Concurring. — Out of the mass of facts in this record the essential and material ones for an understanding and decision of this case are, briefly: Appellee, Meade, and one Scribner were tenants in common in the ownership of real estate in the city of Tombstone. Pending a suit instituted by Scribner for partition, Meade borrowed from appellant, Brandt, a sum of money evidenced by his promissory note, and secured by a mortgage of his interest in the common property of himself and Scribner. The Seribner-Meade suit went to judgment, in which the common property was ordered sold. At the sale Scribner purchased the Meade interest for $2,730.23 (which was paid to Meade), and became the owner *51of the whole estate, upon which Meade had given a mortgage to Brandt. Thereafter Brandt brought suit to recover on his note and mortgage, had judgment of foreclosure, order of sale under which the property was sold to Brandt for the amount of his judgment, interest and costs. The sheriff’s return of the order of sale showed what was done, and stated that the writ had been satisfied. In due course sheriff’s deed was issued to Brandt and by him placed of record. Thereafter the wife of Scribner, to whom the property had been conveyed, institrtted suit against Brandt to remove the cloud on her title created by the sheriff’s deed to Brandt, and to quiet title as against Brandt. In this suit the issue was what, if any, rights Brandt obtained by virtue of his mortgage from Meade; it being given pending the partition suit and with notice. This issue was decided adversely to Brandt; the court holding that he took the mortgage with notice, and subject to any right growing out of the partition suit. The certificate of sale and deed of Brandt were ordered canceled, and the title of Scribner was established and quieted, but the personal judgment against Meade was expressly preserved and continued by this language in the decree, to wit: “But that the personal judgment rendered in said action in favor of said Brandt against said Meade shall be in no way disturbed by this decree.”
This last case was appealed, and may be found in Brandt v. Scribner, 13 Ariz. 169, 108 Pac. 491.
The chronology material is: Brandt-Meade judgment was obtained February 27,1908. Sale and satisfaction thereunder was made and entered March 21, 1908. Scribner-Brandt judgment is dated February 13, 1909. The present suit was instituted February 20, 1913. There seems to be a supererogation of pleadings in the case. The first complaint set forth an action of debt upon the judgment obtained by Brandt in the Brandt-Meade suit. The defendant answered setting up the sale and purchase of the property thereunder by Brandt as full satisfaction and discharge of the judgment sued on. To this answer plaintiff, Brandt, replied, setting forth the Scribner-Brandt judgment that had canceled his certificate of sale and judgment and deprived him of all his security. The defendant’s objection to the reply as being a departure was sustained by the court, and the plaintiff granted leave to *52amend his complaint to embrace the facts contained in the reply. This the plaintiff did, and the case is here on the amended complaint. To the amended complaint the defendant answered, again setting np in bar the Brandt-Meade judgment and proceedings thereunder, and, in addition, plead the five year statute of limitation. The case was tried to the court without a jury, and judgment entered for defendant, on his plea of limitation.
I will consider the case under three propositions that are comprehensive enough to cover all the errors assigned, and, as well, the contentions of defendant appellee. The propositions are: (1) Had the statute of limitation run? (2) Was it necessary that plaintiff first bring an action in equity to set aside the satisfaction of the mortgage in the Brandt-Meade suit, including the order of sale, certificate of sale and deed, before instituting his action of debt upon the .judgment? And (3) Was plaintiff, upon the admitted facts, entitled to any relief whatever?
Paragraph 2558 of the Revised Statutes .of 1901, carried forward in Civil Code as paragraph 1353, provides that: “No execution shall be issued upon any judgment . . . unless . . . an action of debt be brought thereon within five years from the.date of such rendition and entry.”
The complaint was filed seven days before the expiration of five years from the rendition and entry of the judgment upon which the action was brought. The complaint, however, was not amended setting up the Scribner-Brandt judgment that canceled his deed until January 6, 1914, and, if the amendment had the effect of setting up a new cause of action, it clearly was barred. I am of the opinion that the amendment was simply an amplification of the cause of action, or, more correctly speaking, an anticipatory explanation made necessary by the court’s ruling striking the same matter from the reply as being a departure. The cause of action in the original and amended complaint was debt on a judgment. The explanation in the amended complaint of an abortive attempt to collect the debt out of property in which the defendant had no interest did not change the cause of action, but only anticipated and explained why a defense not yet interposed should not prevail as against his claim. This placing of the cart before the horse, so to speak, was occasioned by *53the defendant, and, of course, he could not now complain, nor does he complain. The court, the plaintiff, and defendant-treated the amended complaint as the only proper way to present the question of plaintiff’s right to recover, and the case should be disposed of here on the same theory.
It is the contention of defendant appellee that satisfaction of judgment resulting in the sale of the mortgaged property should have been set aside and canceled, either by an action in equity for that purpose or by motion; that the setting aside the satisfaction in the Scribner-Brandt suit, to which he was not a party, could not bind him.
Conceding all that is contended for, I am of the opinion that the amended complaint states facts sufficient to authorize a court of equity to set aside in this action the satisfaction entered in the Brandt-Meade Case. "While the complaint does not pray for such relief, it is made to appear that nothing was realized by plaintiff by reason of his foreclosure proceedings and sale thereunder, and, indeed, that is admitted by defendant; his only contention being that the entry of satisfaction ipso facto put an end to plaintiff’s demand, even though nothing had been realized. Considering, then, that the amended complaint set forth facts justifying the cancellation of the satisfaction of foreclosure proceedings, and facts constituting a cause of action for debt on the judgment, there is no reason why both may not be done in one and the same action. The commingling and administering law and equity is a common practice in this jurisdiction, whatever the rule may be in other jurisdictions.
If the amended complaint be so considered and treated, the question is: Should the satisfaction be' set aside and canceled, and the plaintiff be given judgment as demanded, or should we refuse relief, and hold that his sale and foreclosure of the property under his foreclosure proceeding put an end to his demands? The courts, in answering the question, are pretty evenly divided.
Black on Judgments, section 1010, says: “But if the invalidity of the sale is attributable to the fact that the debtor had no title or interest whatever in the property sold, the more approved doctrine appears to be that, where the creditor himself purchased the property, the judgment is finally and irrevocably satisfied, and the law courts have no power to set *54it aside or grant Mm relief. But tMs doctrine, it must be admitted, is opposed by a very respectable body of authorities. And, however it may be at law, the courts of equity will relieve a creditor from the consequences of his purchase at such an invalid sale.” Section 478, Freeman on Judgments, 4th ed.; 23 Cyc. 1491.
In Hollon v. Hale, 21 Tex. Civ. App. 194, 51 S. W. 900, the execution creditor who had purchased the property under his sale presented the question we have here by motion to set aside and cancel the satisfaction on the ground that she got no title to the property. On the hearing of motion the court rendered judgment setting aside and canceling the satisfaction and revived the judgment. The judgment was affirmed on appeal, the court saying: “We think it only equitable, where the defendant in execution has parted with nothing by the sale, that the plaintiff in judgment, who has acquired nothing by his purchase, should have his judgment restored to him as it was, previous to the sale and satisfaction.”
In the note to Plano Mfg. Co. v. Thompson, 21 S. D. 300, 130 Am. St. Rep. 722, 11 L. R. A. (N. S.) 396, 112 N. W. 149, the writer says: “But it seems to be the rule by the weight of authority that satisfaction may be set aside in such cases ’ ’; that is, in cases where the property levied upon and sold is not, in fact, the defendant’s property.
Some of the more recent cases sustaining this rule are Bailey v. Buchanan, 126 Mo. App. 190, 102 S. W. 36; Osborne v. Wilson, 37 Minn. 8, 32 N. W. 786; Massie v. McKee (Tex. Civ. App.), 56 S. W. 119; Sturdivant v. Ward, 90 Ark. 321, 134 Am. St. Rep. 32, 119 S. W. 247.
In Bailey v. Buchanan, supra, is contained this quotation from 19 Encyclopedia of Pleading and Practice, page 151: “Although, as has been seen, there is much conflict upon the question whether the plaintiff, as purchaser, may obtain relief at law or not upon the purchase of lands to which defendant-(in execution) had no title, the eases are unanimous in holding that relief may be had in equity. ’ ’
“To vacate the record of a satisfaction of judgment, either upon motion or in an independent action, involves the cancellation of a written instrument — one of the recognized subjects of equity jurisdiction — and involves the exercise of a sound discretion. Whatever mode of procedure be pursued, *55the remedy sought is governed hy equitable rules; the ultimate question being whether it is inequitable for the person relying thereon to avail himself of the entry of satisfaction. 2 Beach, Mod. Eq. Jur., see. 552; 2 Freeman on Judgments, sec. 478a.” Plano Mfg. Co. v. Thompson, supra.
In this case defendant lost nothing by the sale of the property, and the plaintiff gained nothing. In the circumstances it would be very inequitable to allow the defendant to avail himself of the satisfaction, as its effect would be a cancellation of his debt for no consideration.
For the reasons given, I concur in the order of Justice CUNNINGHAM.
FRANKLIN, J., concurs.