personal judgment on the notes as against the maker, but for the foreclosure of the lien of a mortgage. The effort is to charge the real estate alone with the debt, and, under such circumstances, the present owner of the title is certainly the one who is required to sign the acknowledgment. Foster v. Bowles, 138 Cal. 346, 71 Pac. 494, 649; Cotcher v. Barton, 49 Cal. App. 251, 193 Pac. 169.

Limitation of actions-mortgage debttolling-who may effect.

Two of the letters in question were signed, "Copper State Mining Company, by Martin E. Tew, President," and the other was signed, "Martin E. Tew." It is contended that the president of a corporation, and especially one like this, has no power or authority thus to bind the corporation, and further, that the last letter was obviously a personal one. It will be observed that the trial court specifically found that all of the letters were authorized by the corporation. If there is any reasonable evidence in the record tending to support that finding, we must, of course, uphold it. We are of the opinion there is abundance of such testimony, and that the provisions of ¶ 726, supra, were fully complied with, so far as the mortgage was concerned.

Had this action been between plaintiff, Van Slyke, and the Copper State Mining Company, alone, there is no doubt in our minds that the bar of the statute was tolled. The contention that the acknowledgment does not comply with the form required by 4093, Ariz. Rev. Stat.

acknowledgment and the waiver of the statute effective, as against the rights of defendants? The question may be stated in the abstract thus: "When A gives a mortgage to B, and thereafter, and before the running of the Statute of Limitations, junior liens attach to the lands, does an acknowledgment made by C., a subsequent grantee, before the statute has run, toll the statute as to the junior lien holders?"

There is an irreconcilable conflict in the authorities on this point, due, apparently, to a difference of opinion as to the relative importance of two principles, which are both equitable, but in conflict with each other. The first principle may be stated thus: "A junior lien holder, when he acquires his lien, is entitled to assume the rights outstanding against him at the time will not be increased or enlarged without his consent, and a subsequent waiver of the Statute of Limitations as to the senior lien constitutes such enlargement."

This principle has been adopted as a paramount consideration by the supreme courts of California, Washington, Utah, and possibly one or two others, and the decisions of these courts have been uniformly consistent therewith. Wood v. Goodfellow, 43 Cal. 188; Raymond v. Bales, 26 Wash. 493, 67 Pac. 269; Boucofski v. Jacobsen, 36 Utah, 165, 26 L.R.A. (N.S.) 898, 104 Pac. 117.

The other principle is: "If a junior lien holder had notice, actual or constructive, of a valid and enforceable prior lien, at the time he acquired his rights, he took the latter subject to a possible extension of the time of payment, and cannot complain thereof, as it is only an incident of the lien."

To this effect are the decisions of the supreme courts of Iowa, Nebraska, Vermont, Texas, Mississippi, and Minnesota. Kerndt v. Porterfield, 56 Iowa, 412, 9 N. W. 323; McLaughlin v. Senne, 78 Neb. 631, 111 N. W. 377; Hollister v. York, 59 Vt. 1, 9 Atl. 2; Johnson v. Lasker Real Estate Asso. 2 Tex. Civ. App.

-effect of acknowledgment as against junfor lienors.

The question is one of first impression with us, and we are therefore at full liberty to follow the rule which seems best sustained by reason. After careful deliberation, we have concluded to adopt the second rule as being most in consonance with equity and justice, for two reasons: First, because, while the Statute of Limitations is a legitimate defense, it is not one of right, but of repose, and is not to be extended beyond its plain terms; and, second, because in our opinion the waiver of the Statute of Limitations in favor of a prior lien, made before the statute has run, does not impose an inequitable burden on a junior lien holder who acquired his lien with that prior

lien, to his knowledge, actual or constructive, still enforceable.

The contrary doctrine would in many cases work a real hardship on debtors, by compelling the prior lien holder to proceed with a strict foreclosure, when he was willing to grant an extension of time, while under our ruling the junior lien holder may easily, at any time, by proper proceedings, protect all of the rights he had at the accrual of his lien.

We do not think it is necessary to discuss the other questions suggested by appellants. Holding, as we do, that there was no merger of the mortgage and legal title, that there was a legal waiver of the Statute of Limitations made by the proper party, before the statute had run against the mortgage, and that such waiver was effective as to the defendants, the judgment of the lower court is affirmed.

McAlister, Ch. J., and Ross, J.,

concur.

NOTE.

As to the effect on junior encumbrances of the tolling of the Statute of Limitations by debtor or owner of property securing debt, see annotation following HESS v. STATE BANK, post, 833.

Messrs. Bixby & Nightingale and Brooks & Brooks, for appellant:

So long as legal title remained in the mortgagors and their grantee, they had power to bind the land by payments on the first mortgage, and thereby toll the Statute of Limitations, both as to themselves and the junior encumbrancer, the defendant. bank.

Kerndt v. Porterfield, 56 Iowa, 412, 9 N. W. 322; Bode v. Rhodes, 119 Wash. 98, 204 Pac. 802; Perkins v. Bailey, 38 Wash. 46, 107 Am. St. Rep. 831, 80 Pac. 177; McLaughlin v. Senne, 78 Neb. 631, 111 N. W. 377; Raymond v. Bales, 26 Wash. 493, 67 Pac. 269; Hanna v. Kasson, 26 Wash. 568, 67 Pac. 271; White v. Krutz, 37 Wash. 34, 79 Pac. 495; De Voe v. Rundle, 33 Wash. 604, 74 Pac. 836; Du Bois v. First Nat. Bank, 43 Colo. 400, 96 Pac. 171; Cook v. Prindle, 97 Iowa, 464, 59 Am. St. Rep. 424, 66 N. W. 781.

Mr. John R. McEwen for respondent.

foreclosure sale the sale the respondent bought in the property. About a year later, and in September, 1922, the appellant brought suit to foreclose his so-called first mortgage, making the respondent and others defendants. The respondent as defendant pleaded the Statute of Limitations. Upon trial the court held that the statute had run and the mortgage could not be foreclosed. The plaintiff, who was the holder of the first mortgage, has appealed.

The respondent contends that a mortgagor cannot, by act or agreement, toll the Statute of Limitations as against either a subsequent grantee or a subsequent encumbrancer of the land first mortgaged, and chiefly relies on Raymond v. Bales, 26 Wash. 493, 67 Pac. 269. The appellant, while admitting that a mortgagor has no power to toll the statute as against a subsequent

This case involves the Statute of Limitations.

On June 1, 1910, the defendants Morgan and wife gave the appellant, Charles M. Hess, their promissory note for $5,000, payable on or before two years from that date, and secured it by a mortgage upon certain real estate then owned by them. About a year later they gave the respondent their note for $12,000, and secured it by a mortgage upon the same property. When these mortgages were given, that to the appellant was the first and that to the respondent the second mortgage. Both mortgages were duly recorded. On February 27, 1915, the Morgans conveyed their land to the defendant Morgan Milling Company. They and the milling company from time to time paid the interest and a part of the principal of the first mortgage debt, the last payment being made August 15, 1921. We are unable to determine from the record when the Morgans ceased making payments. In 1921 the respondent foreclosed its so-called second mortgage, but did not make the appellant a party thereto. At the

legal title remains in him he has such power as to a junior mortgage or lien-citing Bode v. Rhodes, 119 Wash. 98, 204 Pac. 802.

We have held that when a debt is once barred the mortgagor cannot revive it as against a subsequent grantee of the mortgaged lands. Damon v. Leque, 17 Wash. 573, 61 Am. St. Rep. 927, 50 Pac. 485. We have also held that the absence of a mortgagor from the state will not suspend the running of the Statute of Limitations as to a subsequent grantee of the mortgaged lands. George v. Butler, 26 Wash. 456, 57 L.R.A. 396, 90 Am. St. Rep. 756, 67 Pac. 263. We have also held that payments on his mortgage indebtedness made by a mortgagor after he has parted with the title will not extend the Statute of Limitations as against a subsequent grantee. Hanna v. Kasson, 26 Wash. 568, 67 Pac. 271. While these cases hold that & mortgagor may not, after he has parted with the title to the land, suspend the running of the Statute of Limitations as against his grantee, yet they do not determine the exact point involved here, which is: Can a mortgagor, by payments made

on his first mortgage while he owns the mortgaged land, toll the Statute of Limitations as against a subsequent mortgage made by him on the same property, his payments having been made after the giving of the second mortgage?

We have two cases, however, which do apparently decide the question involved here, the one decision being in conflict with the other, the later one not expressly overruling the earlier one. See Raymond v. Bales and Bode v. Rhodes, supra. Since the writing of the Raymond opinion the court seems to have assumed that the question involved there was the right of a mortgagor to toll the statute as against a subsequent grantee of the mortgagor, and not a subsequent mortgagee or lienor. In White v. Krutz, 37 Wash. 34, 79 Pac. 495, referring to that and other of our cases, Judge Fullerton, speaking for the court, said: "But it will be observed that in these cases the mortgagor attempted to extend the lien of the mortgage after he had parted with his interests in the mortgaged property, and this it is held he could not do."

Again, in the Bode Case, referring to the Raymond Case and other cases, Judge Hovey, speaking for the court, said: "These are cases where the mortgagors had parted with their title to the property and do not apply to this case."

But, notwithstanding what we have said about the Raymond Case, a careful reconsideration of it convinces us now that it did concern a subsequent lien, and not a subsequent transfer of the title, and that it supports the contentions of the respondent. The facts there were these: On the 30th of September, 1889, one Wood gave a mortgage upon certain real estate to secure his indebtedness. In February, 1896, In February, 1896, Bales secured a judgment against Wood, which on that date became a lien on the mortgaged land. He subsequently sold the land under his judgment lien, bought it at the sale, and after the year of redemption in April, 1901-obtained from the

sheriff a deed thereto. The last payment made by Wood on the mortgage indebtedness was in February, 1899. The suit to foreclose the mortgage was begun in February, 1901. It will thus be observed that the payments by Wood were made while Bales had his judgment lien, but before the sheriff's deed to him, which, of course, had the effect of transferring the legal title from Wood to Bales, so that the exact question involved there was whether payments made on the mortgage after the judgment lien attached could toll the statute as against the person having the lien. We quoted fully from, and approved the doctrine of, Wood v. Goodfellow, 43 Cal. 185, which held, what seems to have been the doctrine of the California courts since that time, that the mortgagor may not toll the statute as against a subsequent grantee, a second mortgagee, or a subsequent lienor. A part of our quotation from the Goodfellow Case is as follows: "But this court has repeatedly decided that as against subsequent encumbrancers, or a subsequent holder of the equity of redemption, the mortgagor has no power, by stipulation, to prolong the time of payment, or in any manner increase the burdens on the mortgaged premises."

We then said: "This court having approved the doctrine of the above case, it must be held here that the encumbrance of appellant's judgment lien and the levy and sale thereunder vested appellant with such interests in the land as prevented the mortgagor from stipulating an extension of the Statute of Limitations as to the right of action to foreclose the mortgage against appellant."

We must hold that the Raymond Case is directly in point in favor of the respondent here. But years after the decision in that case, and in the case of Bode v. Rhodes, supra, we laid down a contrary doctrine. In that case Rhodes, in January, 1912, mortgaged certain land to secure his indebtedness, and later in