* Headnotes 1. Limitation of Actions, 25 Cyc., p. 1315; 2. Limitation of Actions, 25 Cyc., pp. 1351, 1360. This is an appeal from a decree dismissing a bill, wherein the complainant seeks to set aside a sale of land made under a deed of trust and for an accounting from the purchaser thereat. In April, 1909, the appellants executed a deed of trust to the appellee on the land here in question, to secure an indebtedness due from them to the appellee. In September, 1911, default having been made in the payment of the debt secured by the deed of trust, the appellants surrendered the land covered thereby to the appellee, which immediately entered into and has since continued in the possession thereof. Soon thereafter the trustee in the deed of trust advertised the land for sale under the deed of trust, and sold it pursuant thereto on the 6th day of November, 1911; the appellee becoming the purchaser thereat. On November 5, 1921, the appellants brought this suit to set aside the sale under the deed of trust and for an accounting by the appellee for rents and profits, offering to pay whatever sum might be found due on the indebtedness secured by the deed of trust. *Page 900
The sale under the deed of trust is admittedly defective, and the appellee's defense is the statutes of limitations and adverse possession; that is, that it had been in possesion of the land more than ten years when this suit was begun. The appellee obtained possession of the land in the latter part of September, 1911, and therefore had been in possession of the land more than ten years when the suit was begun on November 5, 1921.
The appellant claims that the continuity of the appellee's possession and the running of the statute of limitation was broken, and was not continuous for ten years for two reasons: First, because a former action for the same cause as that here sued on was commenced by the appellants within the time allowed therefor, and was dismissed for matter of form after the present suit was begun; second, that the foreclosure of the deed of trust by the trustee therein at the request of the appellee, on the 6th day of November, 1911, was an acknowledgment of the appellants' title to the land and of their right to redeem it, and consequently the ten years in which this suit can be brought must be computed from that date.
The general docket of the court below was introduced, from which it appears that a suit was then pending wherein C.G. Cossar et al. were complainants, and the appellee and H.J. Ray, trustee, were defendants. No part of the record in the case was introduced, so it does not appear from the evidence that the cause of action therein sued on was the same as that here. No order dismissing this suit was introduced, but counsel for the appellant stated that it had been abandoned. Section 3116, Code of 1906 (section 2480, Hemingway's Code), provides that:
"If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the *Page 901 plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein," etc.
Leaving out of view the fact that the suit here relied on to prevent the bar of the statute of limitation was not dismissed but was still pending, the evidence relative thereto is insufficient to bring it within the statute, for it does not appear that the suit was on the same cause of action as is the one here.
It may be that at common law, as contended by the appellants, the sale of the land under the deed of trust given thereon by the appellants was an admission of their title thereto and their right to redeem it, and therefore, except for the statute hereinafter set forth, the time within which the appellants have to redeem the land should be computed from the date of that sale, as to which we express no opinion.
Section 3092, Code of 1906 (Hemingway's Code, section 2456), provides that:
"When a mortgagee, after condition broken, shall obtain the actual possession or receipt of the profits or rent of land embraced in his mortgage, the mortgagor, or any person claiming through him, may not bring a suit to redeem the mortgage but within ten years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given in writing, signed by the mortgagee, or the person claiming through him; and in such case a suit may not be brought but within ten years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; but such acknowledgment shall be effectual only as against, and to the extent of the interest of the party signing it."
Under this statute, the only acknowledgment of the appellant's title to the land that will toll the statute of limitation *Page 902 is one in writing, signed by the appellee, and none such is here claimed to have been made.
Affirmed.
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