(dissenting in part.) The question presented to this court for decision in this case is whether the ex parte order of the district court, which enjoined the plaintiffs from foreclosing the mortgage in question by advertisement under the power of sale contained therein, should be affirmed or reversed. I agree with my associates that it must be reversed, and for the reason stated, namely, upon the ground that the restraining order was issued upon the application of a person who had no right under the statute (section 5845) to make the application. I do not agree with the further views expressed in the opinion, wherein it is held indirectly, but in effect, that section 5200, which limits foreclose actions to ten years, is also applicable to foreclosures by advertisement. Section 5200 has no application to foreclosures by advertisement. This section fixes a limitation for actions only. It was so held by this court in the recent case of Clark v. Beck, 14 N. D. 287 103 N. W. 755. In 1901 the legislature amended this section so as to cover foreclosure by advertisement; but we held, in the case just referred to, that the amending act (chapter 120, p. 152, Laws 1901) operates prospectively, and does not apply to mortgages previously executed, and that section 5200, “limiting to ten years the time for commencing an action to foreclose a real estate mortgage, has no application to a proceeding to foreclose by advertisement.” This is necessarily true, for a foreclosure by advertisement is not a proceeding in court. It is not an action. Statutes limiting the time for foreclosing by action have therefore no application to a foreclosure under the power of sale. The cases are uniform in so holding. Golcher v. Brisbin, 20 Minn. 453 (Gil. 407); Hayes v. Frey, 54 Wis. 503, 11 N. W. 695; Dimmit County v. Oppenheimer (Tex. Civ. App.) 42 S. W. 1029; Menzel v. Hinton, 44 S. E. 385; *271132 N. C. 660, 95 Am. St. Rep. 647; Cone v. Hyatt, 132 N. C. 810, 44 S. E. 678; Stevens v. Osgood (S. D.) 100 N. W. 161; Bank v. Guttschlick, 14 Pet. 18, 10 L. Ed. 335; Goldfrank v. Young, 64 Tex. 432, and cases cited; Miller v. Coxe, 133 N. C. 578, 45 S. E. 940.
I do not understand that the majority opinion expressly overrules the recent views of this court in Clark v. Beck, and above quoted, or that it is now intended to flatly hold that section 5200 places a limitation upon the right to foreclose by advertisement. Still the opinion is expressed that this present remedy for the collecting of plaintiffs’ claim, which it is sought to enjoin (and it is a valuable one and rests upon contract), is barred, and that, if the application for the restraining order had in this case been made by the proper person, it would have been the duty of the court to restrain the exercise of the power. In short, as I view it, the majority conclude that the remedy under the power is barred, and this without a statute barring the remedy which is enjoined by the order. The reasoning by which this conclusion is reached does not appeal to me as sound. I cannot understand how a remedy can be barred in the absence of a statute barring it, and yet that result is reached in the majority opinion. As already stated, section 5200 does not relate to foreclosures by advertisement, but to foreclosures by action only, and there is no other statute of limitation which can be said to apply. It will appear, upon a casual inspection of section 5845 under which the restraining order was obtained that it is not a statute of limitations. This section merely provides a substituted method for obtaining the relief against the exercise of a power of sale by a summary and ex parte proceeding which was formerly obtained by an action in equity. It authorizes the issuing of the restraining order when it appears “to the satisfaction of a judge of the district court * * * that the mortgagor has a legal counterclaim or other valid defense against the collection of the whole or any part of the amount claimed to be due on such mortgage.” This section makes no reference to a statute of limitations or to any other defense by name, and there is nothing in it which would sustain a claim that it creates any new defenses. It simply provides a summary method for restraining the remedy by advertisement upon a showing “that the mortgagor has a legal counterclaim or other valid defense against the collection of the whole or any part of the amount claimed to be due on such mortgage. The defenses which will defeat the exercise of the power of sale must be *272found outside of this section. Payment in full of the debt secure,! by the mortgage will wholly defeat its exercise. Payment in part will defeat it pro tanto. Other defenses might be named which would have the same effect. Such defenses go to the cause of action itself, and would defeat all remedies without regard to periods of limitation. A statute limiting the period for foreclosing by advertisement, if we had such a statute, would also be a defense against the collection of the claim by that remedy, and would be a sufficient ground for a restraining order under this section. For a statute of limitations is a defense, but, unlike the defense of payment and similar defenses, it does not go to the cause of the action, but solely to the remedy for enforcing it. It will be observed that a defense which goes to the cause of action defeats all remedies, but a statute of limitations, which is a defense to a particular remedy only, is a defense only to that remedy, and is not a defense against the collection of the claim by another and a different remedy. It will not do, therefore, to say that, because the remedy for the collection of the claim by a foreclosure action is barred by section 5200. the remedy for the collection of the claim under the power of sale is also barred; and I do not understand that my associates intend to taice this position. This must be so, for the remedies are independent, and they have not the same limitation. One is limited, and the other is not.
The matter of limitations upon remedies belongs to the legislature. It may fix different periods for different remedies, or it may limit some and leave others without a limitation in its discretion. The court’s duty is only to give effect to such limitations as have been fixed when they are properly invoked. For instance, the plaintiffs’ claim is secured by the mortgage in question and is evidenced by a promissory note for $700. For the collection of this claim the plaintiffs have three distinct and independent remedies: (1) An action on the note, which is limited to six years from its maturity. Section 5201. (2) An action to foreclose the mortgage, limited to ten years. Section 5200. (3) The remedy under the power of sale, upon which the legislature has placed no limitation. My associates conclude that when an affidavit shows that an action to foreclose is barred, it states a defense against the collection of the claim within the meaning of section 5845, and that the remedy under the power of sale should therefore be enjoined. The argument in substance is this: Section 5845 author*273izes the issuance of an order restraining a foreclosure by advertisement upon a showing that the mortgagor has, a valid defense to the collection of the claim secured by the mortgage. The statute limiting the collection of the claims secured by a mortgage by an action of foreclosure (section 5&00) will, when pleaded, defeat the action, and is thus a defense to the collection of the claim. The argument is plausible, but is, I think, fallacious. The error lies in the assumption that a defense to the collection of a claim by one remedy is necessarily and always a defense to its collection by all remedies, and that, when a defense is shown, it is a defense in all cases. This is true as to defenses which go to the cause of action itself, like the defense of payment. Such a defense will, of course, defeat all remedies, and would, in this case, defeat all three of plaintiffs’ remedies. And because this is true as to defenses which go to the cause of action, my associates apparently conclude that it is true as to all defenses, including the statute of limitations. It is, however, palpably fallacious as applied to defenses which go to the remedy merely, as does a statute of limitations. In the latter case, the fact that one remedy for the collection of a claim is barred does not bar any other remedy which the claimant may have. To illustrate by the present case: An action on the note is barred six years from its maturity. The foreclosure action is barred in ten years, and there is no statute limiting the remedy under the power of sale. Now, let me ask, would the fact that the note is more than six years past due be a defense to an action to foreclose the mortgage? It will be admitted that it would not. And why? Is it not a defense to the collection of the claim? This will also be admitted. It will be properly answered that it is a defense to the collection of the claim by another remedy, an action on the note, but that it is not a defense to the collection of the claim by a foreclosure action, which is the remedy sought to be defeated, and is therefore not a defense to it. Again, I may ask, would an affidavit showing that an action on the note is barred state a sufficient ground for enjoining a foreclosure under the power of sale? Again it will be answered that it would not. And why? It is a defense against the collection of the claim by an action on the note, just as the ten-year statute is a defense against the foreclosure action. The reason for the answer is the same as in the preceding illustration. The limitation relied upon applies to an action on the note and not to a foreclosure under the power, which *274is the remedy being pursued for the collection of the claim. This being true, how can it be.said that an affidavit merely showing that a foreclosure action is barred states a defense against the collection of the claim by a foreclosure under the power of sale, which is the remedy which the defendants seek to defeat, and which my associates hold should have been enjoined,upon this showing, if the proper application has been made.
I have been unable to find any satisfactory reason to sustain the conclusion expressed in the majority opinion. It directly defeats the collection of plaintiffs’ claim by means of their remedy under the power of sale, and there is no statute limiting it, solely upon the ground that the' affidavit shows that the defendants have a defense against the collection of the claim by a foreclosure action, which is another and different remedy. The remedies are independent. One is limited and the other is not. The statute which will defeat one will not, or, at least, should not, defeat the other. Creditors are entitled to the aid of whatever remedies they may have by law or contract to collect their claims, and should not be deprived of them unless they are barred by statute. There is no statute barring the exercise of the power of sale in the mortgage involved in this case, and they should be permitted to have the benefit of this remedy. Section 5845 was adopted by the territorial legislature in 1883 and has continued in force in this state and in South Dakota. The Supreme Court of South Dakota had this section under consideration in Stevens v. Osgood (S. D.) 100 N. W. 161, and their conclusion was that the bar to one remedy does not bar the other, and that the right to foreclose under the power is not defeated by the fact that the statute has run against an action to foreclose. That court said: “As the statute of limitions applies merely to the remedy by action, and does not discharge the' debt or raise a presumption of payment, the lien of a mortgage on real property, containing a power of sale, is not destroyed, nor the right to foreclose lost by the mere lapse of sufficient time to prevent a foreclosure in court.” The majority opinion criticizes the conclusion of the South Dakota court because it accords to mortgagees an unlimited right to foreclose under the power of sale, rather than the grounds upon which that conclusion is based. Manifestly the criticism is misdirected. As previously stated, the matter of limiting remedies belongs to the legislature. It may1 limit some and leave others unlimited. The wisdom of its *275acts may be doubted, but the courts cannot disregard them, and they have no authority to create a limitation where the legislature has declined to do so. In my opinion the South Dakota court very properly declined to defeat the remedy under the power of sale by applying a statute of limitations which was not applicable. The conclusion of my associates rests largely upon section 5845. If this section has the potency ascribed to it by them — i. e., to directly operate as a bar, and thus accomplish the same result as a statute of limitation — the legislature did an idle act in 1901 in amending section 2100; for, in the majority view we have had in effect in this jurisdiction a ten-year statute of limitations applicable to foreclosures by advertisement for almost a quarter of a century. This evidently was not the view of the legislature of 1901. It was not the view of the Supreme Court of South Dakota, and I do not think it should be declared by this court to be the law of this state. Although the question is not directly involed in this case, it has been considered in the above opinion, and I cannot, in justice to myself, permit the views expressed to go down without indicating to some extent my disapproval.
(107 N. W. 61.)