GRAY, C. J., in HALL V. BLISS, 118 Mass. 554 (1875). Although equity will not allow the holder of a mortgage containing a power of sale to become a purchaser at a sale under the power, unless expressly so authorized by the terms of the mortgage; Downes v. Grazebrook, 3 Meriv. 200; Dyer v. Shurtleff, 112 Mass. 165; there is no doubt that, under a mortgage containing such provisions as that now before us, [expressly authorizing the mortgagee to purchase] a purchase made by the mortgagee and for his sole benefit is valid and effectual to cut off all right of redemption, provided the mortgagee faithfully discharges in all respects the duties imposed upon him as donee of the power; and that in the case at bar, if the land had been conveyed by him to one purchasing in his behalf, and immediately reconveyed to him by the latter, the power would have been well executed. Dexter v. Shepard, 117 Mass. 480. Wilson v. Troup, 7 Johns. Ch. 25, and 2 Cowen, 195.

The plaintiff contends that the deed executed in this case was void, because it was made by the mortgagee directly to himself. But this position is founded upon a misapprehension of the legal nature and effect of a mortgage with power of sale, and of a deed made in execution of the power.

Such a mortgage vests a seisin and a conditional estate in the mortgagee, with a power superadded to convey an absolute estate by a sale pursuant to the terms of the power. The execution of the power does but change, in accordance with the terms of the mortgage deed, the uses upon which the estate is to be held. The purchaser at the sale takes, not as the grantee of the mortgagee, but as the person designated or appointed by the mortgagee in execution of the power, and derives his title from the mortgagor, as if the Haas, 100 Ga. 111; Lowe v. Grinnan, 19 Iowa 193; Strother v. Law, 54 Ill. 413; Hall v. Bliss, 118 Mass. 554; Carlisle v. Libby, 185 Mass. 445; Bolles v. Carli, 12 Minn. 113; Sims v. Field, 66 Mo. 111; Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45; Grandin v. Emmons, 10 N. Dak. 223; Bancroft v. Ashhurst, 2 Grant (Pa.) 513; Woonsocket Inst. for Savings v. American Worsted Co., 13 R. I. 255; Hampshire v. Greeves, 104 Tex. 620. See Howell's Ann. Stats. Mich. § 13928.

In some states the statutes require personal notice to some or all of the parties interested in the equity of redemption, and the power may itself expressly make such requirement.

It has been held that all requirements of the statutes regulating the sale under a power (which in some states are very elaborate) must be complied with, even though the power makes other provisions or expressly waives them. Webb v. Haeffer, 53 Md. 187; Pierce v. Grimley, 77 Mich. 273; Lawrence v. Farmer's Loan & Trust Co., 13 N. Y. 200; Kerr v. Galloway, 94 Tex. 641. But see Elliott v. Wood, 53 Barb. (N. Y.) 285, 305; Ib. 45 N. Y. 71. On the other hand, it would seem that provisions of the power which are not in conflict with the statute must also be complied with-in other words that the parties may add to, but cannot take from, the statutory requirements. Pierce v. Grimley and Lawrence v. Farmer's Trust Co., supra. But see Butterfield v. Farnham, 19 Minn. 85, holding that additional requirements are of no effect.

designation or appointment had been inserted in the original deed, and the seisin or interest to serve the estate is raised by that deed. Butler's note to Co. Lit. 271a. 1 Sugd. Pow. (7th ed.) 242. 2 Sugd. Pow. 22, 23. 4 Kent. Com. (12th ed.) 327, 337.

MENZEL v. HINTON.

SUPREME COURT OF NORTH CAROLINA, 1903.

132 N. Car. 660.

[Action to quiet title to land. The defendant claims title by a sale under a power of sale contained in a mortgage.]

CONNOR, J. The Code, Sec. 152 (3) provides that the period prescribed for the commencement of "an action for the foreclosure of a mortgage or deed of trust for creditors with a power of sale of real property, where the mortgagor or grantor has been in possession of the property, within ten years after the forfeiture of the mortgage, or after the power of sale becomes absolute, or within. ten years after the last payment on the same. We are unable to discover in this language any period of time fixed within which the mortgagee is required to execute the power of sale. It will be observed that this section prescribed the time for bringing an action, (1) for the foreclosure of a mortgage, (2) or deed in trust for creditors with power of sale. The instrument executed by Foreman to Hinton is a mortgage containing a power of sale and is not within the language of the statute. It was not necessary for the mortgagee to institute an action for the foreclosure of the mortgage or the execution of the power; hence no time is fixed by the statute within which he must execute the power. The word "action" in the paragraph evidently has reference to the action for foreclosure and not to the execution of the power of sale, which requires no action. To construe the statute otherwise would be to write into it language which we do not find there.

It must be conceded that the language used by this court in Hutaff v. Adrian, 112 N. C., 259, would seem to sustain the contention of the plaintiff. In that case, the bond for the security of which the mortgage was given was barred by the statute of limitations, the last payment thereon having been made more than ten years before the threatened execution of the power. The mortgagor applied for an injunction to restrain the sale by the mortgagee under the power, which was refused. The only question presented in that case was whether the mortgagor had any equity upon which to base his application for the interference of the court. The case is correctly decided. If the execution of the power was not barred by the statute,

he was of course not entitled to an injunction; if it was barred and his right to execute the power at an end, the legal title would not pass by the sale. It will be observed that this case was decided prior to the passage of the Act of 1893, Chapter 6, permitting action to be brought to remove a cloud from title. Clark, J., in that case says: "The court will therefore not interpose by an injunction merely to prevent a cloud upon the title."

Hutaff v. Adrian, supra, is cited in Smith v. Parker, 131 N. C., 470. No question was involved in that case regarding the Statute of Limitations, nor was it cited for that purpose. Conceding that an action in personam upon the note held by Hinton against Overton was barred by the statute, it would not affect the decision of this cause. It is well settled that an action upon the debt may be barred without affecting the right to maintain an action to foreclose the mortgage given to secure it. Capehart v. Dettrick, 91 N. C. 344. This because the bar of the statute affects only the remedy and not the right. Parker v. Grant, 91 N. C., 338; Rouss v. Ditmore, 122 N. C., 775; 19 Am. & Eng. Enc., 146; Sturges v. Crowningshield, 4 Wheat. 206. Hence it is that in an action upon a debt barred by the statute, for the payment of which a "new and continuing promise" is relied upon, the "cause of action" is the original debt, and the new promise is relied upon to repel the bar. Falls v. Sherrill, 19 N. C., 372. In Kull v. Farmer, 78 N. C., 339, the distinction between an action on a debt barred by the statute and one discharged in bankruptcy is pointed out; in the latter "the cause of action" is the new promise, the old debt being a consideration to support the promise. The reason for the distinction is obvious. Prior to the adoption of our Code, there was no statute of limitations in regard to sealed instruments, bonds and mortgages. There was a presumption of payment or satisfaction after the lapse of ten years. Rev. Code, Ch. 65, Sec. 18. This presumption affected the right as distinguished from the remedy. Copeland v. Collins, 122 N. C., 619; Long v. Clegg, 94 N. C., 764. Of course if the debt is paid or satisfied either by actual payment or by presumption of law, the mortgage which is incidental to the debt is likewise discharged and, in equity, the purpose for which the legal title was conveyed being accomplished, would be treated as discharged and the mortgagor, as the owner of the land. Ray v. Pearce, 84 N. C., 485;. Edwards v. Tipton, 85 N. C., 480; Simmons v. Ballard, 102 N. C., 109. That such is not the law under our statute of limitations is settled by the uniform and unanimous decisions of this court.

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The question is clearly set forth and discussed in the case of Goldfrank v. Young, 64 Tex., 432, in which Stayton, A. J., said: “In reference to the operation of the statute of limitations in any matter in which the recovery of money is sought, the statute itself limits it

to 'actions or suits in courts,' and it provides within what time 'actions or suits' in the different classes of cases may be brought, but it does not attempt to determine within what period any one must enforce a right which the debtor has placed it in the power of the creditor to enforce otherwise than by an 'action or suit in court.'

** The declaration that persons must institute 'suits or actions in courts' within a fixed period to enforce their claims, which can be enforced only in that manner, is not equivalent to declaring that a creditor who has been given by contract a right and means by which he may enforce his claims otherwise than through the courts, shall not enforce it after the time at which he might institute an action or suit, without subjecting himself to the bar which would be urged by a plea of limitation. It is not always true that rights which can not be enforced through the courts are valueless, nor that contracts which the courts can not enforce are invalid." In this case the Supreme Court of Texas held, "That the statute of limitation which applied to a money demand operates upon the remedy when its enforcement is sought by 'suits or actions' in courts. It does not deprive the creditor of a remedy when he had provided by contract, to enforce through a trust deed the payment of his claim."

This case was approved in Fievel v. Zuber, 67 Tex., 275, the court saying: "The statute does not say that no debt shall be collected, but that no action shall be brought. Nor does it provide that the debt shall be extinguished. Any statutes of limitation worded like ours are generally held to operate solely upon the remedy in the courts and not to destroy the debt." Tombler v. Ice Co., 17 Texas Civ App., 596. To the same effect is Hartrauft's Estate, 153 Pa., 540; Slagmaker v. Boyd, 38 Pa., 216; Gardner v. Terry, 99 Mo., 523. In Grant v. Burr, 54 Cal., 298, it is said: "The expiration of the statute time for bringing an action to recover a debt, or to enforce any personal obligation, does not operate as an extinguishment or payment; therefore, where the legal title to land has been conveyed to a trustee to secure a debt, the title and power of the trustee is not affected by the expiration of the period prescribed to bar the debt, and a court of equity will not interfere to enjoin a sale under the deed. The statute of limitations is to be employed as a shield and not as a sword; as a means of defense and not, as a weapon of attack."

In Hayes v. Frey, 54 Wis., 503, it is held, "The validity of a sale under a power in a mortgage is not affected by the fact that the statute of limitations had run upon the note secured by the mortgage." Jones on Mortgages, § 1204; Bush v. Cooper, 26 Miss., 599.

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The point upon which we rest our decision is, that as the mortgagor has expressly put it in the power of the mortgagee to sell

the land for the payment of the debt and thereby relieved him of the necessity of bringing an action for that purpose, his right is not affected by the statute of limitations, which applies only to actions brought for the enforcement of rights. The legislature may, if in its wisdom it should see fit, place the execution of the power of sale, in respect to the time within which it must be exercised, upon the same footing as actions to foreclose a mortgage with power of sale; but we can not, in the absence of any legislative declaration, make the law. It is ours simply to declare it.

This opinion does not overrule or question Hutaff v. Adrian, supra, in respect to the point decided in that case, to-wit, that the plaintiff was not entitled to injunctive relief. In so far as it is said. that after the expiration of ten years the mortgage is dead, the right is destroyed we can not concur.

The judgment of the court below is affirmed.28

[Clark, C. J. and Douglas, J., delivered dissenting opinions.]

EDITORIAL NOTE-FORECLOSURE BY SCIRE FACIAS.-The usual method of foreclosure in Pennsylvania, and a permissible method in a few other states, is that by scire facias. This is a proceeding in a court of law, leading to a judicial sale of the mortgaged land which conveys to the purchaser the title which the mortgagor had

28 Compare, Hill v. Gregory, 64 Ark. 317; Emory v. Keighan, 88 Ill. 482; Hebert v. Bulte, 42 Mich. 489; Hall v. Bartlett, 9 Barb. (N. Y.) 297. In some states the statutes concerning redemption from foreclosure sales are not broad enough to cover both judicial sales and sales under powers. As a matter of legislative policy it is apparent that the right of redemption is more needed in the latter case than in the former.

A court of equity may interpose by injunction to prevent or regulate the exercise of a power of sale. But, in the absence of such judicial interference, the mortgagee or trustee, as in any case of remedy by act of the party, controls the whole proceeding in respect to all those features which in the case of a foreclosure by suit are regulated by the court: e. g. the notice of sale, the time and place of sale, the manner of sale, the distribution of the proceeds &c. Of course, any departure from the requirements of the law and the contract will either invalidate the sale, or render the mortgagee or trustee liable to account or to pay damages, or both, and all matters concerning the conduct of the sale are, of course, open to judicial investigation in any case to which they are material.

The recovery by the mortgagee of any deficiency of the mortgage debt remaining after the sale, and the recovery by the purchaser of possession of the land, matters which in the foreclosure by equitable suit are usually disposed of as incidents of the suit, are, in the case of foreclosure by sale, the subject of common actions at law.

The chief disadvantage, from the point of view of the mortgagee and the purchaser, of the sale under a power, as compared with the foreclosure by suit, lies in the fact that, by the former, nothing is adjudicated, either as to the status of the mortgage as against the mortgagor or other claimants of an interest in the land, or as to the validity of the foreclosure proceedings.

For a digest of the statutes and equitable principles governing sales under powers, see Jones, Mortgages, chaps. 39, 40.