—According to the opinion of the court, the plaintiff’s action was barred by section 361 of the Code of Civil Procedure, because, and only because, an action by defendants to foreclose would have been barred by said section. I am not satisfied with the *201reasoning by which the conclusion is reached, that the defendants were barred of their action to foreclose before this action was commenced; but conceding it to be correct, it does not follow, in my opinion, that the plaintiff’s right of action was thereby lost.
. That the right to redeem and the right to foreclose were barred at the same time was undoubtedly the law of this state prior to the codes; but since they were enacted, the right to redeem is unaffected by the extinguishment of the right to foreclose. (Code Civ. Proc., sec. 346; Civ. Code, sec. 2903; Raynor v. Drew, 72 Cal. 310; Booth v. Hoskins, 75 Cal. 271; De Cazara v. Orena, 80 Cal. 134; Hall v. Arnot, 80 Cal. 354; Warder v. Enslen, 73 Cal. 291.) In other words, the codes have prescribed another rule for the limitation of actions to redeem from mortgages and other liens. By the old rule, the right to redeem was barred when the right to foreclose was barred; and whether this resulted from the fact that each was covered by the same clause of the statute, or from the equitable doctrine of mutuality of rights and remedies under such contracts, the rule itself had no other effect than to fix a period of limitation to the right to redeem. This rule has been changed, and the period of limitation enlarged by a law passed since the making of the contract here involved, but before the right of action of either of the parties had been lost, and before the commencement of this suit. The question therefore is, which rule applies, — the old of the new.
That these provisions of the codes were intended to apply to all actions commenced after they took effect is to my mind perfectly clear. It is true, the codes are not retroactive (Oiv. Code, sec. 3; Code Civ. Proc., sec. 3), and it is also true that vested rights should never be impaired by giving a retroactive effect to a law. But a law enlarging the period of limitations upon existing contracts is not a retroactive law, and it impairs no vested rights. Unless restricted in its operation by its own terms, a new rule of limitations necessarily applies to all actions thereafter commenced, and to all causes of *202action not already extinguished by the running of time under the pre-existing rule. This being so, we have only to look to the express provisions of the codes to see how far the new rules by them prescribed are restricted in their operation upon actions commenced after they took effect.
In section 6 of the Civil Code we find the following provision: “No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions.” Section 8 of the Code of Civil Procedure contains the same language. The clear implication is, that actions not commenced and rights not vested prior to the adoption of the codes are to be controlled by their provisions.
The more specific provision respecting the application of the new rules of limitation is found in section 362 of the Code of Civil Procedure, and is as follows: “ This title does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run, but the laws now in force are applicable to such actions and cases, and are repealed subject to the provisions of that section.” Here the implication is equally clear that the new rules apply to all actions not already commenced, and to all cases where the time prescribed by existing statutes for barring the remedy has not fully run. In this case the time had not run, and the action had not been commenced. The conclusion, therefore, cannot be avoided, that the rule of the code applies unless its application would have the effect of changing the contract or impairing its obligation.
The respondents contend and the court holds that such would be its effect. They say that the law of the state of California, as it existed at the date of their deed from John H. Allen, defining the mutual rights and obligations of the parties to the transaction, entered into and became a part of the contract, and that such law gave them, the respondents, an important right which the above-cited provisions of the codes would take away *203or materially abridge. If this is true, it must be conceded that the code- provisions ajee inapplicable. But is it true? What are the rights conferred by the law of 1869 which the codes take away or impair? They do not take away or impair the right of a mortgagee to foreclose; they merely enlarge the time within which the mortgagor may redeem, and this is all the respondents have to complain of. By the law of California prior to the codes, they say a mortgage in the form of an absolute conveyance invested the mortgagee with the legal title to the land,"leaving in the mortgagor a mere equity of redemption, which was barred and extinguished at the same moment that the debt was barred, thereby creating in the mortgagee a title complete, absolute, and indefeasible, without the necessity of a foreclosure; and therefore, they insist it must be held that this right to obtain a complete title without foreclosure was among the advantages they bargained and paid for, and is a right of which they could not be deprived by subsequent legislation, as they would be if subjected to the code provisions (Code Civ. Proc., sec. 346; Civ. Code, sec. 2903), under the operation of which they could never perfect their title except by foreclosure, or by five years’ adverse possession of the mortgaged premises after condition broken.
The completeness of this argument is marred by the fact that it assumes too much for the law of California before the codes. The decisions relied on by respondents do not go to the extent claimed for them. The cases cited are Hughes v. Davis, 40 Cal. 117; Espinosa v. Gregory, 40 Cal. 58; Pico v. Gallardo, 52 Cal. 206, etc. A critical examination of this line of decisions will show that the only case in which a mortgagee by deed absolute could acquire an indefeasible title to the mortgaged estate without foreclosure was when he had possession. This was the case in Espinosa v. Gregory, 40 Cal. 58. The mortgagee was in possession, the right to foreclose was barred, and it was held that the mortgagor had thereby lost the right to redeem. The mortgagee got the land without foreclosure. But in Hughes v. Daviss *20440 Cal. 117, and Pico v. Gallardo, 52 Cal. 206, the mortgagors were in possession, and the mortgagees were suing in ejectment after their right to foreclose was barred. It was held that the mortgagees had the legal title to the lands, and that they were entitled to recover possession in the absence of allegations in the answers setting forth the equities of the defendants, with an offer to pay the amount of the mortgage liens, and prayer that the conveyances be declared mortgages. In other words, a right of redemption on the usual terms, against the mortgagee out of possession, was distinctly admitted, although the right to foreclose was barred.
Mow, what right of these respondents, under the law as declared in the cases referred to, would be taken ■ away or impaired by sustaining plaintiff's action to redeem? They never had possession of the mortgaged premises, and had no right to the possession. If, after their right to foreclose was barred,— if it ever was barred,— they had anticipated the plaintiff in taking possession of the land, their title might thereby have become perfect, under the doctrine of Espinosa v. Gregory, 40 Cal. 58, but if plaintiff had anticipated them in taking possession, their only remedy would have been to sue in ejectment, in which case he could have set up his equity and effected a redemption according to the doctrine of Pico v. Gallardo, 52 Cal. 206, upon precisely the same terms that can be imposed in this action. The only difference between this case and the case supposed is that plaintiff, without taking possession and without waiting to be sued, offers the respondents in advance all that he would be compelled to pay in order to redeem if he had taken possession and waited for them to sue. To allow this would surely not be to deprive the respondents of any valuable right.
Enough has been said, I think, to show that respondents never brought themselves within the rule of Espinosa v. Gregory, 40 Cal. 58, because they never had possession of the land; but if the fact had been otherwise, all the decisions of this court are to the effect that a law *205extending plaintiff’s right of redemption would be valid. Take the case of tax sales. Prior to March, 1885, the purchaser of land sold for delinquent taxes became at once entitled to a tax deed if the property was not redeemed before the expiration of the year. In March, 1885, the law was so amended as to require the purchaser to give thirty days’ notice to the owner or occupant of the land of his intention to apply for a deed. This amendment to the law was held to apply to sales made before its adoption. (Oullahan v. Sweeney, 79 Cal. 539.) It is impossible to distinguish that case from this; and if it was correctly decided, there can be no doubt of the power of the legislature to extend- the right of a mortgagor to redeem. (See also Moore v. Martin, 38 Cal. 438; Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 515.)
In the briefs of counsel a large number of decisions are cited from the reports of other states, bearing more or less directly upon this point, with respect to which it can only be said that they are so conflicting as to furnish no ground for reversing our own decision in Oullahan v. Sweeney, 79 Cal. 539.
A decision on this point by the supreme court of the United States would of course be binding authority, as the immunity asserted arises under the constitution of the United States; but no such decision has been cited. What was said by Judge Taney in Bronson v. Kinsey, 1 How. 316, has been pronounced obiter, and its authority denied by this court. (See dissenting opinion of Judge Heydenfeldt in Thorne v. San Francisco, 4 Cal. 156, adopted in Moore v. Martin, 38 Cal. 438.) Of the cases cited in the Department opinion heretofore filed, that of Phinney v. Phinney, 81 Me. 450, 10 Am. St. Rep. 266, comes nearer than any other to sustaining the contention of respondents; but even that might be distinguished, for the law there held unconstitutional was one by which the equity of redemption could be indefinitely extended at the suit of a stranger to the mortgage.
Finally,- it may be said that if the doctrine under discussion is to control the decision of this case, it may be *206invoked by the appellant with quite as much justice as by respondents. The cases of Hughes v. Davis, 40 Cal. 117, and Espinosa v. Gregory, 40 Cal. 58, were not decided until the year following the deed of John H. Allen, and they directly overruled a long line of decisions by this court, holding that a mortgage by deed absolute did not pass the legal title. The construction given to our laws by these decisions was the law itself at the date of that deed, and fixed the rights of the parties so that they could not be changed by a subsequent construction any more than by subsequent legislation. (Douglas v. Pike Co., 101 U. S. 687; Gelpcke v. Dubuque, 1 Wall. 175.)
For these reasons, I conclude that the finding of the superior court that plaintiff's cause of action was barred by section 361 of the Code of Civil Procedure is not sustained by the evidence, and therefore, that a new trial should have been granted, and that the order appealed from and the judgment should be reversed, and the cause remanded for a new trial.