(dissenting). I am unable to concur in the conclusions of my associates in this case. It seems to me that their reasoning is unsound, because the case is not within the reason for the rules applied. The action is one to determine adverse claims under sections 5904-5913, Rev. Codes 1899,- as amended by chapter 5, p. 9, Laws 1901. This was conceded by the appellant until the first opinion was handed down in this case. The appellant then petitioned for a rehearing, claiming, among other things, that the action was not one to determine adverse claims, as it was assumed to be in the first opinion. Further consideration of the case on rehearing has served to confirm me in the conviction that the first opinion was right on this question, as well as on all the questions involved. This dissent will therefore be largely a reiteration of the proposition upon which we all then agreed.
The complaint, although otherwise in statutory form, unnecessarily disclosed that defendants claimed to have a lien on the land by virtue of the mortgage in question; but the complaint did not admit that it was then or originally a valid lien. The prayer for relief was that prescribed by the statute, to the effect that the defendants set forth their adverse claims, whatever they were, to the end that their validity be determined, and plaintiffs’ title *252be quieted. The defendants answered, admitting that the only adverse claim they had was the mortgage referred to in the complaint, and alleged that it was a valid lien in their favor. They included a counterclaim in their answer, praying that the plaintiff’s title (which it averred was based on a void tax deed) should be adjudged void, and that the defendants’ mortgage be adjudged a valid lien, but did not pray for foreclosure. The unnecessary allegation in the complaint as to what plaintiff believed was the nature of defendants’ adverse claim did not change the nature of the action. Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029. It 'was utterly insufficient as a bill in equity to cancel a mortgage, and it was not treated as such by the parties. The defendants were not by the allegations of the complaint limited to the litigation of the particular adverse claim mentioned in the complaint. Nor did the reference to the mortgage relieve the defendants of the necesshy of pleading any adverse claim, which they might have by mortgage or otherwise, under penalty of being barred as to such undisclosed claim, if any existed. The form of the answer shows unequivocally that the defendants construed the complaint to be one in an action to determine adverse claims.
This action is one provided by statute, whereb)' the plaintiff can require all adverse claimants to come into court and establish, if they can, that they have some valid adverse claim, by lien or otherwise, upon the premises in question. The only fact necessaiy for the plaintiff to prove or plead, in the first instance, is that he has some estate in or lien upon the property. In other words, he is required to show, if the fact is denied, that he has the right to.maintain such an action. The defendant must then establish prima facie the adverse claim which he pleads. Now, it seems to me that it is merely to state a truism to say that, if the adverse claim pleaded is a lien, it must be an enforceable one — a lien which the defendant can use as a means of compelling payment of the debt it secures in some appropriate action or proceeding instituted for that purpose. A lien which exists only on paper, but which cannot be enforced, is for all practical purposes no lien. It is, like a shadow, without substance. As said by Chief Justice- Corliss in Wells County v. McHenry, 7 N. D. 246, at page 265, 74 N. W. 241, at page 248: “A lien that cannot be enforced is no lien at all.” In Burwell v Tullis, 12 Minn. 572 (Gil. 486), a case very similar to this, Chief Justice *253Wilson said, speaking for the court: “The difference between divesting the lien and forever denying a remedy to enforce it is a mere verbal distinction without any practical or real difference. The legislative intent and practical operation of the law would’ be the same in both cases; the denial of the remedy to enforce the lien being the extinguishment of the lien itself.” The majority opinion postulates that all remedies to enforce this mortgage are barred by the statute of limitations. We all agree that the remedy by action is barred; and the Chief Justice and myself agree that this defense to an action to foreclose is available as a ground for an ex parte injunctional order against the exercise of the power of sale under section 5845, Rev. Codes 1899. Our reasons for this conclusion can be more appropriately stated in the accompanying case of Scott v. District Court (just decided) 107 N. W. 61.
It is true that the statute operates on the remedy only, and it is often said that the obligation remains, even though the remedies are barred. The obligation remains only in a limited sense. Although all remedies are barred, the obligation, though outlawed, is a good and sufficient consideration to support a new promise; and an action to enforce it may also be maintained after the time limited by the statute, unless the defendant pleads the statute in bar. The rule that the statute is tolled by a new promise and is waived by the defendant’s failure to avail himself of it is a logical result of the theory upon which such statutes are based. The reason for the enactment of statutes of limitations is that it is contrary to public policy to permit the litigation of stale demands. The object of the statute is to compel claimants to enforce their claims while the transaction out of which the claim arose is fresh, and while the best evidence of the' facts involved is available. The courts are forbidden to undertake the investigation and determination of the merits of a cause of action after the time limited, because after so long a time it is presumed that the evidence in relation to the transaction is not reliable. There is no ground for this presumption, however, when the defendant has acknowledged the validity of the claim by a new promise in writing, or a partial payment within a less period of time before commencement of the action than is required to raise the presumption. So, also, the defendant’s failure to rely on the statute is a waiver of the defense, because such failure to urge it is *254taken as an acknowledgment that reliable evidence as to the merits is still available. But in the absence of such new promise evidence by a writing or partial payment, and in the absence of a waiver of the defense, the court is forbidden to inquire into the merits of the claim. This being so, it is self-evident that the court cannot presume that the outlawed claim is valid. There is no presumption for or against the validity of the claim. The court is forbidden to hear proof or inquire as to the validity or invalidity of the demand.
Right here, it seems to me, lies the fallacy of the majority opinion. They assume that the mortgage is valid. It is only by making that assumption that it is possible to assert that equity requires the payment of it as a condition precedent to equitable relief. As stated above, this assumption is unwarranted, and consequently the entire argument of the majority falls to the ground. If the mortgage is presumptively valid, as asserted by' my Brethren, it seems to me that consistency requires that the presumption should be carried to its logical conclusion. If the mortgage is valid, the appellants are entitled to a decree establishing and confirming their lien, and also to a decree declaring Tracy’s tax deed invalid, instead of being dismissed from the court without relief if the plaintiff does not pay. Again, if the mortgage is presumptively valid, then clearly it is not a conclusive presumption. The defendant should be permitted to show the contrary. But that would involve a trial of the merits. My Brethren seem to agree that such a trial is not permissible. The result, then, is that the mortgage is presumed to be valid, and the respondent is denied an opportunity of showing the contrary. In other words, the presumption is in effect conclusive, after the limitation statute has barred all remedies, unless the respondents forego their statutory defense. The respondents must choose between the horns of a dilemma. They must either forego the statutory right to decline to litigate an outlawed mortgage, or they must pajr it in order to remove it as a cloud on their title. Viewed from a practical standpoint, the rule as established by the majority seems to me absurd. The mortgage is an unenforceable one, because public policy will not permit any inquiry into the merits of the claim. It must remain, however, as an eternal cloud on the title, unless the owner of the property will consent to litigate the merits notwithstanding the statute, or pay what the mortgagee sees fit to demand. Such was the conclusion *255reached by the Supreme Court of Indiana in Cassell v. Lowry, 72 N. E. 640, which, by the way, is the only case among those cited which supports the majority opinion. There is no parallel between a suit to determine adverse claims and an ordinary suit in equity to cancel a mortgage or lien for specific reasons. The pleading in such a case necessarily admits that the lien or other adverse claim attacked is valid, unless invalid for the reasons pleaded; and the attacking party assumes the burden of establishing the specific invalidity alleged.
Two reasons are given for declining to afford equitable relief from on outlawed mortgage in that form of action: First, it is said the statute of limitations is an odious and inequitable defense; second, it is said that the statutory bar is “a shield and not a sword,” and hence must be relied upon as a defense and not as a ground for affirmative relief. Neither of these reasons is applicable in this state to an action to determine adverse claims. The idea once prevailed that the statute of limitations was not a meritorious defense, but that idea has long since been abandoned by nearly all courts, and has been expressly repudiated in this state. Wheeler v. Castor, 11 N. D. 347, 92 N. W. 381, 61 L. R. A. 746. A court of equity is as much bound to observe and enforce the statute as a court of law. The reason for prohibiting litigation of stale demands is just as cogent in one court as in the other. Moreover, to exact payment of an outlawed mortgage on the theory that he who seeks equity must do equity necessarily postulates that the mortgage is presumptively valid. As already stated, this assumption is unwarranted. The second reason for declining relief in such cases — that the statute is a shield and not a sword — may be sound if properly applied; but it is not applicable to this form of action. It goes only to the form of the remedy, not to the substantial right. The statute is a protection against the litigation of stale demands, and hence the statute requires the party relying on it to plead the statute. It is well settled that this provision of the statute means that the statute of limitations must be pleaded as a defense if there is an opportunity to do so. If an outlawed demand is pleaded in an answer, then the statute must be pleaded in the reply; but, if the rules of procedure do not provide for a reply, then the statutory bar need not be pleaded, but may be relied upon and urged at the trial. Enc. of Pl. & Pr. vol. 13, p. 187; Dreutzer v. Baker, 60 Wis. 179, 18 N. W. 776: Cur*256tiss v. Sprague, 49 Cal. 301. Under sections 5901 and 5911, Rev. Codes 1899, as amended by chapter 5, p. 9, Laws 1901, no reply was required in this case. In this action the defendants were cited to appear and establish whatever adverse claim they might have. They appeared and sought to have their alleged mortgage established as a valid adverse claim, and also sought to have the tax deed of plaintiff Tracy declared void. They had no right to-this relief unless the}'' could estblish an enforceable mortgage.- The plaintiff had the right given them by statute to defeat the mortgage by urging- the limitation statute as a bar to any inquiry into the merits of the adverse claim. They did not thereby admit the validity of the mortgage. They merely availed themselves of the statute as a shield against any inquiry into the merits of the adverse claim.
I said above that the Indiana case (Cassell v. Lowry [Ind. Sup.] 72 N. E. 640) was the only case in point cited in the majority opinion. It will be found upon examination that all the cases cited (except the Indiana case and the Calif orina cases) were suits where the lien was attacked for specific reasons, and hence, as stated above, the attacking party admitted the validity of the adverse claim unless he established the specific invalidity alleged. In such cases, of course, the plaintiff must fail, because he cannot use the statute of limitations as a sword. Some of the cases from California were actions to determine adverse claims. In those cases, however, the defendant answered and alleged title in himself by virtue of apparently absolute deeds. The plaintiff, claiming that these deeds were in fact mortgages, had the burden of showing that" these apparently absolute deeds were in fact given as security; and hence he could not be relieved of them except by performing the conditions of the contract pursuant to which they were given. I fully agree with the conclusions announced in those cases. They are clearly distinguishable from the case at bar. In those cases the plaintiff had the burden of showing that the deed was not what it purported to be, and, in order to be relieved of the deed, he must redeem the mortgage which his own proof showed the deed to be. In other words, he was in the same position he would have been in if he had brought an ordinary suit in equity to cancel the deeds. In this case the plaintiff simply asserts his statutory right to decline to litigate the merits of an outlawed lien pleaded by defendant, who has the burden of proving its validity *257and the amount due thereon. It is doubtful if a plaintiff could under the California statute get relief from a mere lien in this form of action. The California statute relating to such an action was similar in terms to the statute of this state when Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511. was decided, wherein it was held that a lien was not an adverse estate or interest, and hence a lien would not be barred by a judgment for plaintiff in that form of action. Our statute was amended after the decision in Power v. Bowdle so as to include liens.
I think the majority opinion is unsound in principle and violates both the letter and spirit of the statute of limitations, and is supported by no authority except the Indiana case. Even in that case the court said (72 N. E. 641) : “It must be understood that our decision is limited to the right of a debtor himself to have his title to land quieted where it appears that the purchase money is unpaid.” Thus the court which rendered that decision expressly declare that it should not be taken as a precedent in a case like the one at bar, when the plaintiff is. not the debtor. I confess, however, that I do not see any good ground for such a distinction. It seems to me that my associates have not only misapplied the maxim that “he who seeks equity must do equity,” but have overlooked, and consequently have failed to give effect to those two other equally important maxims, “Equity aids the vigilant, not those who sleep on their rights,” and “Equity follows the law.” It must be borne in mind that modern statutes of limitation do not create any presumption of payment, satisfaction or other extinguishment of the claim in litigation, and that the statute is equally binding on a court of equity as on a court of law. The old controversy as to whether equity applied the principles of the statute of limitation by analogy or in obedience to the statutory rule was settled long ago in favor of the latter view. Angelí on Limitations, sections 25-27. As already shown, there is no presumption of extinguishment by reason of the expiration of the limitation period. Proof of nonpayment, therefore, is no reason for declining to apply the law. Quite the contrary. Nonpayment simply shows nonacknowledgement. Relief is barred by the statute, because it is against public policy to try the merits of a stale demand. This is the reason why courts of equity would not entertain a stale claim, even though not within the letter of the statute. The legislature having fixed the time required to constitute a bar by reason of the claimant’s neg*258lect to enforce his rights, it is the plain duty of a court of equity to not only enforce the policy of the statute, coinciding as it does with equitable principles, but to accept the statutory limitation period as the controlling one in equity. This is so whether the limitation statine in terms applies to equity courts or not, because “equity follows the law/-’ Angell on Liens, sections 25-27; Pomeroy’s Eq. Jur. (3d Ed.) vol. 1, section 419. Manifestly the same principles apply, whether the stale claim is one asserted by the plaintiff or defendant. “When the reason is the same, the rule should be the same.” Rev. Codes 1899, section 5073.
I further maintain that this decision violates the spirit and intent of section 5845, Rev. Codes 1899. It is plain that this statute was enacted for the purpose of placing the remedy of foreclosure under the power on the same footing as an action to foreclose, that is, to enable the mortgagor to summarily require the foreclosure to be made by action, if there is any dispute as to the validity of the mortgage, or the amount due on it, and also to enable the mortgagor to prevent a sale under the power, if a foreclosure by action could not be had. The policy of the law plainly was to require all disputed questions concerning the mortgage, or the amount due thereon, to be litigated in an action to foreclose, instead of compelling resort to the more circuitous suit in equity to enjoin the sale under the power. To permit the mortgagee to establish the validity and amount of his mortgage in this form of action, after the mortgagee by his own laches has lost the right to enforce his mortgage by action or otherwise, it seems to me, is a flagrant disregard of the will of the legislature. If the mortgagee is forbidden to enforce his mortgage because it is contrary to public policy to permit the merits of so stale a claim to be tried in an action to foreclose, why should that reason by ignored in this action? How can the court consistently adjudge valid a mortgage which cannot be enforced, and as to the merits of which it is forbidden to inquire, unless the mortgagor waives the statutory bar? The reasons which forbid the litigation of an outlawed mortgage are just as true in this action as in any other, and a mortgage containing a power of sale is just as much within the reason as a mortgage not containing that stipulation.
It may be urged that the remedy under the power is not barred until an injunction under section 5845 has been granted. The same argument would apply with equal force in the case of an *259outlawed mortgage having no power of sale. The only remedy on such a mortgage would be by action. In either case the statute of limitations, to be available, must be asserted by the party who desires its protection. Failure to plead it, or assert it in some other appropriate manner, is a waiver of its protection. So a failure to obtain an injunction under “section 5845 would be a waiver of the objection. ' If the argument were sound, it would logically follow that a judgment dismissing an action to foreclose on the ground that the action was barred by the statute would leave the mortgagees free to foreclose under the power, and hence such a judgment would not relieve the premises of the lien. I hardly think any one would seriously assert such a proposition. It seems clear to me that where, as in this case, the defendant is seeking to establish a lien, which is confessedly unenforceable unless the plaintiffs waive their statutory defense, it would be absurd to recognize and establish its validity, when the plaintiffs have unequivocally asserted their intention to avail themselves of the statute in bar of any attempt to enforce it. Suppose these mortgagees had brought this action to determine adverse claims, as our statute permits mortgagees to do; would it be contended that the defendant landowners could not have defeated the action by pleading and proving that the mortgage was outlawed ? Shall the rule be different simply because the mortgagee is defendant, instead of plaintiff? In either case the mortgagee has the burden of proving his lien. The issues are identical, and so, also, is the relief he is entitled to. I can see no reason for attributing to the outlawed lien any greater potency, or viewing it with more tenderness, when the mortgagee, as plaintiff, claims a right under it, than when he asserts the same right as a defendant ? My views are supported by Selby v. Sanford (Kan. App.) 54 Pac. 17, and Archambau v. Green, 21 Minn. 520.
(107 N. W. 68.)