forcing the mortgage brought him so much nearer to the time when his remedy would be gone. In short, the instant the right to enforce the mortgage arose, that instant the mortgagee was put on inquiry to ascertain against whom the action to enforce it must be brought. It is incorrect to say that this reasoning foists a new contract on the mortgagee without his consent. As stated before, his contract in the mortgage was that the land should be answerable for the debt if the personal debtor failed to pay, but the mortgagor did not agree to continue his ownership of the land nor to personally sell the land. He merely gave the mortgagee a remedy for the collection of the debt from the land by an action to be brought against whomsoever might be the owner when the remedy became available. And the mortgagee's neglect to avail himself of that remedy within the time fixed by the statute is a good defense to the action. Such is the plain language and manifest intent of the statute. Fowler v. Wood, supra. It is also just as clear that it is the intent of the statute that the remedy shall not be barred by the lapse of time in favor of a necessary party defendant who is not within the reach of process, so he can be personally served. Yet the Kansas cases lead to the result that, although the owner of the fee is a necessary party, yet his absence from the state does not toll the statute. Hogaboom v. Flower, 72 Pac. 547. One more point remains to be noticed. Respondent contends that on the facts of this case it must be presumed that the amount of the mortgage debt was retained by West's grantee from the purchase price for the purpose of satisfying the mortgage, and that the land thereby became the primary fund for the payment of the debt; that the land stood charged with a trust in the hands of West's immediate and remote grantees, including this appellant, for the payment out of the land of the mortgage debt; that this trust was one for the protection of West as well as the plaintiff; and, inasmuch as West is still liable for the debt, and could not plead the statute as a defense in this state, therefore the plea of statute of limitations by this defendant ought not in equity to be permitted. To sustain this contention, the court would have to assume the power to ignore the statute of limitations because in its opinion equity requires it. There are only two things which could stay the running of the statute against this action: Absence of the defendant, or an acknowledgment or new promise within ten years, which new promise or acknowledgment can be proved only by a partial payment or written evidence. In this case neither of these are present, and the court has no power to recognize any exceptions to the statute other than those which the legislature has made. Teign v. Drake, 13 N. D. 502. The plaintiff's cause of action accrued in November, 1888, against the Minnesota Thresher Company, and became barred in November, 1898, before this defendant acquired the land. The judgment is reversed, and the district court is directed to enter judgment in favor of the appellant and against the respondent for the dismissal of the action and for the taxable costs and disbursements. [Young, J., delivered a dissenting opinion.] SECTION 2.-SALE UNDER A POWER. JOHNSON v. JOHNSON. SUPREME COURT OF SOUTH CAROLINA, 1887. * MR. JUSTICE MCGOWAN. On November 17, 1879, one Joshua M. Johnson, in order to secure a note for $150, due to John H. Neighbors, executed to him a mortgage of a tract of land, containing 114 acres, and Louisa Johnson, the wife of the said mortgagor, relinquished her dower in the said premises. The mortgage contained a power of sale as follows: "But in case of the non-payment of the said sum, &c., * * then, and in such case, it shall and may be lawful for the said John H. Neighbors, his heirs, executors, administrators, and assigns, and the said Joshua M. Johnson doth hereby empower and authorize the said John H. Neighbors, his heirs, executors, administrators, or assigns, to grant, bargain, sell, release, and convey the said premises, with the appurtenances, at public auction or vendue, at which sale they, or any of them, shall have the right to become purchasers of the said premises, and on such sale to make and execute to the purchaser his, her, or their heirs or assigns forever, a conveyance in fee of the said premises, free and discharged from all equity of redemption, right of dower, and every other encumbrance," &c., &c. On January 6, 1881, the mortgagee, Neighbors, assigned the note and mortgage to the plaintiff, Margaret Johnson, and in the year 1882 Joshua M. Johnson, the mortgagor, died intestate, seized and possessed of the said premises; leaving as his heirs at law, his widow, Louisa Johnson, and five minor children, who are the defendants. On December 22, 1883, after the death of the mortgagor, Margaret Johnson, the assignee of the note and mortgage, advertised the land for sale in the town of Clinton, County of Laurens, at 12 o'clock m., of January 12, 1884, by posting written notices of the sale on the door of the court house, and at three other public places of the county. This advertisement made no reference to the previous death of the mortgagor, Joshua M. Johnson, or mention of his widow and children, his heirs at law. At the sale, the land was bid off by one Pitts for $325, who refused to comply with the terms of sale, and James L. Simpson agreeing to take his bid, on January 24, 1884, a deed was made to him by the plaintiff in her own name, without any reference to the previous death of Joshua M. Johnson, the mortgagor, or mention of his heirs, the widow and children. This deed was recorded. It seems that the sale was reasonably well attended, the widow, Louisa Johnson, with others, being present; and that the land sold for what was considered a fair price. Simpson agreed with the widow, Louisa, that she might remain on the land for the remainder of the year for a certain rent. Simpson, to whom the land was conveyed, never paid the purchase money, but on January 5, 1885, in pursuance of a previous agreement to that effect, conveyed it back to Margaret Johnson, who credited $195.90, the amount due on the mortgage debt owned by her as assignee, and brought this action against the heirs at law of the deceased mortgagor, Joshua M. Johnson: 1. To confirm the sale and conveyance made by her as assignee. 2. For leave to pay into court the excess of the purchase money over the mortgage debt. And 3. That the plaintiff may be put into possession of the said premises, and for the costs of the action, &c. The minor defendants made formal answer, but the widow, Louisa Johnson, answered resisting the claim, upon the ground that she and her children were in possession as the heirs at law of the mortgagor; and that they were never made parties to any proceeding of foreclosure, so as to divest them of the legal title; and the plaintiff, Margaret Johnson, has no title under the illegal and void sale by her, and that her action should be dismissed. As we understand it, this is an action for the recovery of real estate upon title claimed to arise out of a sale made under a power contained in a mortgage; but if it should be found that said sale was irregular, and the title thereby acquired defective, then incidentally to cure the defect and validate the title. It is familiar doctrine that in an action for the recovery of the possession of real estate, the plaintiff must recover upon the strength of his own title, considered with reference to the time the action was brought. If the title was then perfect, no confirmation is necessary, but if it was then imperfect, we do not clearly see how the court can, by subsequent proceedings, so validate it as to affect retrospectively the right existing when the suit was brought. See Moon v. Johnson, 14 S. C., 434. It has always seemed to us somewhat anomalous doctrine, that a mortgagor of real estate may include in the mortgage a power to the creditor himself to sell the mortgaged premises without any order of foreclosure in a regular proceeding, such power being entirely ex parte, and carrying, as claimed, not only the right to ascertain the amount due on the mortgage debt, but to judge of the necessity for a sale, its time, place, terms, &c., and to execute title to the premises so sold. This anomaly is more striking in those States, as in South Carolina, where it is expressly provided by statute that a mortgage of real estate is a mere security, and even after condition broken, the legal title remains in the mortgagor or his heirs. We incline to think that experience in the administration of the law has shown that this effort by a summary proceeding to avoid litigation and expense, has really increased both, and demonstrated the wisdom of Lord Eldon, when he said: "How can it be right that such a clause shall be inserted in a deed under which a party is trustee for himself? * * * Here, too, it must be recollected that this is a clause to be acted upon—not by a middle person, who is to do his duty between the cestuis que trust-but the mortgagee is himself made trustee to do all these acts." The same learned chancellor, however, said at the same time: "But it is too much to say that if the one party has so much confidence in the other as to accede to such an arrangement, this court is, for that reason, to impeach the transaction," &c.23 While, however, the court will not now set aside a power authorizing the creditor, who is the interested party, to sell lands mortgaged, for the reason that it is the contract of the parties themselves, yet all the authorities agree that "as such power may be so easily used for purposes of oppression, the courts should scrutinize sales made under them very closely." Robinson v. Amateur Association, 14 S. C., 148. From the view the court takes, it will not be necessary in this case to consider whether the power of sale went with the mortgage to the assignee, Margaret Johnson, nor whether the mode of conducting the sale should have been conformed, as far as possible, to that of ordinary judicial sales, nor whether the vendor, Margaret Johnson, when Pitts failed to comply with the terms of sale, had the right to substitute for him as the last bidder Simpson, and without any consideration paid, to accept from him a conveyance for the premises sold. This circuity of conveyance was manifestly designed as the means of carrying back the title to Margaret Johnson, the vendor, and must be considered as substantially the same as if Margaret Johnson, the assignee and vendor, had bid off 23 Compare Chapter VI, note 1. In several states, the statutes expressly or impliedly nullify such powers. Hurd's Ill. Stats. (1912) chap. 95, § 22; Brown v. Bryan, 6 Idaho 1; Burns Ind. Stats. (1914), § 1135; Iowa Ann. Code (1897), S$ 4284, 4287; Kans. Gen. Stats. (1909), §§ 5992, 9711; Aultman & Taylor Co. v. Meade, 121 Ky. 241. Nebraska seems to be the only state in which the power of sale is judicially nullified, without statutory ground. See Cullen v. Casey, (Nebr.) 95 N. W. 605; Kirkendall v. Weatherley, 77 Nebr. 421. It should be observed, however, that in several of the states where a power of sale is valid it is not in common use. the property at her own sale, and then in her own name conveyed it directly to herself. The main question is, whether after the death of the mortgagor, Joshua M. Johnson, leaving his widow and children in possession of the premises, the mortgaged premises could be sold and conveyed by Margaret Johnson in her own name, without any reference whatever to the death of the mortgagor or his heirs at law, some of whom were infants. This must, to a large extent, depend upon the determination as to whose the legal estate was at the time of the death of the mortgagor. There can not be the slightest doubt that, at the time of the death of the mortgagor (so far as the mortgage itself was concerned), the title was in the mortgagor, and at his death descended to his heirs. It is true that, according to the common law, a mortgage was a "conveyance of an estate by way of pledge for the security of a debt, and to become void upon the payment of it." But it is quite as clear that in our State, by the act of 1791 (now embodied in section 2299 of the General Statutes), the legal title, upon the execution of a mortgage, remains in the mortgagor, and "the mortgagee shall not be entitled to maintain any possessory action for the real estate mortgaged even after the time allotted for the payment of the money secured; but the mortgagor shall be deemed owner of the land, and the mortgagee as owner of the money lent or due; and shall be entitled to recover satisfaction for the same out of the land by foreclosure and sale according to law." See Simons v. Bryce, 10 S. C., 368; and Warren v. Raymond, 17 S. C., 163. As we have seen that the clause in question did not transfer the title which remained in the mortgagor, but only gave a power of sale, that power assuredly could only be executed in the name of the principal. Webster v. Brown, 2 S. C., 429; De Walt v. Kinard, 19 id., 282. It is said, however, that Margaret Johnson did not execute the deed in the name of the principal, Joshua M. Johnson, for the very good reason that at the time of the sale he was dead, and most of his heirs, to whom the title had descended, were infants and incapable of conveying the title. This fact suggests another difficulty in the way of the plaintiff's recovery on her own title. We think that the power of sale given by Joshua M. Johnson was revoked by his death; and if so, of course, it was incapable of execution. The power of one man to act for another must depend on the will of that other, and when it is withdrawn the power ceases. As the power of sale in this case formed a part of a contract for consideration, it may be conceded that it could not have been revoked in the lifetime of the creator of it; but, nevertheless, we think it was revoked by his death. It certainly was, unless it belonged to that exceptional class where the |