dissenting.
I am unable to concur in the conclusion reached that defendant Mrs. McCreary, as a condition of the relief *322granted to her, be required to pay to plaintiffs the amount bid at the foreclosure sale. I think she is entitled to the relief without any such condition, and that her right to that relief is fully shown in the statement of facts contained in the opinion, and amply supported by the authorities therein cited. It cannot be questioned that, under the facts recited in the opinion, Mrs. McCreary could have maintained ejectment .against the plaintiffs without paying or offering to pay the amount of their bid at the foreclosure sale. Under the statements contained in the opinion, which are fully supported by the record, plaintiffs were not, as against Mrs. McCreary, mortgagees in possession. At the time of the commencement of the foreclosure suit, she was the owner of the property in fee, and, as such owner, was entitled to the possession. She was not made a party to the foreclosure suit, hence her right of possession had not been cut off, or in any manner barred. In the case at bar, plaintiffs were not seeking to foreclose their lien against her, but were asserting absolute ownership and right of possession, and asking to have their title and right of possession quieted and confirmed. To this action Mrs. McCreary had a right to interpose any legal defenses without offering to do equity. If plaintiffs were seeking to foreclose their lien against her, and she was asking any equitable relief, then the maxim, “He who seeks equity must do equity,” would apply. But Mrs. McCreary is not asking any equitable relief. She is not asserting any right, or asking any relief which she could not properly assert and ask in an action in ejectment. The conclusion of the court is based upon the prayer of her answer: “That she may go hence without day, and that she be declared the owner, and that her possession be confirmed, and that she have such other and further relief as may seem meet.” I am unable to discover any prayer for equitable relief in that language. She does not ask the court to find and adjudge anything more than she could have established and have had determined in an action in ejectment. She had alleged in her *323answer, and the evidence clearly established the fact, that more than ten years had elapsed from the execution of the sheriff’s deed in the foreclosure suit on March 22, 1893, prior to the commencement of the present suit. If plaintiffs had been attempting in the present suit to foreclose the lien of their mortgage against Mrs. McCreary, this lapse of time, under section 10873, Ann. St. 1907, would have given Mrs. McCreary a complete defense to such attempted foreclosure, and I do not think the court has any right to enlarge that section of the statute by construction so as to require her to pay the amount of plaintiffs’ mortgage as a condition precedent to her interposition of that statute as a defense. The maxim, -“He who seeks equity must do equity,” when applied in a proper case, is wholesome, and should be adhered to. It is one of the tenets of our jurisprudence. But it is apparent from the wording of the maxim itself that, before one may be required to do equity, he must be seeking equity. This means that one coming into a court of equity, asking for affirmative equitable relief, will be required to do equity in all respects pertaining to the subject matter of the litigation. One who seeks affirmative equitable relief against a lien upon his premises, although the foreclosure of the lien is barred by the statute of limitations, may be required to do equity by paying whatever is in equity due upon the lien. But the maxim does not mean that the statute of limitations may not be pleaded as a defense against the foreclosure of the mortgage. In such a case the defendant may plead the bar of the statute to defeat the foreclosure; but, if he goes further and asks for affirmative relief against the lien, the maxim may be applied. The maxim does not mean that one may not resist the demands of his adversary by interposing whatever legal rights he may have as a defense, the purpose and effect of which will be to defeat the affirmative demands of the adverse party. Were it otherwise, the statute of limitations might never be successfully pleaded as a defense in foreclosure. In the case at bar, plaintiffs are not seeking to foreclose the *324lien. They claim the fee title. But, as above shown, they have, as against Mrs. McCreary, neither the legal nor equitable title. At most, they have only a barred lien. By their pleadings they do not claim any lien. They seek to have the title quieted in them. Plaintiffs argue that, in the event the title cannot be quieted in them, defendant should not be granted the relief she asks without first paying the amount bid at the judicial sale, with interest théreon. But they ask no such relief in their petition. Surely the défendant may interpose her defense to plaintiffs’ action, to the extent of showing that plaintiffs are not entitled to recover, without being required to pay the mortgage which had been foreclosed more than ten years prior to the commencement of this suit in a foreclosure proceeding to which Mrs. McCreary was not made a party. Mrs. McCreary did not file a cross-petition. She did not ask equitable relief. She pleaded and established her legal defenses, and prayed that she be declared the owner and that her possession be confirmed. This cannot possibly be construed into an appeal for equitable relief. The fact that the decree granted defendant more relief than she prayed cannot change the status of Mrs. McCreary to her disadvantage. In so far as the decree attempted to quiet her title, it is not supported by the pleadings, and is erroneous. The judgment of this court should be that that part of the decree of the district court which quiets the title of Mrs. McCreary to the property in controversy, and vacates the deed from William Kerr and Elizabeth Kerr to Thomas B. Kerr, and from Thomas B. Kerr to Elizabeth Kerr, be reversed, and that in all other respects the decree stand affirmed.