
    BOUCOFSKI et al. v. JACOBSEN et al.
    No. 1940.
    Decided June 12, 1909
    (104 Pac. 117.)
    1. Appeal and Error — Time to Appeal-^Computation — Retroactive Operation oe Statutes. Tlie general rule that a judgment may not be affected by a statute passed after its entry does not apply to statutes affecting procedure or practice, so that. Rev. St. 1898, section 3168, as amended by Laws 1907, p. 228, c. 150, effective March 25, 1907, authorizing additional findings and conclusions of law after entry of judgment, would apply to a judgment originally entered on March 16th, so as to make the time for appealing from the judgment run from September 21st, when the additional findings were made; the action being still pending when the amendment became effective, by virtue of section 3490, providing that an action is deemed pending from its commencement until its final determination upon appeal, or until time for appeal has passed. (Page 171.)
    2. Appeal and Error — Right op Appeal — Nature op Right. The-right to appeal is a constitutional and valuable right, and should not be denied, unless it clearly does not exist or has been lost, or abandoned. (Page 172.)
    
      3. LIMITATION 03? ACTIONS-ACTION TO FORECLOSE — JUNIOR MORTGA* gee. One claiming title to, or an interest in, or a lien on, realty may invoke the statute of limitations as against a prior claimant, when the latter’s claim has been barred by limitations. (Page 174.)
    4. Limitation 03? Actions' — Operation 03? Bar — Persons to Whom Available: — Action to Foreciose — Extension. Extension of time of payment by receipt of part payment, or accepting a new promise by the first mortgagee, will not revive the debt or extend time of payment without a junior claimant’s consent, so as to prevent him from interposing the statute of limitations, if such extensions are made after he has acquired his interest in the property, of which the first mortgagee has actual or constructive notice, and the full period of limitations has lapsed since he acquired his interest. (Page 177.)
    5. Mortgages — Action to Foreclose — Remedies In Rem and In Personam. Under Comp. Laws 1907, section 3498, permitting only one action to enforce any rights secured by mortgage, when judgment shall be given adjudging the amount due and the sale of the property, and section 3499 permitting a general execution to issue against the debtor only after sale of the mortgaged property, there is no personal liability by the mortgagor .unless there is a deficiency after sale, so that an action to foreclose is essentially in rem, and personal service is not necessary except to support a judgment for any deficiency after sale, but, even in absence of personal service, the amount of the deficiency remains a subsisting debt of the mortgagor which may be sued for by the mortgagee. (Page 178.)
    6. Limitation oe Actions — Computation of Time: — Suspension-Absence itrom State — Effect on Junior Mortgagee’s Claim. Since an action to foreclose a mortgage is under the statutes essentially one in rem, in which personal service is not necessary except to support judgment for a deficiency after sale, and since such deficiency may be sued for as a personal debt of the mortgagor, the mortgagor’s absence from the state would not extend the period of limitations in favor of a first mortgagee, so as to prevent a junior mortgagee from interposing the statute of limitations against the senior mortgage. (Page 178.)
    7. Limitation of Actions — Action to Foreclose Mortgage — Limitations — Right of Junior Mortgage®. A'junior mortgagee may interpose the statute of limitations to bar a prior mortgagee’s claim to the full extent of his own interest in the mortgaged property, so that if the junior mortgagee afterward acquires the title, he may wholly bar the enforcement of the first mortgage, hut if he only has a lien, and the title is outstanding, and the first mortgagee's claim is not barred as against the mortgagor, the junior mortgagee may only set up the statute to postpone the first claim to his own; any surplus remaining after satisfaction of the junior lien going to the first mortgagee. (Page 179.)
    8. LIMITATION 037 ACTIONS — ACTION TO FORECLOSE MORTGAGE — LIMITATIONS — Time oe Running. Where the interest of a junior mortgagee is acquired before the debt secured by a first mortgage has matured, the statute of limitations began to run in favor of the junior mortgagee from the time the right of action of the senior claimant against the mortgagor accrues. ' (Page 180.)
    9. Mortgages — Action to Foreclose — Personal Judgment — Exhaustion oe Property — Necessity. Under the statute, the mortgaged property constitutes a primary fund to which the mortgagee must resort, and he can have no personal judgment against the mortgagor until it is exhausted. (Page 182.)
    10. Mortgages — Action to Foreclose — Parties—Junior Mortgagee. In an action to foreclose a prior mortgage, a subsequent mortgagee or claimant is a necessary party; he being entitled to set up any legal or equitable defense to protect his interest. (Page 182.)
    11. Judgment — Bar—Persons Barred. As a general rule, one’s rights in the subject of an action cannot be affected by a judgment to which he was not a party. (Page 184.)
    12. Limitation of Actions — Action to Foreclose Mortgage — Limitations. In an action to foreclose by a first mortgagee, in which a junior mortgagee, who had also acquired a tax deed to the mortgaged property, pleaded the statute of limitations to postpone plaintiff’s claim to his own, plaintiff could attack the validity of the tax deed if the action was begun before the statute had fully run in favor of defendant’s interest in the mortgaged property. (Page 185.)
    13. Limitation of Actions — Action to Foreclose Mortgage — Limitations. A junior mortgagee could at any time acquire title from the mortgagor without the prior mortgagee’s consent; and, if acquired either by grant or by tax deed after limitations had run in favor of the junior claimant’s interest, or if the statute had fully run since such interest was acquired, the latter could plead the statute of limitations to protect his whole title as against the prior claimant, and not merely to postpone the . senior mortgage to the lien, so that the júnior claimant, by having title based on a tax deed quieted in himself in an action against the mortgagor, could plead the statute to prevent the enforcement of the prior mortgage at all, though the prior claimant was not a party to the suit to quiet title. (Page 185.)
    14. Limitation of Actions — Action to Foeeclosb Mortgage — Limitations. While the running of limitations as against a .subsequent claimant was not suspended by the mortgagor’s absence from the state, it was suspended as between the prior mortgagee and the mortgagor. (Page 185.)
    Appeal from District Court, Third District; Ron. G. W. Morse, Judge.
    Action by Selina Nixon Boucofski and others against Esther Cohen Jacobsen and others.
    Judgment denying foreclosure and a personal judgment against the defendant named.
    Plaintiffs appeal.
    Remanded, wren directions to enter judgment against defendant named, and Aeeiemed as modified.
    
      Allan T. Sanford for appellants.
    
      G. S. Patterson for respondents.
    APPELLANTS'’ POINTS.
    The right of appeal is given only from final judgment. (Article 8, section 9, Constitution, Utah, section 3300 Revised Statutes.) “Final judgment means judgment terminating the litigation between the parties in the court rendering it, and when a motion for new trial is duly made within the period presented by law, the judgment becomes final for the purpose of an' appeal when it is overruled.” (Bear River Orchard G.ompany v. Ranly, 15 Utah 265; Watson v. Newberry, 15 Utah 506, 50 Pac. Rep. 611, 49 Pac. Rep. 479.) The motion to modify the findings must-be considered tbe same as a motion for new trial, and tbe time for appeal on. a motion for a new trial does not begin to run until decided, and tbe six months is from tbat date. (.Eastman v. Gurrey, 14 Utah 169, and cases cited, page 63, under annotation of section 9, article 8, Constitution.) Independent of tbe statute tbe court has tbe right to correct tbe findings to make them conform to tbe facts. (Rayes v. Witherbee, 60 Cal. 399; Hayne New Trial and Appeal, 145; Hayes v. Laviginino-, IT Utah 185; Lynch v. Ooviglio, II Utah 106.) Where a judgment is modified as tbe result of a motion made in tbe court, tbe time for appeal begins to run from tbe entry of tbe modified judgment. (2 Ency. PI. & Pr. 255; Billson v. Lardner, 69 N. W. 4YY; Hages v. Silver •& Go., 68 Pac. Hep. Y04, 136 Cal. 238; Mum v. 'Haley, 45 Cal. 63; Bixby v. Beni, 59 Cal. 532; Spencer v. Toniit, 65 Pac. Pep. 1083, 133 Cal. 605; In re Porter’s Estate, Y4 Pac. 986; Wake v. Thomas, Y8 Conn. 15, 60 A. Pep. 689; Johnson v. Foreman, 56 N. E. 254 [Ind.].) To ■permit tbe bolder of a lien to bar absolutely tbe right of another lien bolder is a gross injustice and tbe authorities do not permit it. (De Voe v. Bunlcle, Y4 Pac. Pep. 836; Brandestine v. Johnson, Y3 Pac. Pep. Y44; Frates v. Sears, YY Pac. Pep. 905.) It is rather a novel doctrine tbat one who has a first mortgage must keep on tbe lookout as to who acquires an interest in tbe property, and tbat no duty is imposed on those acquiring tbe interest to notify tbe first mortgagor. 'Such doctrine is opposed by tbe following authorities: First National Bank v. Woodman, 96 Iowa 668, 62 N. W. 28; Kernat v. Porterfield, 56 Iowa 412, 9 N. W. 322; Biddy v. Sinclair, 16Y Ill. 184, 4Y N. E. 364; 9 Ency. Law (2 Ed.), 314," It is almost universally held tbat an extension made, while the mortgagor owns tbe premises, is good as against subsequent purchasers. (Heger v. Pruyn, Y Paige 465, 34 Am. Dec. 355; Hough v. Bailey, 32 Conn. 288; Carson v. Oochran, 52 Minn. 6Y, 53 N. W. 1130; 19 Ency. L. [2 Ed.], 315, and authorities cited.)
    
      
       Graves v. Seifred, 31 Utah 203, 87 Pac. 674.
    
    
      
       Bacon v. Raybould, 4 Utah 357-361, 10 Pac. 481, 11 Pac. 510.
    
   FEIGN, J.

Tbis case was beard and submitted at a former term of tbis court, and on November 1, 1908, we filed an opinion in the case by wbicb tbe judgment refusing a foreclosure of appellant’s mortgage was affirmed and tbe judgment in favor of respondent Jacobsen reversed. A petition for a rebearing was filed by tbe appellants. Upon a consideration thereof we entertained some doubts as to tbe correctness of our conclusions, and granted a rebearing. Tbe ease was again argued by respective counsel at tbe last term of tbis court. After reargument we bave become convinced that tbe views expressed by us in tbe former opinion should be modified in some respects, and for that reason, and to avoid confusion, that opinion will not be published, but tbis opinion will stand and be published as tbe decision of tbe cause.

Before proceeding to tbe merits we are required to pass upon a motion to dismiss tbe appeal, upon tbe alleged ground that it was not taken within six months from tbe entry of judgment. Tbe facts disclosed by tbe record upon wbicb the-motion to dismiss is based are, in substance, as follows: Tbe action is one to foreclose a mortgage. Tbe court made and filed findings of fact and conclusions of law, and entered judgment thereon on March 16, 11907. Thereafter, on tbe 8th day of June, 1907, appellants moved tbe court to make additional findings of fact and conclusions of law in accordance with tbe facts requested tO‘ be found. Tbe court entertained tbe motion of appellants, but held tbe matter under advisement until September 21, 1907, when it allowed tbe additional facts and made them a part of tbe findings in tbe case, but refused to allow tbe additional conclusions of law. No motion for a new trial was made in tbe court below. Tbe notice of appeal was served and filed on March 8, 1908. It is contended by respondent Salt Lake Investment Company that, in tbe absence of a motion for a new trial, tbe judgment became and remained final from tbe date of its entry, to-wit, March 16, 1907, and, as the appeal was not taken within six months from that date, tbe appeal is of no effect, and should be dismissed. Upon the other band, appellants’ counsel insists that pending the motion for additional findings and conclusions of law the judgment was not final for the purposes of an appeal, and that it did not become so until the court either allowed or disallowed the additional findings and conclusions of law. It is contended that, while the question whether additional findings and conclusions of law should be made or not was pending, the judgment was subject to be changed by the court, and hence not a final nor an appealable judgment. Respondent’s counsel answers his contention by the assertion that the court had no authority to entertain the motion, nor to allow or make additional findings of fact or conclusions of law after the entry of judgment, and therefore the judgment was final, notwithstanding the pendency of the motion of appellants. Section 3168, Rev. St. 1898, was amended by chapter 150, p. 228, Laws 1907, which amendment expressly authorized the trial court to do just what was done in this case. "While counsel for respondents does not question the court’s authority to make additional findings of fact and conclusions of law as provided by the amendment referred1 to, he insists that the amendment cannot be applied to this case for the reason that the original judgment was entered on March 16, 1907, while the amendment did not go into effect until March 25th, of the same year. Waiving the question as to whether the court had the inherent power to entertain a motion for additional findings of fact and conclusions of law after the entry of the judgment during the term at which it was entered, or while the action remained pending in that court as here- . after stated, we have no doubt the court had the power to entertain the motion in this case in view of the amendment referred to. While it is true that a party’s rights in a judgment, as a general rule, may not be affected by legislative "acts passed or which become effective after the entry of judgment, the rule does not apply to laws which are merely remedial, and which .only affect matters of procedure or practice. The amendment in no way affected respondents’ rights in the judgment. The only way that respondents were affected was by extending tbe right of appeal to appellants while the motion, to amend the findings and conclusions was pending. The legislature, within proper limits, might have extended this right directly. In any event, the amendment related to a matter of procedure merely, and this would apply to' all pending actions unless limited to future actions. In 1 Lewis’ Suth. Stat. Const, section 674, the author says: “Where a new statute deals with procedure only, prima facie, it applies to all actions — those which have accrued or are pending, and to future actions.” Further on in the same section it is said: “A remedy may be provided for existing rights, a new remedy added to or substituted for those which exist. Every case must, to a considerable extent, depend on its own circumstances. General words in remedial statutes may be applied to past transactions and pending cases, according to all indications of legislative intent, and this may be greatly influenced by considerations of convenience, reasonableness and justice.” In section 686 of the same volume it is said: “Statutes enacted to promote and facilitate the administration of justice áre prominent in the category of remedial statutes.” Section 3490, Comp. Laws 1907, provides: “An action is deemed ’to- be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” This action was therefore pending) when the act amending section 3168 went into- effect; and, as such amendment pertained merely to- a matter of procedure, we are clearly of the opinion that the amendment applied to this as well as to all other pending actions. Moreover, the right to an appeal is a constitutional, as well as a valuable right, and ought not to be denied except where it is clear the right does not exist, or has been lost or abandoned. The motion to dismiss the appeal is therefore denied.

In proceeding to the merits it will be necessary to refer to the pleadings and findings. The action was commenced July 14, 1905, and the appellants, in substance, alleged in their complaint that on September 5, 1894, the defendant Esther .Cohen Jacobsen, executed and delivered her promissory note for $612 payable in one yqar to the order of Lewis P. Kelsey and James K. Gillespie; that to secure the payment thereof the maker made and delivered to the payees a mortgage upon certain permises in Salt Lake City; that appellants are the owners of said note and mortgage; that shortly after said note matured the payer, Esther Cohen Jacobsen, departed from the state of Utah, and remained a nonresident thereof and absent therefrom continuously for a period of five years; that no part of said note was paid; that the respondent Salt Lake Investment Company claims some rights to or interest in the mortgaged premises, but • that its right or claim is junior and inferior to appellants’ right. Appellants prayed for judgment for the amount of the note with interest,. and for a foreclosure of the mortgage and a sale of the mortgaged premises. Personal service was had' upon all the defendants, and all of them appeared by filing a joint answer, but the Salt Lake Investment Company (hereafter styled respondent) alone seems to have appeared at the trial and defended the action. The joint answer, after making certain admissions, set forth the following defenses: (1) That the appellants were not the owners of the note in question; (2) that the premises had been sold for taxes, and that respondent had acquired a tax deed for the same; (3) that the action was barred by virtue of subdivision 2, section 2875, Eev. St. 1898, which provides that an action upon an instrument in writing must be commenced within six years after the cause of action accrues; and (4) that on the 5th day of July, 1905, in an action theretofore ■commenced and pending in Salt Lake County against said Esther Cohen Jacobsen, the respondent obtained a judgment and decree by which the title to said premises, as against said Esther Cohén Jacobsen, was quieted in respondent. Appellants filed a reply in which the affirmative allegations of the answer are denied. The court, in substance, found .that the note and mortgage were executed and delivered as alleged; that appellants are the owners thereof; that no payments had been made thereon; that the payer, Esther Cohen Jacobsen, shortly after said note became due, in the fall of 1895, removed from tbe state of Utah, and has since such removal been a nonresident thereof, and for more than five years was absent therefrom; that on the 25th day of February, 1897, the respondent obtained a tax deed for said premises for delinquent taxes for the year 1894, and that on July 5, 1905, in an action theretofore commenced and pending in Salt Lake county, Utah, wherein respondent was plaintiff and said Esther Cohen Jacobsen, the maker of said note, was defendant, the respondent obtained a decree quieting the title to said mortgaged premises in respondent as against said Esther Cohen Jacobsen. As a conclusion of law the court found that the action was barred generally, and entered judgment in favor of respondent and against all of the appellants for costs, and refused to enter a judgment of foreclosure, and also refused a personal judgment against said Esther Cohen Jacobsen upon said note, from which judgment this appeal is prosecuted.

Appellants have assigned numerous errors, but rely principally upon the following: (1) That the court erred in not finding as conclusions of law that the plaintiffs were entitled to a decree of foreclosure; (2) that they were entitled to a personal judgment against Esther Cohen Jacob-sen for the amount due on the note; and (3) that the court erred in its conclusions of law in holding the action barred generally, and further, that the court erred in entering judgment in favor of respondents and against the appellants, and in not entering judgment in accordance with the requested conclusions of law as indicated above.

Referring to the last assignment first, we remark that this court is committed to the doctrine that any person who claims title to, or an interest in, or a lien upon, any real estate may invoke the aid of the statute of limitations as against a claimant whose claim is prior in time to the person invoking the aid of the statute, when the prior daim has been barred by the statute of limitations. (Graves v. Seifred, 31 Utah 203, 87 Pac. 674.) Counsel for appellants contends that the decision just referred to goes too far in tbat it permits a junior claimant to invoke tbe aid of tbe statute so as to defeat tbe action agaipst a debtor in a case where tbe running of tbe statute bas been suspended against bim by reason of bis absence from tbe state. Tbe view contended for by counsel seems to be tbe view tbat was taken by tbe tidal court, and benee a judgment was denied as against tbe debtor upon tbe sole ground tbat tbe action was barred, not only as against respondent’s claim, but likewise as against tbe debtor, although tbe court found tbat tbe original debtor bad been a nonresident of and absent from tbe state ever since tbe cause of action bad accrued. It was not held in Graves v. Seifred, supra, tbat because an action is barred in favor of a junior claimant, it is likewise barred in favor of a debtor. This question was not presented in tbat case, and hence not decided. Indeed, on page 212 of 31 Utah, page 676 of 87 Pac., Mr. Justice Straup, in referring to tbe bar of tbe statute so far as it affected tbe note, said: “It may be assumed tbat tbe action, on tbe face of the note, is not barred.” If tbe action was not barred as against tbe note, which was only evidence of tbe debt, then the' action to recover such debt could not have been barred as between tbe debtor and creditor. Counsel for appellants, however, insists tbat in any event tbe bar of tbe statute can be invoked by tbe junior claimant only to tbe extent of bis lien on tbe property. In other words, the junior claimant may invoke tbe aid of tbe statute so as to postpone tbe senior lien, if barred by tbe statute, to tbat of tbe junior lien, and when tbe junior lien bas been satisfied out of tbe property, tbe surplus, if any, must be applied in satisfaction of tbe senior or barred lien. This contention is based upon tbe equitable principle tbat, so long as tbe debt is not barred as between tbe debtor and creditor, tbe right to subject tbe property pledged as security to tbe satisfaction of tbe debt is not lost. This no doubt is sound equitable doctrine, and in some states is enforced, not only as between tbe debtor and creditor, but also as between tbe senior and junior claimants if tbe junior claimant bad either actual' or constructive notice of tbe senior lien upon tbe property.

Kerndt v. Porterfield, 56 Iowa 412, 9 N. W. 322; First Nat. Bank v. Woodmen, 93 Iowa 668, 62 N. W. 28, 57 Am. St. Rep. 287, and Richey v. Sinclair, 167 Ill. 184, 47 N. E. 364, are cases which illustrate the doctrine, and apply the principle as between the claimants so long as the debt is not barred against the debtor. Other courts, however, apply a different rule, as appears from the cases cited by Mr. Justice Straup in Graves v. Seifred, supra. But in deciding that case this court was not called to pass upon the rights of different claimants of the property or the effect the statute of limitations might have with respect to their interests. ■ All that wras presented in that case was whether a subsequent claimant could invoke the aid of the bar of the statute as against a prior one, and all that was decided vras that the subsequent claimant could invoke the statute to protect his interest or claim in or to the property constituting the subject of the action. The questions with respect to the effect of the statute of limitations as between different claimants, and when and under what circumstances the statute may be invoked by different claimants, and what, if any, effect the extension of the time of payment by the original mortgagee, to the mortgagor, or the tolling of the statute through the mortgagor’s absence from the state, has upon the various claimants, now arises for the first time. Upon this question the courts are in apparent conflict; ■ some enforcing one rule, some another. Where it is held that a junior claimant takes subject to all px*ior claims of which he had actual or constructive notice, and continues SO' to hold until the prior claim is barred against the original debtor, there is but little difficulty in determining the_ junior claimant’s rights. So long as the prior claim is enforceable as against the original debtor, it is equally enforceable as against the junior claimant in so far as it affects his claim. Many of the courts now enforce the rule, however, that a junior claimant may invoke the aid of the statute notwithstanding the debt is not barred as against the original debtor. But even among those courts there is some diversity of opinion, and the results reached by them do not always square with the rule upon which the results are apparently based. This, however, it seems to us, arises largely from the fact that some courts follow the rule to a certain extent, and in a particular ease, for what to them seems a good reason, depart from it in favor of some rule adopted by some other court, while others follow the rule to its logical conclusion in all cases where it can be applied. The weight of authority undoubtedly is to the effect that, before any one else has acquired an interest in the mortgaged property, the first mortgagee may, by agreement with the mortgagor, extend the time of payment, or may receive any payment or new promise which has the effect of reviving the debt or extending the time of payment, and such extensions will be binding upon any subsequent claimant. No such extension, however, will, without his consent, affect the right of the junior claimant to successfully interpose the bar of the statute if such extensions are made after he has acquired his interest in the mortgaged premises, and of which the first mortgagee had either actual or constructive notice. As we have said, we are committed to the doctrine that a subsequent claimant may invoke the bar of the statute as against a prior claimant. The question therefore is under what circumstances and to what extent may he do so?

This action was commenced pursuant to section 3498, Comp, laws 1907, which, in part, provides:

“There can he but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. Judgment shall be given adjudging the amount due, with costs and disbursements, and the sale of the mortgaged property.”

The section following provides that a general execution may issue against the debtor only after a sale of the mortgaged property. TJnder statutes similar to the foregoing the Supreme Court of California bas frequently beld that there is no personal liability upon the part of the mortgagor except after a sale of the mortgaged property, and then only for any deficiency remaining after the proceeds of the sale have been applied to the discharge of the debt. And, further, that the personal liability of the mortgagor cannot, without his consent, be enforced until after the sale, and for the deficiency only. Among the numerous California cases that might be cited we refer to the following: Biddel v. Brizzolara, 64 Cal. 362, 30 Pac. 609; Brown v. Willis, 67 Cal. 235, 7 Pac. 682; McKean v. German Am. Sav. Bank, 118 Cal. 334, 50 Pac. 656.

This court in an early case has also recognized the doctrine that there is but one action permitted for the recovery of a jiebt secured by mortgage. (Bacon v. Raybould, 4 Utah 357-361, 10 Pac. 481, 11 Pac. 510.) From this case it is apparent that an action to foreclose a mortgage in this state is essentially an action in rem, and can be prosecuted just as successfully upon constructive service in so far as the property only is sought to be reached as it can by personal service upon the mortgagor; the only difference being that in case of constructive notice merely no personal judgment in the action may be obtained against the mortgagor for any deficiency that may exist after sale, while, if personal service is obtained upon him within the state, a judgment may be rendered, and a general execution issued thereon. But the fact that a personal judgment cannot be had without personal service is of no great importance, since in case of deficiency the amount thereof continues as a subsisting debt owing by the nonresident mortgagor, and an action may be maintained against him for the amount thereof, and a judgment obtained and enforced as though no mortgage had been given. (Blumberg v. Birch, 99 Cal. 416, 34 Pac. 102, 37 Am. St. Rep. 67.). We have referred to these cases for the purpose of showing that there is no valid reason why the time to foreclose the mortgage should be extended upon the ground that tbe mortgagor is a nonresident of, and absent from, tbe state.

Tbe rule, therefore, tbat requires a first lienholder to foreclose bis lien within tbe statutory time as against a junior claimant works no greater .hardship upon tbe senior claimant where the mortgagor is absent from tbe state than it does when be is present. No -doubt tbe absence of tbe mortgagor tolls tbe statute as to him, but it does not do so as to tbe junior claimant’s interest, who has a right to interpose tbe statutory bar against any claim which is adverse to bis, when such a bar exists. This is but just to tbe junior claimant, and, for tbe reasons already stated; it in no way affects tbe rights of tbe senior claimant. Tbe only difficulty tbat can arise is to determine tbe point of time at which the statute begins to run in favor of the junior claim and tbe extent to which tbe junior claimant may invoke tbe aid of tbe statute in case tbe statute has been tolled in favor of tbe senior claimant by tbe original debtor’s absence from tbe state. With regard to the extent that a junior claimant may invoke tbe statute, it must depend upon the character of bis interest in the mortgaged premises. If be has acquired tbe mortgagor’s equity of redemption — • ' tbat is, if be is a subsequent grantee, or, if be has acquired tbe title by operation of law — no doubt, in view of tbe statute, be may do so to tbe full extent of bis interest; tbat is, be may prevent tbe senior claim from being made effective to any extent as against tbe mortgaged property. If, however, be has a lien merely, and tbe equity of redemption is in another, or is still outstanding in tbe mortgagor, and tbe right of action of tbe senior claimant is not barred as against tbe mortgagor, then tbe junior claimant may invoke the aid of the statute only to the extent of protecting bis own claim. In such event be may only postpone tbe senior claim, and thus malm tbe junior In effect tbe senior claim. If there be a surplus arising from a sale of tbe property after tbe junior claim is satisfied, tbe senior, which, by reason of tbe bar of tbe statute, has become the junior claim, is entitled to this surplus.

Tbe question as to when the statute begins to run in favor of the subsequent grantee or junior lien claimant, in view' of the conflicting authorities and the inherent equities, is one not so easy of solution. After a careful reading of the decisions upon the question, and upon a full consideration of the fundamental principles involved, we have arrived at the following conclusions: That the bar of the statute may be invoked by the subsequent grantee or junior lien claimant in all cases when the bar could be invoked by the debtor, unless the subsequent grantee has, by agreement or otherwise, estopped himself; that such grantee or claimant may also invoke the bar in case the senior claimant has had either actual or constructive notice of the subsequent grant or lien, although the right of action may still be alive as against the debtor, provided the full period of time required by the statute has elapsed since the interest of the subsequent grantee or lien-holder was acquired, and the senior claimant has had either actual or constructive notice of such interest for that period of time; that in case such interest be acquired before the original debt matured, the statute in favor of the junior claimant begins to run from the time the right of action against the original debtor accrued; that the first mortgagee may extend the time of payment by agreement with the debtor, or may receive any payment or new promise which will either extend the time of payment or revive the debt, and if any such agreement or new promise is made, extension given, or payment received, before the interest of the subsequent grantee or junior lien attaches, or before the senior claimant has either actual or constructive notice, the agreement, new promise, or extension will be binding upon the subsequent grantee or junior lien claimant, but if these things occur after the interest has been acquired and the senior claimant has had notice as aforesaid, such agreement, new promise, or extension will not toll the statute as against the subsequent grantee or lien claimant without his consent; that after the subsequent interest is acquired, the senior claimant may not without the consent of the subsequent claimant, in any way affect tbe subsequent claimant’s rights in tbe property, except in so far as' tbe law authorizes this to be done; that, upon tbe other band, no agreement of tbe original debtor and tbe first mortgagee which affects tbe property is of any concern to tbe subsequent claimant if entered into before bis interest attached; and that in all of tbe instances above it is immaterial whether tbe mortgagor is a nonresident of, and absent from, tbe state or not só far as tbe subsequent claimant is concerned. Neither tbe presence nor tbe absence of tbe mortgagor. affects tbe running of tbe statute as between tbe first mortgagor and a subsequent claimant, but has the effect only of tolling tbe statute as between tbe debtor and tbe first mortgagor.

Tbe foregoing conclusions, it seems to us, are fairly supported by tbe following cases: Filipini v. Trobock, 134 Cal. 441, 66 Pac. 587; Hibernia, S. & L. Society v. Farnham, 153 Cal. 578, 96 Pac. 11; Colonial & U. S. Mortg. Co. v. N. W. Thresher Co., 14 N. D. 147, 103 N. W. 915, 70 L. R. A. 814, 116 Am. St. Rep. 645; Paine v. Dodds, 14 N. D. 189, 103 N. W 931, 116 Am. St. Rep. 674; Wood v. Goodfellow, 43 Cal. 185; Cook v. Union Trust Co., 106 Ky. 803, 51 S. W. 600, 45 L. R. A. 212; Johnson v. Johnson, 81 Mo. 331; Brandenstein v. Johnson, 140 Cal. 29, 73 Pac. 744; Fraters v. Sears, 144 Cal. 246, 77 Pac. 905; De Voe v. Rundle, 33 Wash. 604, 74 Pac. 836. It is not claimed that all of tbe foregoing cases pass upon all tbe propositions advanced, nor that any one case does, but in all of them one or more of tbe propositions before stated are either enforced or recognized. Tbe fact of tbe absence of tbe debtor from tbe state is, however; discussed and passed upon in three of tbe foregoing cases, namely, Filipini v. Trobock, Paine v. Dodds, and Colonial & U. S. Mortg. Co. v. N. W. Thresher Co. And we feel constrained to follow tbe rule upon that point as it is applied in those cases. In tbe other cases this point is not discussed, and we have found no others which either directly disquss or pass upon it.

As we understand counsel for appellant, bis contention is that nonresidence of and absence from tbe state by tbe debtor should be given the same effect in tolling the statute as an agreement extending the time of payment, or a new promise to pay the debt, or a part payment thereof would have if these things occurred before the subsequent interest in property was acquired. A mere cursory analysis of the propositions above stated will disclose that the effect of absence is practically the same as part payment would be. As we have seen, an extension, new promise, or part payment will toll the statute only as to the subsequent claimant if made before he obtains his interest. If made thereafter, the statute runs as to him precisely as if no extension had been given or new promise or payment made. This is based upon the equitable principle that a subsequent claimant takes his interest subject to all the rights of the prior claimant as those rights existed when the subsequent interest was acquired. Under our statute the mortgaged property constitutes the primary fund or thing to which the mortgagor must first resort for a discharge of the debt. He can have personal recourse against his debtor only after this fund has been exhausted. Until this is done he has no personal right of action against the mortgagor unless the mortgagor consents thereto. If, therefore, another acquires some interest in this fund which is subsequent to his mortgage, such other is a necessary party to an action by which the fund is sought to be appropriated to the payment of the prior mortgage, and such a party may invoke any legal or equitable defense which will protect his interest precisely the same as a prior claimant may to protect his. With respect to each other they are interested in the same fund, and each may protect his interest to the full extent. The absence of the original debtor from the state can thus have no effect upon the respective rights of the parties to the fund which is within the state, and to which the first mortgagor must resort for the payment of his claim in so far as it affects a subsequent claimant. So far as it affects the absent debtor, and so long as no one else has, acquired an interest in the property, it may be reached, or the debtor’s interest therein may be resorted to at any time within which the personal right of action exists against the debtor. ' But the right to maintain an action against the debtor by reason of his absence from the state does not also continue the right as against the subsequent claimant. As to him and his interest, if the right of action has thus accrued against the debtor, the action must be commenced within the six years from the time such interest was acquired if the prior claimant had notice of it, or within six years after such notice was acquired; and, if not so commenced, the subsequent claimant may invoke the bar of the statute to the full extent of his interest. But it is contended, by counsel for appellants that in no event may the subsequent claimant invoke the bar of the statute as against a prior claim except to protect the junior claimant’s interest. This is true, but he may invoke it to the full extent of that interest; and, if he has acquired the equity of redemption from the original mortgagor, or in some other way has succeeded fi> the title, he may protect this title.

Applying the doctrine to this case, it appears from the answer and the court’s findings that the respondent claims a right to the morgaged property by virtue of a certificate of tax sale dated December 21, 1891,' and a tax deed issued thereon dated February 25, 1897, for unpaid taxes for the year 1894. The interest of respondent thus dates from the time the property was sold for taxes. The mortgage was executed September 5, 1894. Respondent's interest was acquired subsequent to the interest of .appellants’ assignors, whose interest is thus prior in time. Counsel does not contend that appellants did not have notice of the issuance of the tax deed, but he contends that the deed is void, and hence constitutes nothing more .than a lien against the property, which lien the respondent has a right to> protect, but can claim no more. If there were nothing but this tax deed in the way, counsel’s contention would be sound, and entirely in harmony with the doctrine heretofore stated. But before this action was commenced the title to the premises in question had beem quieted in respondent, in an action instituted for that purpose against the original mortgagor, the owner of the property. But counsel for appellants insists that, although the title and equity ,of redemption has passed from the original mortgagor, and is now vested in respondent, this in no way affects appellants’ rights, since they were not made parties to the action to quiet the title; that they still have the right to insist that the tax deed constitues a mere lien against the property. While it is axiomatic that a person’s rights in the subject of the action may not be affected by a judgment to which he was not made a party, yet the real question involved always is, how are such rights affected by the judgment? As we have seen, appellants’ interest in the property attached September 5, 1894. The right of action accrued one year thereafter, and not later than September 6, 1895. At that time respondent had already acquired its interest. The mortgagor left the state “shortly after” the right of action had accrued; but, as we have pointed out, this did not have the effect of tolling the statute as against respondent, who, at the time the right accrued, was a necessary party to any action to foreclose the mortgage. Appellants therefore had the full -statutory period, namely six years from the time the cause of action accrued, within which to commence an action to foreclose the mortgage, and if brought within that time the mortgage would have been the senior lien. They could also have brought the action at any time afterwards, by reason of the mortgagor’s absence from the state, so long as the right of action continued alive against him, but if commenced after the six years, respondent’s claim to the extent thereof would have been superior to appellants-’ claim. This, counsel contends, was the status of the matter when this action was commenced', for the reason that the tax deed constituted no more than a prior lien against the property. We think not. 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, or if acquired before, but the statute had fully run since this interest had attached, 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 Esther Cohen Jacobsen, 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 chances that the' interest, 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 hence we are of the opinion that, in so far as the lower court refused to enter a judgment of foreclosure, the ruling' is clearly right.

But is the judgment in favor of Esther Cohen Jacobsen the original debtor also right?' We think not. As to her the right of action still subsisted.' The statute was tolled’as to her by reason of her absence from the state, and no other defense was interposed by ber. Tbe right to sue ber, therefore, was a subsisting right when the action was commenced, and as the plea of the statute of limitations constituted no defense in her favor, the judgment in her favor is erroneous. The result, therefore, is precisely the same as that arrived at in the former opinion, but based upon somewhat different grounds.

It follows that, in view of the record as it now stands, the court erred in not making findings and conclusions in favor of appellants and against the defendant Esther Cohen Jacobsen for the amount due upon the note, and in not entering a personal judgment against her for the amount that the court might find due, with accrued' interest and costs. The case is therefore remanded to theo trial court, with directions to make the necessary findings and conclusions of law in conformity with the views herein expressed, and to modify the judgment by entering a judgment against the defendant Esther Cohen Jacobsen for.the amount that the court may find due on said note, with accrued interest and costs. Neither party to this appeal to recover costs in this court.

STBAUP, C. J., and McCANTY, J., concur.  