(dissenting). After giving the opinion of Judge Goss very careful consideration, and examining all the authorities cited therein, and the statutes on which they are based, and comparing the; same with the provisions of our own Code thought to be- applicable, I find myself unable to concur therein. In my judgment the trial court liad no power, on the undertaking furnished, to order a stay of all proceedings on the judgment and decree rendered in that court, and its order should be modified so it may supersede only the part of the judgment which I shall denominate “decree”- — that, is to say, that part directing a sale of the premises in the manner usually followed in the foreclosure of mortgages — or the appellant should be permitted to file an additional bond appropriate to stay a money judgment on appeal to this court.
With great deference for the opinions of my associates, I am constrained to conclude that their decision rests upon authorities no one of which is in point, for the reason, if for no other, that they all depend upon statutes which differ radically from our own. The only authorities I find bearing on the subject, on statutes either identical with, or in substance the same as ours, are in harmony with my conclusions. It must be borne in mind that, since the adoption of the Code, causes of action which had theretofore been denominated legal and those called equitable may be united in proper cases. It necessarily follows that a *17judgment or decree, or both, may be entered appropriate to the nature of the causes of action set forth in the pleadings. I am of the opinion that there has been a failure to distinguish between two classes of actions, viz., actions wherein the lien, or the equities, are the main features and the damages or the money part of the recovery only incidental, and those in which the money is the principal element and the lien or equity features incidental.
In the case at bar the lien depends on the debt, and not the debt on the lien. The lien is only an incident of the debt. The issues should not be lost sight of. The plaintiff sold a tract of real property to the defendant for a cash consideration and delivered the deed. The defendant placed the deed on record and immediately mortgaged the property so purchased to one Lord. The plaintiff brought this action to recover the purchase price which had not been paid to him, as held by the trial court, and to have it adjudged a vendor’s lien and as taking precedence to the mortgage to Lord, and for the foreclosure of such lien. The contests in the trial court in no manner related to the vendor's lien, except incidentally. The questions litigated were whether a bank in which the defendant had deposited the purchase price was the plaintiff’s or the defendant’s agent. If it was the plaintiff’s agent, payment had been made; if the defendant’s, the purchase price had not been paid; and if the latter to determine the priority between the vendor’s lien, which followed as a matter of course, and the mortgage which in the meantime had been given. The trial court fottnd that the bank was the defendant’s agent, and that therefore the purchase money had not been paid to .the plaintiff, but that Lord, the mortgagee, was an innocent incumbrancer, and that his mortgage had precedence to the vendor’s lien held by the plaintiff. Judgment was entered in the usual form of a money judgment, as stated in the main opinion. This was followed by a decree establishing the lien, providing for the sale of the premises and the application of the proceeds, and execution for the deficiency, if any. It will thus be seen that it was a dual judgment, or, in technical language, the first provision was a judgment and the remaining provisions a decree in equity., all proper under our system and as held by numerous authorities.
Section TOJO, Nev. Codes 1905, requires judgments to be entered by the clerk upon the order of the coirrt or judge thereof. Section T0T9 *18requires the judgment to bo entered in a judgment book, and that it shall specify clearly the relief granted or other determination of the action. Section 7082, so far as material, is as follows: “On filing a judgment roll upon a judgment directing in whole or in part the payment of money it may be docketed with the clerk of the court in which 'it was rendered, in a book to be known as the judgment docket, . . . and shall be a lien on all the real property, except the homestead, in the county where the same is so docketed, of every person against whom any such judgment shall be rendered, which he may have at the time of the docketing thereof in the count}’ in which such real property is •situated or which he shall acquire, at any time thereafter for ten years from the time of docketing the same, in the county where it was rendered. . . . But whenever an appeal from any judgment shall be pending and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in this Code, the court in which such judgment was recovered may, on a special motion, after notice to the person owning the judgment, direct the clerk to make an entry on the judgment docket that the judgment is secured on appeal, and thereupon it shall cease, during the pendency of the appeal, to be a lien on the real property of the judgment debtor as against purchasers and mortgagees in good faith and for value.”
No specific provision has been made by the legislature of. this state for the foreclosure of vendors’ liens, and we cannot look to the provisions of our Code relating to foreclosure of mortgages for light on the subject. Section 7082, supra, seems to indicate in as clear, explicit language as could be employed, that when a judgment is filed directing-in whole or in part the payment of money, and docketed, it becomes a lien upon all real property except the homestead, of the debtor in the county, and he can only be relieved from it by the undertaking on appeal requisite to stay execution. The judgment in the instant case must certainly come within the definition of one which directs in whole or in part the payment of money. If considered as one judgment, it directs it in part; if considered as a dual judgment, as held by many authorities, or as I have technically designated it, as a judgment and as a decree, the judgment is in whole for the payment of money. Now if my conclusion is correct, and under this section the judgment in this •case for money became a lien on all the real estate of the defendant *19■except his homestead, when docketed, the next question is how the lien of such a judgment may be released or superseded on appeal to this court. When we turn to the appropriate chapter, wo find that § 7209 is as applicable to tbis case as human wisdom could make a provision, in providing that, if the appeal is from a judgment directing the payment of money, it shall not stay the execution of the judgment unless an undertaking is executed on the part of the appellant hy at least two •sureties, etc.
This section is in harmony with § 7082, supra. The first provides for a lien when the judgment is for the payment of money in whole or in part, and the last for a stay of exeention when the judgment directs the payment of money; hut it is said that § 7212 is the only section having any application to this judgment and decree because it provides for staying the sale or delivery of possession of real property, except for foreclosure of mortgages, when the judgment appealed from directs it. This ignores the money judgment. When the judgment is dual, one part a judgment for money, the other directing the sale of real property, this only has application, as is clear, to the decree directing the sale. It has no application to the money judgment. They arc two distinct entities so far as necessary to consider in this case.
The court was asked to enter a money judgment; it did so. It was asked to enter a decree, and it did so; and, if the defendant wishes to supersede the money judgment, he must give an undertaking appropriate to the money judgment. If he wishes to prevent the sale, he gives ■an undertaking appropriate to do that; but the latter alone does not release the lien of the money part of the judgment, nor prevent levy of execution thereon. That the form of the money judgment in this case is in personam and appropriate to such actions cannot he questioned.
Now with reference to the authorities relied upon in the majority opinion: The provisions of the California practice act of 1851 were to all intents and purposes, so far as applicable herein, identical with our own at the present time. Section 204 of that act corresponded to § 7082 of our Code, and provided that immediately upon filing a judgment roll the clerk should make the proper entries of the judgment-under appropriate heads in the docket kept by him, and that “from the mme the judgment is docketed it shall become a lien upon all the real property of the judgment debtor, not exempt from execution, in the-*20county, owned by him at the time, or winch he may afterwards acquire, until the said lien expires. The lien shall continue for two years, unless the judgment be previously satisfied.”
The sections relating’ to undertakings on appeal were, barring some verbal changes, identically our own. In fact, such -provisions were incorporated into the Code of Dakota Territory from the California practice act, which had long prior to that time been construed by the supreme court of California. Until 1860 and 1861 the California practice act had contained no prohibition from maintaining at the same time more than one suit to enforce liens or collect the debt secured thereby. In this respect it was like the Code of this state at the present time, with the exception of provisions relating to the foreclosure of mortgages. Authorities on foreclosure of mortgages in California before 1860 and 1861 are in point. In Rollins v. Forbes, 10 Cal. 299, Judge Field, writing the opinion, held as against a demurrer that in an action to foreclose a mortgage the equitable relief follows as a consequence of the existence of the debt and as security for its payment; and that there was no objection to the formal rendition of a judgment for the amount found due in such actions. And the same court, through Field, Oh. J., in 1859 held that on an appeal from an order setting aside'a money judgment in foreclosure proceedings, on the ground that such judgment could not be rendered in the foreclosure of a mortgage, the court erred; that the parties were at liberty to adopt in such actions the course pursued under the old chancery system and take a decree adjudging the amount due upon the personal obligation of the mortgagor and directing a sale of the premises and the application of the proceeds to its payment, and apply, after sale, for the ascertainment of any deficiency and execution for the same; or that they might take a formal judgment for the amount due in the first instance. Rowland v. Leiby, 14 Cal. 157.
In Chapin v. Broder, 16 Cal. 403, that court had under consideration this entire subject. It is there held in a foreclosure suit, when the judgment* simply ascertained the amount due and directed a sale and the application of the proceeds, the recovery of any deficiency, and execution for the same, that the judgment did not become a lien on the real estate of the debtor. It created no lien until the deficiency was ascertained, but that it was perfectly competent for the court in such *21action to render a personal judgment against the mortgagor in addition to the usual relief granted in such cases: and that when this w'as done it became a lien on the premises; and that when a smaller undertaking than one in twice the amount of the judgment and costs, that being the California provision as to money judgments, was given, execution ivas not stayed and could, have been issued at any time.
These cases indicate clearly the construction placed upon these provisions prior to 1861 in California, so far as they relate to the foreclosure of mortgages. There was then no distinction in this respect, in that state, between the foreclosure of mortgages and of other kinds of liens. The case of Englund v. Lewis, 25 Cal. 337, construes these provisions as they related to foreclosure of a vendor’s lien. It had been foreclosed by action and a decree taken identical in form in every respect with the one in the case at bar. It is true they were, in that case, not foreclosing, but were considering the effect of a foreclosure where such a judgment and decree had been taken; and it was held that a formal judgment in personam might be rendered against the defendant for tíre amount found due, with a provision for its enforcement against the property upon which the lien is established, or a judgment might be entered in accordance with the old chancery practice, enforcing the lien and directing the sale of the property upon which it was established; that if the judgment in personam was rendered, and also one enforcing the lien, on appeal from the whole judgment, proceedings would not be stayed upon the whole judgment unless the appellant gave an undertaking for costs and one appropriate to a personal money judgment, and one for the payment of waste and deficiency; that these undertakings might be in one instrument or several; that, if undertaking was given only for costs and waste and deficiency, an execution on the personal judgment was not stayed pending the appeal. If given for costs and' the amount of the personal judgment, execution for sale of the property under the lien being foreclosed w'as not stayed. This case is directly in point. The law is exhaustively discussed, the reasoning most convincing, it has never been overrtded, but on the contrary has been cited times without number as authority. The effect of it is that, to stay execution on the whole judgment foreclosing a lien when personal judgment is taken, the undertaking appropriate to each phase or part of the judgment and decree must be provided.
*22I have said that the authorities cited in the majority opinion are not in point for the purposes for which they are used. Most of them, on close analysis, disclose clearly why they arc not in point; but the most important reason is because of changes made in § 246 of the old California Practice Act in 1860 (Stat. 1860, p. 303, § 23) and 1861 (Stat. 1861, p. 306). That section as then amended still remains in force, in that state. We have no such corresponding statutory provision, except relating to foreclosure of mortgages on real property. To make this clear, I quote the material parts of § 246 of the California practice act and of section TiTT, Rev. Codes 1905, and the amended § 246 to which I have referred. The old § 246 reads: “In an action for the foreclosure or satisfaction of a mortgage of real property or the satisfaction of a lien or incumbrance upon property, real or personal, the court shall have power by its judgment to direct a sale of the property or any part of it, the application of the proceeds to payment, of the amount duo on the mortgage, lien or encumbrance, with costs and execution for Unbalance.” This 'is the section which, in connection with the one making judgments a lien on real property, heretofore referred to, was construed by the California courts. This, as amended in I860 and 18(51, as contained in the California Code, reads: “There shall be but one action for the recovery of any debt or the enforcement of any rigli! secured by a mortgage or lien upon real estate or personal property, winch action shall be in accordance with the provisions of this chapter. In such action the court shall have power by its decree or judgment to direct a sale of the incumbered property or such part thereof as shall be necessary, and the application of the proceeds of the sale-, to the payment of the costs and expenses of the. sale, the costs of the. suit and the amount due to the plaintiff. If it shall appear from the sheriff’s return that there is a deficiency of such proceeds and a balance still due to the plaintiff, the judgment shall then be docketed for such balance against the defendant, or defendants, personally liable for the debt, and shall, from the time of such docketing, be a lien upon the real estate of the. judgment debtor, and an execution may thereupon be issued by the clerk of the court in like manner and form as upon other judgments, to collect such balance or deficiency from the property of the judgment debtor.”
Section 7477, N. D. Rev. Codes-1905, reads as follows: “Whenever *23an action shall be brought for the foreclosure or satisfaction of a mortgage the court shall have power to render a judgment against the mortgagor for the amount of the mortgage debt due at the time of the rendition of such judgment and the costs of the action, and to order and decree a sale of the mortgaged premises, or such part thereof as may be sufficient to pay the amount so adjudged to be due, and costs of sale. . . . And the court may direct the issuing of an execution for the balance that may remain unsatisfied after applying the proceeds of such sale.”
In Cormerais v. Genella, 22 Cal. 116, this amendment was construed, and it was held that it did not deprive the court of the powe.r to enter the old-fashioned, connnon-law personal judgment, but that it did prohibit the docketing of that judgment and the creating of a lien or the issuance of an execution thereon until the deficiency, if anyr should be ascertained. To the same effect was Culver v. Rogers, 28 Cal. 520.
In Painter v. Painter, 98 Cal. 625, 33 Pac. 483, we find an action identical in principle with the case at bar. It was an actioii for an accounting and to have the amount found due adjudged a lien upon the real ('state, and the court said that it would have been entirely proper for the plaintiffs to have entered a judgment in personam for the-amount found due, and that upon such judgment they would have heenentitled to an execution against all the property of the defendant as upon an ordinary judgment for the recovery of money, but that, inasmuch as the judgment recovered only recited the amount due and contained specific directions as to how it should be released, the right- of plaintiffs to a personal judgment had been postponed until the interest of the defendant in the property had been sold and a deficiency judgment entered.
.For a discussion of the change occasioned by the amendment of the California practice act, see Cormerais v. Genella and Culver v. Rogers, supra.
The Supreme 'Court of Washington has passed upon the identical question involved in the case at bar, on at least two occasions. True, in the opinion in this case it is said that Washington decisions are not in point because' the statute is not the same. Pray, how does their statute differ from ours ? Simply in this, that for the purpose of fixing *24the amount of bond to be given on appeal, to supersede the judgment, judgments are there divided into two classes; those for money, and all others.
In State ex rel. Washington Bridge Co. v. Superior Ct. 11 Wash. 366, 39 Pac. 644, it was held that a judgment for a specified sum of money and decreeing the foreclosure of a mechanic’s lien is a final j udgment for the recovery of money within the meaning of Statutes 1893, p. 122, § 1, providing that a supersedeas bond on appeal from judgment for the recovery of money shall be in a penalty' double the amount of damages and costs. The court in commenting upon the arguments of counsel says that this is clearly a judgment for the recovery of money and that had it not been intended by the legislature as such it would have been very easy and natural for it to have inserted the word “only,” and thereby make the statute plain. It held the lien purely incidental.
In State ex rel. Commercial Nat. Bank v. Superior Ct. 14 Wash. 365, 44 Pac. 859, it is held that judgment in favor of the plaintiff for money due on a note and for foreclosure of a mortgage securing it is a judgment for the recovery of money within the statute providing that on appeal from such judgment a supersedeas bond shall be double the amount of the judgment; and it was hold also that the court had no authority to fix the amount of such bond. It was again held that the primary object of such a statute was to collect the money found to be due, and that the lien and enforcement of it were only secondary. To the same effect, see 1 Freeman, Executions, § 16. And directly in point to this effect is Bennett v. Morehouse, 42 N. Y. 189.
It has been argued that this construction wo\fld be unreasonable and burdensome upon the appellant. Be it so. The remedy lies with the legislature and not with the courts. On the contrary, let us inquire what the effect of the other construction is in the case at bar; and it might have a similar effect in many other instances. The plaintiff has parted with his land and received but a small fraction of the purchase price. The defendant not only has the land, but he has mortgaged it for nearly, if not quite, the entire purchase price. 'The plaintiff has parted with his real estate, recovered judgment for the purchase price and a lien on whatever trifling equity the defendant retains in it, subject to the mortgage, and he has a bond for $250 on the appeal for costs, and another for $1,000 only to cover waste and use and occupation.
*25It is self-evident that the last clause of § 7082 is a very important factor for consideration on this appeal, because the effect of the $1,000 bond considered is not simply to stay execution, but under that clause it furnishes the foundation on which to direct the clerk to make an entry on the judgment docket whereby such judgment shall cease, during the pendency of the appeal, to be a lien on the real property of the defendant, as against purchasers and mortgagees in good faith aniffor value. When such entry is made, as unquestionably it will be, and the defendant disposes of his equity in the land to an innocent purchaser, as he may readily do, what security is left to the judgment of this plaintiff, on a debt amounting to $4,197.20, and interest for some years ? Nothing except the bond for $1,000, and this bond not to apply on the debt but only for the value of the use and occupation, which may be nothing, and for waste, which is inconsequential.
The language of the Code is too plain to require discussion. The-bond given is inadequate to stay either the lien of the money judgment or execution thereon pending the appeal.