
    (First Circuit — Clinton Co., O., Circuit Court,
    April Term, 1901.)
    Before Smith, Swing and GifEen, JJ.
    JOHN E. HALL ET AL. v. GEORGE BRADFIELD ET AL.
    
      Bights of mortgagee to sue for possession after debt barred—
    (1.) A mortgagee may maintain a suit to recover possession of the mortgaged premises after the note secured by the mortgage is barred by the statute of limitations.
    
      Title does not revest in mortgagor after debt barred--(2.) When a debt secured by mortgage on land is barred by the statute of limitations, the title to the mortgaged premises does not revest in the mortgagor,the condition of the mortgage being for the payment and not the bar of the debt.
    
      Action upon mortgage survives after debt barred—
    (3.) Although a mortgage is a mere security for the payment of a debt, an action upon the mortgage survives after one upon the debt is barred, unless the limitation in each case is the same.
    
      When action for possession under mortgage may be brought—
    
    (4.) The legal title to mortgaged premises remains in the mortgagee, even after the debt has been transferred, and entitles him to bring an action for possession thereof at any time before the debt is paid, and within twenty-one years from the time the right of action accrued.
    
      Same — When mortgage competent evidence of right of possession—
    
    (5.) In an action by the mortgagee to recover possession of the mortgaged premises,after the condition of the mortgage is broken and after the debt secured thereby is barred, the mortgage is competent evidence of the rigtifc of plaintiffs possession at the time such suit was commenced, if such aotion was commenced within twenty-one years from the time the right of action accrued.
    Error to the Court of Common Pleas of Clinton county,
   Giefbn, J.

The only question argued in this case was — Can a mortgagee maintain a suit' to recover possession of the mortgaged premises after the note secured by the mortgage is barred by the statute of limitations? It is conceded by counsel, that, after condition broken, the legal title to mortgaged premises is in the mortgagee, and he may maintain ejectment.

It may be conceded further that a mortgage is now treated both in lay and in equity as mere security for the debt and the mortgagee is permitted to use the legal title only for the purpose of making effectual such security. When therefore the debt is paid, the legal title to the mortgaged premises revests in the mortgagor without conveyance from the mortgagee; but the same result does not follow when the debt is barred by the statute of limitations, because the condition of the mortgage is for the payment and not the bar of the debt and the latter not being equivalent to the former.

It has been held in this state that a mortgage securing the payment of an account may be foreclosed after the account is barred, and it follows that ejectment may also be maintained. The legal title necessary to support ejectment still remains in the mortgagee. In the case of Kerr v. Lydecker, 51 Ohio St., 240, the syllabus is as follows:

“A mortgage is a specialty, and an action for its foreclosure and sale of the premises comes within the provisions of section 4980, Revised Statutes, and the period of limitation is fifteen years, unless extended by virtue of section 4992 Revised Statutes.”

The same limitation applies in an action upon a specialty as upon a promissory note, and a mortgage being a specialty, an action to foreclose it is barred in fifteen years; but if the'-limitation upon a specialty was twenty-one years, then an action to foreclose a mortgage could be maintained within that time although an action upon the note secured thereby was barred, and if the limitation was less than fifteen years the action could not be maintained although an action upon the note was not barred by the statute. It seems quite clear then that, although a mortgage is a mere security for the payment of the debt, an incident to it, yet an action upon the mortgage survives after one upon the debt is barred, unless the limitation in each case is the same.

The legal title to the mortgaged premises remains in the mortgagee even after the debt has been transferred, and entitles him to bring an action for possession thereof at any time before the debt is paid, and within twenty-one years from the time the right of action accrued, unless such an action must be treated a* one upon a mortgage or a specialty. In the case of Kerr v. Lydecker, supra, the court with great care distinguish the action to foreclose a mortgage from one to recover title or possession of real estate, thereby intimating that if it belonged to the latter class, the limitation of twenty one years provided in section 4977, Revised Statutes, would govern, although a mortgage is a specialty. And it is further said, at page 250:

“He (the mortgagee) may sue for the recovery of the possession uf the land in a teal action in the nature of ejectment, using his mortgage to prove h’S title; or he may sue for a foreclosure of his mortgage and a sale of the mortgaged premises,”

In this case there can be no question of the form or nature of the action, it being plainly one under the statute to recover possession of real estate the plaintiff relying upon the mortgage to prove title. It is not an action, upon the mortgage itself; but is a suit to recover the possession of real estate conveyed by the mortgage. They had two distinct remedies, either of which they could adopt, although the limitation was not the same in each. The fallacy of the position assumed by the defendants seems plain when we consider that the question did not and -could not arise until the mortgage was offered in evidence and the court excluded it upon the ground that an action upon the notes-secured thereby was barred.

The mortgage was certainly evidence of title at the time its conditions were broken, and whether it was evidence of the right of possession at th6 time suit was commenced depended on the statute of limitations as to that form of action. We think the mortgage was competent evidence, and the court erred in rejecting it,

Judgment reversed and cause remanded for a new trial, Philly v. Sanders et al., 11 Ohio St., 490 to 494.

Swing, J.,

dissents.

I do not concur in the judgment arrived at by Judges Smith and G-iffen-in this case. It seems to me that the decision of the supreme court in the case of Kernohan v. Manns et al., 53 Ohio St., 118, is decisive of the question here raised,and that it is directly opposed to the conclusion arrived at by a. majority of this court. Other decisions rrnghtfoe cited to the same effect, but I think this one is sufficient.

8. L. Gregory, for Plaintiff in. Error.

S. W. Huls, for Defendant in Error,

(Petition in error filed in Supreme Court, 45 W. L. B., 268.)

Note— S. W. Huls, for Defendant in Error: A suit of eject ment may be maintained on a mortgage if brought within fifteen years, but not after that period.

The mortgagee does not hold the absolute and complete title even after condition broken. Citations: Wright, 249; 8 Ohio, 222; 10 Ohio, 437; 4 Ohio St., 602; 37 Ohio St., 386; 43 Ohio St., 160; 47 Ohio St., 312; 49 Ohio St., 426; 50 Ohio St., 129; 51 Ohio St, 240; 53 Ohio St., 118; 53 Ohio St. 673; 60 Ohio St., 34.  