On Petition for Rehearing.
Per Curiam :The counsel for the appellant has filed a petition for rehearing, in which it is urged that important questions presented by the record have not been decided, or, if decided, that the decision is erroneous. It is urged that the foreclosure of the mortgage was valid by reason of the fact that the assignment had not been recorded. Conceding this to be the law, it is still true that one who goes into possession of land under a sheriff’s deed, issued in pursuance of a void foreclosure, is in possession under color of title. The real question, then, under the record in this case, is as to the effect of the Statute of Limitations. Possession under color of title is adverse as to all the world. And this is true, even though the foreclosure be void. 1 Cyc. 1093. This, character of possession sets in operation the Twenty-year Statute, Comp. Laws 1913, §§ 7363 — 7367. If, however, the possession be considered as having been taken under the terms of the mortgage, then the plaintiff’s right is an equitable right to redeem his title from the effect of the mortgage, and is barred under the Ten-year Statute. Comp. Laws 1913, § 7381; Nash v. Northwest Land Co. 15 N. D. 566, 108 N. W. 792; Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, 50 N. Y. 468; Houts v. Hoyne, 14 S. D. 176, 84 N. W. 773), which, however, this qualification, rendered necessary in this jurisdiction by the doctrine of Nash v. Northwest Land Co. supra, that the mortgagee in possession has held adversely. See also Trimm v. Marsh, 54 N. Y. 599, 13 Am. Rep. 623, note in 46 L.R.A.(N.S.) 506.
The facts disclosed by the record warrant a finding that the claim of the defendant was barred by the adverse holding of the plaintiff, not only for ten years, but for more than twenty years. The mortgage was foreclosed in 1890, and Brown testified that he first learned of the fore*611closure in the fall, after it was completed; whether after the sale or after the issuance of the deed is immaterial. He said that a man came and told him that the mortgage had been foreclosed and that the mortgage company owned the land. He admitted that he never knew he had any title to the land from the time he was told of the foreclosure until he consulted his attorney after the starting of this action. He admitted that from the time he was notified of the foreclosure until after the starting of this action, he had taken no steps whatever to assert any rights he may have had in the land. He had not pastured the land, nor farmed it, nor had he objected when he saw others doing so, although he had lived in the vicinity all of the time. While the direct evidence, as to the change of possession immediately following the foreclosure, is not of a conclusive character, the conduct of Brown in relation to the land during all the years intervening is only consistent with an absolute change of possession following the notice to him that the mortgage had been foreclosed. But even if there were any doubt as to the change of possession following immediately upon the issuance of the sheriff’s deed, there can be no doubt whatever that Brown knew that Hilton, Steinwand’s grant- or, and Steinwand were holding the land as their own, under color of title, for more than ten years previous to the bringing of this action. The evidence shows that the land was cropped annually, beginning in 1894, by different persons having no relation with Brown; that Hilton cropped the land in the years 1901-2-3 and 4, and that he sold it to Steinwand in 1905 with the crop on it; that in 1903 he fenced part of the land; that he was in possession under a contract with the Colonial & U. S. Mortgage Company, and that, during all this time, Brown lived in the vicinity and asserted no claim to the land.
The contention that the Ten-year Statute could not apply as to the counterclaim set up by the defendant is held in the main opinion herein to be without merit. It is well settled that a title which may not amount to a fee simple legal title comes under the protection of such a statute as § 7381, Comp. Laws 1913, and that, where a title or right is thus protected, it affords a proper foundation for affirmative action to protect it from the cloud of a legal title which can no longer be successfully vindicated. Such a statute is more than a statute of repose. See authorities cited in the note in 46 L.R.A. (N.S.) 506. To the extent *612that the dictum in the case of Page v. Smith, 33 N. D. 369-381, 157 N. W. 477, appears to announce a contrary doctrine, it is overruled. ' The rehearing is denied.