(concurring). Without expressing any opinion upon the merits of the proposition advanced by respondent’s counsel as an original proposition, I concur in holding that the judgment of the trial court must be reversed by reason of the controlling precedents in this *138jurisdiction which aro cited in the concurring opinion of Mr. Justice Christianson.
In view of the argument, however, that § 152 of the Compiled Laws •of 1913 establishes a contrary rule, it seems to me proper to briefly state the reasons why this statute does not have the effect contended for. The portion of the statute relied upon is as follows: “No reply shall be necessary on the part of the plaintiff, except when the defendant in his answer claims a lien or encumbrance upon the properly, which, prior to the commencement of the action, was barred by the Statutes of Limitation, or which shall have been discharged in bankruptcy, or which constitutes only a cloud, the plaintiff may reply setting up such defense and avail himself of the benefit thereof.”
It will ho noted that the statute is entirely silent as to the effect of a reply setting up the Statute of Limitations or a discharge in bankruptcy. In so far as the right of the mortgagor to have the lien of such mortgage annulled is concerned, a reply setting up these defenses would clearly preclude the defendant mortgagee from recovering a personal judgment against him.
The statute in fact only carries into the action for the determination of adverse claims the general rule of pleading according to which one relying upon the Statute of Limitations or a discharge in bankruptcy for a defense is required to plead it. Other sections of the statute governing actions to determino adverse claims (§§ 8151 and 8153 particularly) clearly contemplate that in such action Hiere may be a personal judgment, as against a party to the proceeding, except a defendant served by publication and not appearing.
In order to establish a proper procedure whereby the plaintiff may avoid having a personal judgment entered against him upon a mortgage barred by the Statute of Limitations or bankruptcy, the statute in question was necessary, and it seems clear that when the statute is given this effect it secures to the plaintiff the “benefit” of such defense. If it had been intended to give to the plaintiff the right to have his title cleared of such a lien, in my opinion the language of the statute would have been much different from what it was.