On Petition for Rehearing.
Per Curiam.Plaintiff has filed a petition for rehearing wherein it is contended that the former opinion overlooked and failed to give proper consideration and effect to the statute enacted by the legislature in 1909. This statute is quoted in the opinion prepared by Mr. Justice Robinson. It is argued that as this statute was enacted after the decision was handed down in Tracy v. Wheeler, 15 N. D. 218, 6 L.R.A.(N.S.) 516, 107 N. W. 68, that the legislature intended to abrogate the rule announced in that decision.- It is said that “the legislative intent by the amendment was not to adhere to the old rule, but to obliterate it.”
It is stated that the legislature amended the statute at the first opportunity after the decision in Tracy v. Wheeler was handed down. This argument is unsound and based upon erroneous premises. The decision in Tracy v. Wheeler was handed down in April, 1906. The next legislative assembly convened in January, 1907, but the statute upon which plaintiff relies was not enacted until 1909. The statute does not purport to have any application in any action except one to determine adverse claims.' Its avowed purpose is to prescribe a rale of procedure in such actions. The case of Tracy v. Wheeler was not an action to determine adverse claims. It was an equitable action to cancel a specific mortgage. The complaint described the specific mortgage sought to be canceled with particularity, and gave the book and page of its record in the office of the register of deeds. The prayer for judgment was not “that the defendants be required to set forth their adverse claims, and that the validity, superiority, and priority thereof be determined” (as in actions to determine adverse claims), but the prayer was that the lien or encumbrance claimed by virtue of the specific mortgage described in the complaint be adjudged null and *141void, and plaintiff’s title quieted as against such claim. The rule announced in Tracy v. Wheeler was not one of procedure, but one of substantive law. And we are entirely satisfied that the members of the legislature did not have any intention in enacting this statute to abrogate and abolish a rule of substantive law.
In order that there may be no misunderstanding of our position with respect to the propositions involved in this case, we deem it proper to say that all the members of the court are agreed that the legislature had no intention of changing the rule announced in Tracy v. Wheeler et al. by the enactment of the statute relied upon by the plaintiff. And the majority of the court are agreed that the rule announced in that decision has become so well established that it ought not to be altered or abrogated by a judicial decision. If the rule is wrong, let the legislature abrogate it. The dissenting member of the court is, however, of the opinion that the rule announced in Tracy v. Wheeler is so fundamentally wrong that that decision and the subsequent decisions following it ought to be overruled.