the same year contracted to sell the mortgaged property to Tannehill, who did not get his deed till March, 1916. The mortgagor paid interest on the mortgage until January, 1920. We said: "Appellants [Tannehill and wife] contend that the payment of interest by the mortgagors would not keep the mortgage alive or prevent the bar of the Statute of Limitations from commencing to run from the date that they took their contract."

After citing a number of our previous cases, including Raymond v. Bales, supra, which appellants contended supported their theory, we continued: "These are cases where the mortgagors had parted with their title to the property and do not apply to this case. As long as the legal title remains in the mortgagor, the relation of mortgagor and mortgagee exists and the mortgagee can safely deal with the original mortgagor."

It will be observed that we there announced the rule that a mortgagor may toll the statute as to a mortgage given by him so long as he holds the legal title to the land. Respondent contends that the decision in that case could justly rest upon the idea that Tannehill did not put of record his contract for the purchase of the mortgaged lands, and that because thereof he would not be permitted to assert his interest therein. But it was expressly denied upon the other theory. It would seem, therefore, that we are now in a position where we should select between the conflicting doctrines of the Raymond Case and the Bode Case, following one and expressly overruling the other.

The authorities on the question are divided. The holding of the Bode Case appeals to us as being more nearly in accord with equitable principles and fair dealing in the business world. As long as the mortgagor owns the land which is mortgaged he has a direct and primary interest concerning the encumbrance thereon. The very inter

Limitation of

-effect.

est which would induce him to pay the debt and clear his land would also action-payments empower him to toll by mortgagor the Statute of Limitations. That he may so do as between himself and his mortgagee no authority doubts. After he has once parted with the title to the land he loses all interest in it and ought not to be permitted to create any new obligations upon it or to extend old ones, and so it has been justly held that under such circumstances he may not toll the statute as to a mortgage given by him. To hold that a mortgagee may not deal with his mortgagor so long as he owns the mortgaged land is to force the mortgagee to deny to the mortgagor the usual extensions of time for payment which are so customary and beneficial in the business world. Such a doctrine would simply increase the burdens and hardships of the debtor, without accomplishing any corresponding good. Nor can we see how the second mortgagee or a subsequent lienor can justly claim that the mortgagor may not toll the Statute of Limitations. He takes his mortgage or subsequent lien knowing that it is junior to the first mortgage. There is no equity in a rule which arbitrarily converts a second mortgage into a first one. To hold that the mortgagor may, while he owns the title to the mortgaged property, toll the Statute of Limitations, is to leave the second mortgagee or subsequent lienor in exactly the position he occupied when he obtained his rights. We therefore elect to follow the doctrine of the Bode Case to the effect that "as long as the legal title remains in the mortgagor the relation of mortgagor and mortgagee exists, and the mortgagee can safely deal with the original mortgagor," and to overrule the case of Raymond v. Bales, 26 Wash. 493, 67 Pac. 269. We may more freely do so because it is plain from our expressions in other cases that for many years we have not considered the Raymond Case as deciding the question involved here.

We do not find discussed in the briefs the question whether payments on the mortgage made by the mortgagor's grantee will have the effect of tolling the statute as to the subsequent lien. The parties to this action seem to have assumed that his payment would have the same effect as if made by the original mortgagor. For this reason, and in view of the fact that there does not seem to be any showing as to when the original mortgagor ceased mak

ing his payments, and in view of the further fact that he was a party defendant in this action and suffered judgment to run against him, we will not discuss that question.

We are of the opinion that the trial court should have foreclosed the appellant's mortgage. The judgment is reversed, and the cause remanded for proceedings in accordance herewith.

Main, Ch. J., and Fullerton, Pemberton, and Mitchell, JJ., concur.

As to whether the assumption and part payment of a mortgage by a grantee of the mortgaged premises will interrupt the running of the statute against his liability to the mortgagee, see annotation in 18 A.L.R. 1027, and 21 A.L.R. 496.

Where one has conveyed real property the general rule seems to be that he cannot revive a mortgage thereof after the bar of the statute has become complete, as against his grantee who has purchased the land without assuming any obligation to discharge the debt. 17 R. C. L. 916. This conclusion is founded on the theory that, after the mortgagor disposes of the premises by deed, he loses all control over them, is regarded as a stranger to them, and his power either to impose a burden on or to revive charges against them has ceased. Ibid.

It is otherwise, however, with respect to junior encumbrancers of the property.

A debtor, or his grantee, who still retains an equity in the property affected, may toll the Statute of Limitations, so as to prevent a junior encumbrancer from taking advantage thereof.

By the weight of authority, the debtor, or his grantee, may, if he still retains his interest in the property, toll the Statute of Limitations so as to affect subsequent liens which have already attached; at least, if the stat38 A.L.R.-53.

utory period had not expired either at the time the subsequent lien attached, or at the time of the payment, or new promise, relied upon as tolling the statute. CONSOLIDATED NAT. BANK v. VAN SLYKE (reported herewith) ante, 825; Kerndt v. Porterfield (1881) 56 Iowa, 412, 9 N. W. 322; Buchanan v. Lloyd (1898) 88 Md. 642, 41 Atl. 1075; Johnson v. Lasker Real Estate Asso. (1893) 2 Tex. Civ. App. 494, 21 S. W. 961; Bode v. Rhodes (1923) 119 Wash. 98, 204 Pac. 802; HESS v. STATE BANK (reported herewith) ante, 829, expressly overruling Raymond v. Bales (1901) 26 Wash. 493, 67 Pac. 269.

As is subsequently shown in the annotation, the case of Wood v. Goodfellow (1872) 43 Cal. 188, which is treated in CONSOLIDATED NAT BANK V. VAN SLYKE (reported herewith) ante, 825, as if it were opposed to this view, is not, on its facts, an authority against it, since as subsequently appears in the annotation, the mortgagor, whose absence from the state was claimed to have suspended the running of the statute, had lost his title. The court in that case, however, did say: "This court has repeatedly decided that, as against subsequent encumbrances, 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." And one of

the cases cited in that connection (Lord v. Morris (1861) 18 Cal. 482,) does, on its facts, apparently support the view that neither the mortgagor nor the owners of the equity of redemption can revive a mortgage already barred, so as to affect subsequent liens which had already attached.

Boucofski v. Jacobsen (1909) 36 Utah, 165, 26 L.R.A. (N.S.) 898, 104 Pac. 117, cited in the VAN SLYKE CASE as opposed, was also, as subsequently appears from the annotation, a case where the mortgagor had lost his title.

The case of Raymond v. Bales (1901) 26 Wash. 493, 67 Pac. 269, which the VAN SLYKE CASE cites as opposed, is expressly overruled by HESS V. STATE BANK (reported herewith).

In Clark v. Grant (1910) 26 Okla. 398, 28 L.R.A. (N.S.) 519, 109 Pac. 234, Ann. Cas. 1912B, 505, infra, the court observed that it is only those who have an interest in the mortgaged property acquired prior to the revivor whose rights remain unaffected.

In CONSOLIDATED NAT. BANK V. VAN SLYKE (reported herewith) it will be observed that the hypothesis upon which the rule is predicated assumes that the statutory period had not run, either at the time the junior lien attached, or at the time of the acknowledgment relied upon as tolling the statute.

In Kerndt v. Porterfield (1881) 56 Iowa, 412, 9 N. W. 322, supra, the rule was applied, notwithstanding that the statutory period had run at the time of the new promise, though not at the time the junior encumbrance attached.

In the following cases, in which the tolling of the statute by one who had an interest in the property was held effective as against junior encum. brances, the payment or new promise relied upon as tolling the statute was made before the junior encumbrances attached, or a sale of the property. First Nat. Bank v. Woodman (1895) 93 Iowa, 668, 57 Am. St. Rep. 287, 62 N. W. 28; Cook v. Union Trust Co. (Cook v. Bramel) (1899) 106 Ky. 803, 45 L.R.A. 212, 51 S. W. 600; Bowmar v. Peine (1886) 64 Miss. 99, 8 So. 166;

McLaughlin v. Senne (1907) 78 Neb. 631, 111 N. W. 377; Clark v. Grant (1910) 26 Okla. 398, 28 L.R.A. (N.S.) 519, 109 Pac. 234, Ann. Cas. 1912B, 505.

In Kerndt v. Porterfield (Iowa) supra, it was held that a written promise by the mortgagors was sufficient to remove the bar of the statute as against a second mortgagee purchasing at his own foreclosure sale, where the second mortgage was taken before the first was barred, and not foreclosed until after the written promise was given. It was there said: "As between the mortgagor and mortgagee it cannot be doubted that a new promise which is sufficient to revive the debt will also revive the mortgage. It seems that the same rule ought to prevail against all persons interested in the mortgaged property, unless there exists reasons which in equity would render it unconscionable to enforce the mortgage lien as against their interest. If such a rule did not prevail the mortgage would not continue as long as the debt existed, and the mortgagee would be deprived of the security provided for the debt. We think, however, that equities may arise which would defeat or suspend the lien in order to protect the interests of others. It may be, but the point we do not decide, that one acquiring an interest in mortgaged property after foreclosure of the mortgage is barred by the statute, and, before a new promise is made, would hold by a right superior to the mortgagee after his debt is revived by a new promise. But the case is different where one acquires such an interest before the action upon the mortgage is barred, and after the period of limitation has run the debt is revived by a new promise. In such a case the debt was enforceable when the interest of the adverse claimant was acquired with full notice of the mortgage lien. When his interest was acquired, he took it subject to the mortgage, with the knowledge that the debt could be revived by a new promise and the mortgage lien would stand as long as the debt existed. When the mortgage is foreclosed under a new promise re

moving the bar of the statute, he is in no different condition than he was in when he acquired his interest. If he was satisfied to acquire his interest while it was subject to the mortgage, he ought to be content to hold it in that condition. He can urge no equity which will relieve his property from the lien of the mortgage."

And in First Nat. Bank v. Woodman (Iowa) supra, it was held that a revivor by written promise was sufficient as against subsequent mortgagees, although they had acquired their liens after the statute had run against the first mortgage, the court taking the view that so long as the first mortgage, although barred by the statute, appeared on the record as unsatisfied, the subsequent mortgagees were bound to take notice that it could be revived by the mortgagor.

In Clark v. Grant (Okla.) supra, it was held that the revivor of a mortgage by part payment was effectual as against a judgment lien acquired subsequent to such payment and revivor.

Where, although payments had been made on a vendor's lien, the subsequent mortgage was given before the statutory bar could have been completed, it was held in Cook v. Union Trust Co. (Ky.) supra, that such lien was continued in force for the full statutory period as measured from the date of the last payment made by the vendee prior to his execution of the mortgage. The court said: "In this case the notes given, if no payments had been made, were not barred by limitation at the date of the mortgage to appellee trust company, and any inspection of the record would have put it on notice concerning appellant's debt. At the date of the mortgage to appellee, the appellant, by reason of the annual payments made by [vendee], had fourteen years in which she could collect her notes and enforce her lien, and it cannot be said that, by reason of the fact that [vendee] executed a mortgage to appellee trust company, this right to enforce collection and her lien was reduced to fifteen years from the original date of maturity. To so hold would allow

a debtor to defeat the collection altogether of a debt, if by payments he had been indulged beyond the period of limitation, on the idea that, being the payer and owner of the property, he could by payments elongate both. note and lien. For after the lapse of fifteen years from the date of maturity, when it would be barred, except for the payments, the debtor could sell the property free of lien. This cannot be the law. The vendee or mortgagee accepts the position as it is when his conveyance is executed. The holder of the lien has all the time to enforce the lien as the facts of the case at that time give him, and no more."

A debtor or his grantee in possession may, by payments of interest on a prior lien, keep the same alive as against a junior encumbrancer (Buchanan v. Lloyd (1898) 88 Md. 642, 41 Atl. 1075; McLaughlin v. Senne (1907) 78 Neb. 631, 111 N. W. 377); or by an acknowledgment or new promise (Whittacre v. Fuller (1861) 5 Minn. 508, Gil. 401; Bowmar v. Piene (1886) 64 Miss. 99, 8 So. 166; Johnson v. Lasker Real Estate Asso. (1893) 2 Tex. Civ. App. 494, 21 S. W. 961; Hollister v. York (1886) 59 Vt. 1, 9 Atl. 2).

But after the debtor has parted with or been devested of his equity in the property, he can no longer deprive the junior encumbrancer of the benefit of the statute.

Thus, in Day v. Baldwin (1872) 34 Iowa, 380, it was held that the transferee of one of two purchase-money notes, in seeking, after the running of the statute, to foreclose the vendor's lien without making any personal claim against the vendee, could not take advantage of the vendee's admission in the action "that the debt was still due and owing," as against the purchaser under a foreclosure sale regularly held at the instance of the transferee of the other note. It was there said: "The maker of the note [vendee], in his answer, admits its execution, and that it has never been paid; but we think this admission, under the state of the pleadings and the facts of the case, cannot remove the

bar of the statute existing in favor of [purchaser]. The petition expressly states that no personal claim is made against [vendee]; it seeks only to enforce the claim against the land; the facts of the case show that [vendee] has no interest whatever in the land; that all of his interest had been sold under a foreclosure upon the other note, . . . and that the purchaser at such sale still holds all the rights thereby acquired. [Purchaser] is really the only defendant showing any interest whatever in the land. There is no relief sought against [vendee], and he couples his admission of plaintiff's right to recover the amount of the note out of the land with the proviso that no personal claim be made against him. This answer of [his] cannot be taken to prejudice the interests of the defendant [purchaser]. . . . If a personal judgment were sought against [vendee], his admission would probably authorize such judgment against him, but as no relief can in any view of the pleadings be had against him, we fail to see why he is made a party at all, unless for the mere purpose of obtaining this admission. But, hav

ing no interest whatever in the result of the action, his admissions will not affect a party who is interested, any more than the admissions of any other stranger."

A mortgagor of an undivided interest in land cannot, after his interest in the property has been devested by a judicial sale for division, toll the statute as against the lien of the junior mortgage, by a new promise to the senior mortgagee. Duvall v. Parepoint (1916) 168 Ky. 11, 181 S. W. 653.

Nor can the debtor, by absenting himself from the state, suspend the operation of the statute as against one who, although originally claiming claiming merely a lien under a tax deed, has, subsequently to the expiration of the statutory period and prior to the mortgagee's attempt to foreclose, acquired the debtor's equity of redemption in an action to quiet title. Boucofski v. Jacobsen (1909) 36 Utah, 165, 26 L.R.A. (N.S.) 898, 104 Pac. 117. It was there said: "The respondent had the

right to acquire the equity of redemption-that is, the title to the mortgaged premises-at any time without appellants' consent; and, if such title was acquired at any time after the statute had run in favor of respondent's interest, . . . and before the commencement of the action to foreclose the mortgage, respondent could offer the bar of the statute not only to protect its former lien, but could do so to protect the title itself. Its interest then covered the entire property, and it could interpose the bar as to its entire interest if it could interpose it to any extent, and counsel for appellants frankly concedes that it could interpose the bar for the protection of its tax lien. While counsel for respondent contends that appellants cannot in this action attack the validity of the tax deed, we think they could do so, provided this action had been commenced before the title to the land was quieted in the respondent, or before the statute had fully run in favor of its interest in the mortgaged property. The action to quiet the title in this case, in so far as appellants are concerned, had the same force and effect as if . . . the original mortgagor had conveyed the land by deed to the respondent after it had acquired the tax deed. Appellants in no way could either prevent or question respondent's right to acquire the title at any time from the mortgagor. Nor could they refrain from bringing their action after respondent's interest had been acquired, upon the ground that the interest was only a lien, and as to appellants must always remain such. By neglecting to institute suit appellants took the chance that the interests, although only a lien when acquired, may nevertheless ripen into a complete title, and thus constitute a bar against them, not only so as to postpone their claim, but to prevent its enforcement against the property at all. This is just what had happened before this action was commenced."

And in Wood v. Goodfellow (1872) 43 Cal. 185, it was held that a first mortgagee, whose mortgage was duly recorded, but who, with actual notice