(concurring specially).
I concur in the opinion prepared by Mr. Justice Robinson, for the *139Teason that the principle upon which the opinion is based has become so firmly established by the decisions of this court that it would' constitute judicial legislation of the most radical kind to interfere with the rule as established. In Tracy v. Wheeler, 15 N. D. 248, 6 L.R.A.(N.S.) 516, 107 N. W. 68 (decided April, 1906), this court first held that a real estate mortgage securing a just debt which has not been paid will not be canceled at the suit of the mortgagor or one standing in his shoes, on the ground that the Statute of Limitations has run against the right to enforce it. The doctrine was reaffirmed in Boschker v. Van Beek, 19 N. D. 104, 122 N. W. 338; Keller v. Souther, 26 N. D. 358, L.R.A.1916B, 1218, 144 N. W. 671, and D. S. B. Johnston Land Co. v. Mitchell, 29 N. D. 510, 151 N. W. 23. In Keller v. Souther, 26 N. D. 358, L.R.A.1916B, 1218, 144 N. W. 671, the rule was held applicable, even though the plaintiff was a remote grantee of the mortgaged premises, and neither he nor the mortgagor personally were liable for the payment of the indebtedness, the mortgage having been executed by and to secure the debt of a third person.
It is contended by counsel for the plaintiff that the legislature enacted chapter 3 of the Laws of 1909 (the statute quoted in the opinion prepared by Mr. Justice Robinson) for the purpose of abrogating the rule announced in Tracy v. Wheeler, supra. It is asserted that the statute was not called to the court’s attention in any of the subsequent cases wherein the rule announced in Tracy v. Wheeler, was reaffirmed, and is invoked for the first time in this case. Tho statute in question was adopted by tho legislature in 1909. The purpose of the enactment, as declared in tho title, was “to Amend § 7527 of the Code of 1905 Relating to Actions to Determine Conflicting Claims to Real Property.” The section relates merely to matter’s of procedure, viz., a reply in a statutory action to determine adverse claims. The rule announced in Tracy v. "Wheeler was one of substantive law, and it seems that the legislature cannot be said to have intended to change this rule by enacting a section relating to a matter of procedure in a statutory action to determine adverse claims. The statute relating to such action w^as enacted for the specific puipose of authorizing that particular form of action. The section under consideration was enacted for the purpose of prescribing certain rules of procedure therein. It should be limited to and apjdiod for the purpose for which it w’as enacted. Man*140ifestly, there ought not to be and cannot be one rule with respect to the cancelation of an outlawed mortgage in an action to determine adverse claims, and another rule when cancelation of such mortgage is sought in an action of some other nature or character.
Bruce, Ch. J., concurring.