Concurring. — L. Wimberly and Cora Wimberly purchased a tract of land from O. C. Jones; they paid a part of the purchase price and gave to Jones their promissory note for the balance and they secured the note by executing a mortgage on the land so purchased by them. The note was dated January 28, 1910, and was for the sum of $3,000 payable on or before ten years after date with interest at 6 per cent per annum, payable annually. Neither the note nor the mortgage made reference to the fact that either paper represented a part of the purchase price of the land. Jones sold the note and mortgage to G. H. Carter who in turn transferred the instruments to the plaintiff A. H. Wright. The makers of the note failed to pay the interest which became due on January 28, 1914, and on that account A. H. Wright commenced a suit in foreclosure on March 1, 1914, making L. Wimberly, Cora Wimberly and other parties defendants. *28That sidt in foreclosure terminated on November 7, 1914, in a decree which in part, is as follows:
“It is ordered, considered, adjudged and decreed that the plaintiff have and recover off and from the defendants L. Wimberly, Cora Wimberly, O. C. Jones, G. H. Carter and each of them, the full sum of $3,319.50 with interest from this 7th day of November, 1914, at the rate of six per cent per annum, and the further sum of $300.00 attorney’s fees, and plaintiff’s costs and disbursements herein taxed at thirty-one ($31.00) dollars; but that no deficiency judgment be entered against defendants L. Wimberly or Cora Wimberly.”
On December 1, 1914, a writ of execution was issued on the decree commanding the sheriff to sell the mortgaged real property to satisfy the amount specified in the decree. The property was sold by the sheriff in obedience to the writ and the sum of $2,500 was realized at the sale. The costs and disbursements of the suit and the attorney’s fees were paid out of the proceeds of the sale and the remainder was applied on the amount due on the decree. Afterwards on June 23, 1916, A. H. Wright began this action against L. Wimberly and Cora Wimberly and demanded judgment against them for the sum of $3,000, with interest from January 28, 1913, less the sum of $1,909, which had been applied on the debt out of the proceeds derived from the sale of the mortgaged premises. The facts heretofore detailed as well as other facts were narrated in the complaint.
I concur in the conclusion that the judgment appealed from should be affirmed; but my conclusion is based upon reasons which are radically different from those given in the opinion approved by a majority of the court. We should remind ourselves at *29the very outset of the discussion that Section 426, L. O. L., must be mewed in the light of the decision which was rendered in Page v. Ford, 65 Or. 450 (131 Pac. 1013, Ann. Cas. 1915A, 1048, 45 L. R. A. (N. S.) 247); for it was there held that in despite of Section 426, L. O. L., the holder of a purchase note and mortgage can, if he wishes, ignore the mortgage commence an action at law on the note, obtain a judgment against the maker for the amount due on the note and then by execution levy upon and sell any of the available property of the judgment debtor. In other words, under the ruling made in Page v. Ford, an action of law on the purchase money note can be prosecuted to a final judgment and full and complete payment of the judgment can be enforced precisely as any other money judgment can be enforced; for under the doctrine of that precedent Section 426, L. O. L., does not place any limitation whatever upon the judgment creditor, but upon the contrary he can compel full payment of the debt by levying upon both the mortgaged property and any other property which the judgment debtor may own exactly as in the case of an ordinary judgment. The ruling in Page v. Ford permits full payment by compulsory process if the holder of the purchase money note ignores the mortgage and sues on the note. The defendants argue that if the holder of the note and mortgage declines to ignore the mortgage and if he prosecutes a foreclosure suit, he is in that event limited to the mortgaged property and cannot compel the payment of any deficiency, remaining after the sale of the mortgaged property, either in the foreclosure suit or in any other proceeding.
Section 426, L. O. L., was enacted in 1903. The statute is entitled:
*30“AN ACT
“To abolish deficiency judgments upon the foreclosure of mortgages to secure the unpaid balance on the purchase price of real property ”: Laws 1903, p. 252.
This statute will first be considered in the light of the words found in it and of the language employed in certain sections of the Code which were in force when the act of 1903 was adopted. The question of the intention of the legislature will be discussed later.
Every section of the Code, except Section 426, to which we shall direct attention was adopted as a part of the Civil Code in 1862; and it will be seen from an examination of the Code that at no time since 3862 has there been a statute permitting a deficiency judgment. Section 422, L. O. L., reads as follows:
“A lien upon real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. In such suit, in addition to the decree of foreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor or other lien debtor, or by any other person as principal or otherwise, the court shall also decree a recovery of the amount of such debt against such person or persons, as the case may be, as in the case of an ordinary decree for the recovery of money.”
By the express terms of Section 422, L. O. L., a suit on a note and mortgage results in a decree: (1) Foreclosing the lien of the mortgage and directing a sale of the mortgaged property “to satisfy the debt secured thereby”; and (2) adjudging “a recovery of the amotmt of such debt against” the debtor, whether such debtor be the mortgagor or any other person. In brief, the statute plainly directs the court to decree *31a foreclosure of the lien and also commands that “the court shall” enter a personal decree against the debtor for the amount of the debt. The decree against the debtor is not for a part of the debt, hut it must he for the whole amount of the indebtedness, and it must he “as in the case of an ordinary decree for the recovery of money.” We now turn to Sections 196 and 413, L. O. L., for the purpose of acquainting ourselves with “an ordinary decree for the recovery of money.” Section 196, L. O. L., directs that all judgments shall he entered by the clerk in the journal “and shall specify clearly the amount to he recovered. ’ ’ Section 413, L. O. L., makes Section 196, L. O. L., applicable to suits in equity. By force of the plain terms of Section 196, L. O. L., an ordinary decree for the recovery of money would specify .the amount to be recovered; and since under the provisions of Section 422, L. O. L., the amount to be recovered is the whole amount of the debt, it necessarily and inevitably follows that the amount to be specified in the decree, is the full amount due on the note. This personal decree is a full and complete decree for the amount of the debt. The note is merged in the personal decree and the latter becomes a bar to another suit or action: 23 Cyc. 1110.
We turn to Section 425, L. O. L., and there read:
“When a decree of foreclosure and sale is given, an execution may issue thereon against the property adjudged to he sold”; and “when the decree is also against the defendants or any one of them in person, and the proceeds of the sale of the property upon which the lien is foreclosed is not sufficient to satisfy the decree as to the sum remaining unsatisfied, the decree may be enforced by execution as in ordinary cases.’’
It will he observed that in all cases of foreclosure an execution is issued against the property adjudged to *32be sold, and, if the proceeds of the sale are not sufficient to pay “the decree” which has already been entered against the person then that same decree may be enforced “by execution as in ordinary cases.” We next inquire how decrees in ordinary cases are enforced by execution.
By the terms of Section 415, L. O. L., the provisions of Sections 213 to 220, L. O. L., inclusive, and Sections 227 to 258, L. O. L., inclusive, “apply to the enforcement of -decree so far as the nature of the decree may require or admit of it.”
Title III of the Code includes Sections 213 to 253, L. O. L., inclusive and regulates “the enforcement of judgments in civil actions” by making ample provision for executions, levy and sale under execution, and redempton. Section 213, L. Q. L., declares that—
“The party in whose favor a judgment is given, which requires the payment of money * * may at any time after the entry thereof have a writ of execution issued for its enforcement.”
There are three kinds of executions, one of which is against the property of the judgment debtor: Section 214, L. O. L. “ The writ of execution shall be issued by the clerk and directed to the sheriff,” and “it shall require the sheriff to satisfy the judgment, with interest, out of” the property of the judgment debtor: Section 215, L. O. L. The writ of execution shall be returnable, within 60 days, after ifs receipt by the sheriff, “to the clerk’s office from whence it issued.” The writ is executed by the sheriff who “shall levy on the property of the judgment debtor sufficient to satisfy the judgment,” and when property has been sold “he shall pay the proceeds thereof, or sufficient to satisfy the judgment, to the clerk by the day which the writ is returnable”: Section 233, subds. 3 and 5. The notice *33of sale, and the time, place and manner of sale are all regulated by statute: Sections 237 and 238, L. O. L. When real property is sold the sale is subject to confirmation by the court, but the judgment creditor “shall be entitled” to an order of confirmation unless objections are filed; and even though objections are filed and sustained the court “shall # * direct that the property be resold, in whole or in part, as the case may be, as upon an execution received of that date. ’ ’ The sheriff pays the proceeds of sale to the clerk and he in turn “shall then apply the same” on the judgment: Section 241, L. O. L.
When a decree is given in a suit, unless otherwise ordered by the court, it shall be entered by the clerk within the day it is given: Section 413, L. O. L. It is provided in Section 205, L. O. L., that immediately after the entry of a judgment in any action, the clerk shall docket the same in the judgment docket; and from the date of docketing a judgment it shall be a lien upon all the real property of the defendant within the county where the judgment is docketed during the time an execution may issue thereon. The provisions of Section 205 are made applicable to suits by the express terms of Section 413, L. O. L.
It must be remembered that the purpose of the act of 1903 (Section 426, L. O. L.), as declared in its title, is to abolish deficiency judgments; and, hence, if the procedure established by our Code neither provided for nor contemplated a deficiency judgment, then the act of 1903 accomplished nothing. The words “deficiency judgment” have a yell-understood meaning when used in connection with mortgage foreclosures, for their genesis is not shrouded in doubt; and consequently when the legislature spoke of “deficiency judgments” we have a right to assume that the words *34are to be accorded tbeir generally accepted meaning. In one of it earliest forms a mortgage was made upon definite terms of forfeiture; and if the covenants were not strictly kept the title passed absolutely to the creditor, for the common law offered no redress whatever to the debtor. The severity of the common-law rule was alleviated upon the appearance of courts of equity, and in course of time the common-law courts waived their former exclusive jurisdiction and courts of equity assumed complete jurisdiction over mortgages; the “equity of redemption” finally became a definite right in every mortgagor; and no mortgage could be enforced without a decree of the chancellor; 1 "Wiltsie on Mortgage Foreclosure (3 ed.), § 2. A suit for the foreclosure of a mortgage was in the nature of a proceeding inrem: 1 Wiltsie on Mortgage Foreclosure (3 ed.), § 8; 3 Jones on Mortgages,, (7 ed.), §1711; its sole purpose was to enforce a charge on property; and the remedy was and is purely equitable: 1 Pom. Eq. Jur. (3 ed.), § 171; 4 Pom. Eq. Jur. (3 ed.), § 1413. Indeed, there was a time in the history of the law of mortgages when the sole remedy available to a mortgagee was a proceeding in rem against the land; but with the development of the law of mortgages and the establishment of the principle that a mortgage was only a security, bonds and notes came into use in connection with mortgages, or sometimes instead of using a bond a covenant to pay the debt was incorporated in the mortgage: 1 Wiltsie on Mortgage Foreclosure (3 ed.), §§ 215, 216; and hence the use of bonds and notes and covenants introduced a personal obliga-. tion into the transaction.
From the time when equity jurisprudence was first established courts of equity avowed and usually exercised the right to terminate .litigation by settling the *35whole controversy and awarding full and final relief to the litigants; and hence one might reasonably expect to find courts of equity exemplifying the fundamental conception of equity jurisprudence by awarding a judgment on the personal obligation and decreeing a foreclosure of the mortgage in a single proceeding. A suit to foreclose a realty mortgage, however, furnished an exception to this general rule, for it was held that the jurisdiction of a court of equity was confined to the mortgage itself and the litigant was therefore relegated to a law court for the enforcement of his legal right arising out of the note or bond or covenant. The suit on the mortgage was a proceeding in rem while the action on the note or bond or covenant was in personam. The equity of redemption, the interest of the mortgagor in the land, was equitable in its nature and foreclosable only in a court of equity; but the obligation of the mortgagor to pay the debt was purely legal and cognizable only in a court of law. The mortgagee could exhaust his right on the mortgage and if after applying on the debt the mortgaged property or the proceeds derived from a sale of the mortgaged property a deficiency existed the mortgagee could commence and prosecute an action in personam in a law court for the deficiency; and hence when we speak of a deficiency judgment we mean a judgment for whatever of the debt remains unpaid after applying the proceeds of the mortgaged property. The utmost power exercisable by a court of equity was — not to render a personal judgment — but to ascertain the amount of the indebtedness and decree a sale of the mortgaged property. In order, therefore, to enlarge the jurisdiction of courts of equity and to enable them to settle the legal as well as the equitable rights of the parties in a single proceeding in *36conformity with a, fundamental principle of equity jurisprudence, statutes have been enacted conferring upon courts of equity power to award judgments for any deficiency remaining after a sale of the mortgaged realty; and this power of a court of equity to render a deficiency judgment does not exist in the absence of statutory authority: Noonan v. Lee, 2 Black, 499, 509 (17 L. Ed. 278); Orchard v. Hughes, 1 Wall. 73, 77 (17 L. Ed. 560, see also, Rose’s U. S. Notes); January v. January, 7 T. B. Mon. (Ky.) 542 (18 Am. Dec. 211); Cobb v. Duke, 36 Miss. 60 (72 Am. Dec. 157); Frank v. Davis, 135 N. Y. 275 (31 N. E. 1100, 17 L. R. A. 306); Anderson v. Pilgrim, 30 8. C. 499 (9 S. E. 587, 14 Am. St. Rep. 917, 4 L. R. A. 205); 2 Wiltsie on Mortgage Foreclosure (3 ed.), §§ 733, 737. It must not be understood that the mortgagee was obliged to resort to his remedy on the mortgage before commencing an action on the note or bond; for the mortgagee could if he wished pursue both remedies concurrently: Colby v. McClintock, 68 N. H. 176 (40 Atl. 397, 73 Am. St. Rep. 557); 1 Wiltsie on Mortgage Foreclosure (3 ed.), § 11; 19 R. C. L. 512.
Statutes providing for deficiency judgments are by no means uniform in their provisions, but the general result is that in a proceeding to foreclose a mortgage a judgment against the mortgagor may be rendered for any residue of the debt remaining unsatisfied after applying the proceeds derived from the sale of the mortgaged property. Usually a judgment for a deficiency is allowed only after a sale has been completed and the exact amount of the deficiency ascertained: 3 Jones on Mortgages (7 ed.), § 1709a; Crisman v. Lanterman, 149 Cal. 647 (87 Pac. 89, 117 Am. St. Rep. 167, 171)) Parmele v. Schroeder, 61 Neb. 553 (85 N. W. 562, 87 Am. St. Rep. 466). The territorial *37Code -which became effective on May 1,1854, contained a section providing for a pure deficiency judgment; and this section of the territorial Code continued to be the law of this jurisdiction until the adoption of the Civil Code in 1862: State Const., Art. XVIII, § 7. The territorial Code is found in the Laws of 1853 and a reprint appears in the Laws of 1855. The section governing mortgage foreclosures reads as follows:
“When a bill shall be filed for the foreclosure or satisfaction of a mortgage, the court shall have power not only to decree and compel the delivery of the possession of the premises to the purchaser thereof, but, on the coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law; and for that purpose, may issue the necessary executions, as in other cases, against other property of the mortgagor”: Laws 1853, p. 181, §57; Laws 1855, p. 203, § 57.
When construing Section 422, L. O. L., we must remember that the territorial Code provided for a genuine deficiency judgment and hence we are entitled to presume that Section 422, L. O. L., was adopted by the legislature with knowledge of the prior statute and for the purpose of effecting whatever changes may have been wrought by Section 422, L. O. L., 36 Cyc. 1146; and, moreover, this presumption is rendered especially emphatic when we are reminded that the sections of the territorial Code which provided for the procedure in actions at law and suits in equity were prepared by James K. Kelly who was one of the three commissioners selected to prepare the territorial Code and was also one of the three commissioners who *38framed the Civil Code of 1862: 4 Oregon Historical Society Quarterly, 185.
It must be understood, throughout the discussion, that no attempt is here made to decide whether or not a mortgagee can foreclose a mortgage by a pure proceeding m rem, without asking for a personal decree for the amount of the debt: Bee Eubanks v. Leveridge, 4 Sawy. 274, 278 (Fed. Cas. No. 4544). In some jurisdictions the statute provides that a personal judgment may be rendered conditionally at the time of'decreeing a foreclosure or absolutely after the sale and ascertainment of the balance due: Springer v. Law, 185 Ill. 542 (57 N. E. 435, 76 Am. St. Rep. 57). In some states the plaintiff is not entitled to an execution for a deficiency unless he obtains permission of the court after having applied to the court for permission upon notice to the defendant: 3 Jones on Mortgages (7 ed.), § 1709a.
Generally a judgment for a deficiency cannot be docketed until after the ascertainment of the amount of the deficiency, and usually a personal decree for a deficiency does not have the force and effect of a judgment at law and become a lien upon the real property of the debtor until the excess of the debt over the proceeds derived from a sale of the'mortgaged realty has been ascertained and a subsequent judgment docketed: 2 Wiltsie on Mortgage Foreclosure (3 ed.), §§ 754, 755; 3 Jones on Mortgages (7 ed.), § 1720.
The manifest purpose of Section 422, L. O. L., was to simplify the procedure by permitting a recovery on the debt and a foreclosure of the mortgage in a single proceeding in which could be rendered a single decree covering both the note and mortgage. "We should view Section 422 with reference to the statute which was in force prior to 1862; and it must be re*39membered that such prior statute provided for pure deficiency judgments and that Section 422, L. O. L., changed the procedure by eliminating deficiency judgments. The territorial Code permitted deficiency judgments, but the Civil Code abolished them by providing for a complete and unconditional judgment; and therefore when in 1903 the legislature enacted what has since been codified as Section 426, L. O. L., it did nothing more than to declare that the holder of a purchase price note and mortgage could not have what the legislature had already said he could not have, because provision had been made for an absolute, full and complete judgment, rather than a deficiency judgment. Section 426, L. O. L., was framed on the assumption that a deficiency judgment could be obtained, but that assumption was unwarranted. There was no such thing as a deficiency judgment in this jurisdiction. To say that Section 426, L. O. L., abolishes deficiency judgments is to say that it abolishes what had already been abolished; but to say that a holder of a purchase price note and mortgage cannot have a decree for the recovery of money as provided for by Section 422, L. O. L., or that he cannot have an execution for the enforcement of that decree as permitted by Sections 213 and 425, L. O. L., is, in the opinion of the writer, to legislate judicially by saying that Section 426 contains language not found there. Section 426 does not say that a personal decree shall not be entered and it does not say that an execution shall not issue on the personal decree. It necessarily and inevitably follows that a personal decree shall be entered in obedience to the express command of Section 422, L. O. L., and that an execution must be issued whenever called for by the judgment creditor under the provisions of Sections 213 and 425, L. O. L.
*40Inasmuch as the power of a court of equity to ren- • der a personal decree for money in a foreclosure proceeding is statutory, we must look to our own statutes not only for the manner in which the power shall be exercised but also for the results which flow from its exercise. If we again turn to the provisions of our Code it will be seen that a personal decree rendered in the foreclosure of a real estate mortgage is in every particular exactly like any other personal decree in a suit or judgment in an action and is accompanied with all the incidents which attend any other decree or judgment for money, with the single exception that the mortgaged land must be sold before an execution can be issued against other property owned by the debtor. When the decree of foreclosure is rendered the court “shall” award a personal decree for the whole amount of the debt. This is the one and only personal decree which the court is allowed to make. The clerk must enter this decree in the journal just as he must enter any other personal decree; he must docket this personal decree the same as he dockets any other personal decree and when docketed this decree is a lien on all the real property owned by the debtor within the county. It is true that the law requires that the mortgaged property shall be sold first, but it is also true that the proceeds of sale are then applied on the personal decree which has been rendered for the whole amount of the debt; and if the amount of the personal decree exceeds the amount of the proceeds of the sale, the creditor is entitled to enforce payment of “the decree by execution as in ordinary cases”; and the issuance of this writ of execution is not a judicial function, but it is a purely ministerial act. The law and not the court determines the kind of execution to be issued. • Leave of the court is not necessary, but the writ of exe*41cution, prescribed by the law, must be issued when the creditor requests it: Banning v. Ray, 47 Or. 119 (82 Pac, 708, 114 Am. St. Rep. 908); In re Barker, 83 Or. 702, 710 (164 Pac. 382); Lane v. Ball, 83 Or. 404, 428 (160 Pac. 144, 163 Pac. 975). It must be borne in mind too, that—
“The proceedings sanctioned by statute with reference to the confirmation of the sale relate to the title of the property and cannot be confounded with those agencies that work an extinguishment of the judgment”: Vaughan v. Canby Canal Co., 68 Or. 566, 568 (137 Pac. 784, 785).
The fact that the Code requires that, when a personal decree for money is entered in a foreclosure suit, the mortgaged premises must be sold and the proceeds applied on the decree before execution can be issued against other property owned by the debtor does not make the personal decree conditional in any respect whatever. The decree, to the extent that it provides for the recovery of money, is absolute and unconditional and as much so as an ordinary money judgment rendered in an action at law. All persons will no doubt concede that a money judgment obtained in an action at law is absolute and unconditional; and yet when the holder of that money judgment attempts to compel payment by a writ of execution he must obey the mandate of Section 215, L. O. L., and
“satisfy the judgment, with interest, out of the personal property of such debtor”;
but, of course, if sufficient personal property cannot be found the creditor can then look to the real property of the debtor. Now, it is manifest that the fact that the laW requires the mortgaged premises to be applied on a personal decree in a foreclosure suit before other property can be levied upon and sold does *42not make suck personal decree conditional any more tkan does tke fact tkat tke law requires tke personal property of tke debtor to be applied on an ordinary money judgment, obtained in an action at law, before tke real property of tke debtor can be levied upon and sold, make 'such money judgment conditional. The money judgment in an action at law is absolute and unconditional; and so, too, a personal decree in a foreclosure suit is absolute and unconditional.
In brief, at no time since 1862 have we had in tkis jurisdiction suck a thing as a deficiency judgment or a judgment in tke nature of a deficiency judgment. It is of no avail to say tkat it has been tke practice, general or otherwise, of members of tke profession to ask for and of trial courts to enter deficiency judgments; for tke Code is tke law and must prevail. It may be conceded tkat it is tke duty of tke court so to construe tke statute as to give it effect if it can be done without resorting to judicial legislation; but it is impossible to give any effect to tke act of 1903 without resorting to judicial legislation. Tke statute does not say tkat no personal decree skall be rendered at all; ' but it plainly contemplates tkat some sort of a personal decree skall be entered and tke only decree provided for is the one specified in Section 422, L. O. L., and tkat decree so provided for is an absolute and unconditional decree for tke full amount of tke debt and is unhampered by any limitations whatsoever, except the single limitation tkat tke mortgaged property skall constitute a primary fund for tke payment of tke decree.' Tkis limitation does not affect the character or form or amount of tke decree itself, but it only fixes the order in which certain property skall be sold in satisfaction of the personal decree. To say tkat tke act is to be construed to mean tkat an execution skall *43not issue as provided for in Sections 213, 215 and 425, L. O. L., is to introduce into Section 426, L. O. L., words which, cannot be found there. It was ruled, as already stated, in Page v. Ford, 65 Or. 450 (131 Pac. 1013, Ann. Cas. 1915A, 1048, 45 L. R. A. (N. S.) 247), that the language of Section 426, L. O. L., did not prevent the holder of a purchase price note, which was secured by a real estate mortgage, from waiving the mortgage and prosecuting an action on the note to a judgment for the full amount of the debt; and, hence, if by resorting to judicial legislation language not found in Section 426 can nevertheless be injected into it so as to enable the court to say that Section 426 means that if a mortgagee brings a suit in equity to foreclose a mortgage he can only look to the mortgaged realty for payment of the- debt, then we shall have a situation presenting two possible alternatives; one where the holder of the note and mortgage can waive the mortgage, sue on the note, obtain a judgment, enforce payment of that judgment in full by levying upon and selling the real estate which has been mortgaged as well as any other property not exempt from execution; and the other where the holder of the note and mortgage can maintain a suit to foreclose the mortgage but under penalty of being confined to the mortgaged property for payment of the debt.
The conditions which prompted the adoption of the act of 1903 are well known to all. Many tracts of land had been sold when the realty market was active for more than the land was really worth, the purchaser making a partial but substantial payment on the purchase price and giving his note and a mortgage on the land for the remainder, with the result that when real estate values slumped, many purchasers found themselves unable to pay their maturing debts and conse*44quent mortgage foreclosures ended with the mortgagees retaining initial payments, reacquiring the lands and not infrequently holding judgments for a part of the purchase price of the land. This was the evil which the act of 1903 was designed to remedy; and consequently when we read the act in the light of the motive which prompted its passage: Can it be said that the legislature intended to impose a penalty upon a suit to foreclose a mortgage by confining the mortgagee to the land for his pay, and at the same time leave him unhampered in the event he elected to waive the mortgage and prosecute ah action at law on the note?
In Page v. Ford counsel for F. F. Williams and Floyd W. Williams, two of the defendants, contended in their printed brief that—
“It was clearly the intention of the legislature to limit the holder of the purchase money note and mortgage to the property itself”: 297 Or. Briefs (Part I), 144.
The same view is apparently entertained by counsel for the defendants here, for in their brief they state:
“We make bold to say that in our opinion the decision in Page v. Ford is not in harmony with the true spirit and intent of Section 426.”
If it were permissible and competent for the members of the legislature, who participated in the adoption of the act of 1903, to testify, their testimony or at least the testimony of most of them would be, precisely as is asserted in the two briefs just mentioned, that the real intention was to confine the holder of a purchase money note and mortgage to the mortgaged lands for the satisfaction of the debt and to prevent him from enforcing payment in any proceeding whatever, whether by a suit in foreclosure or an action at *45law, out of any other property than the mortgaged lands. It is true that this intention may not be expressly manifested by the language of the statute. The statute was no doubt framed upon the mistaken theory that the Code provided for deficiency judgments and that the creditor could not ignore the mortgage and sue on the note, but that he would be obliged to prosecute a suit in foreclosure; and this erroneous view of the law evidently accounts for the language employed in the statute. And yet if the statute is read in the light of the evil which prompted its passage, it is just as reasonable, if not more so, to say that the purpose of the act was absolutely to confine the holder of the note and mortgage to the mortgaged land for his pay, as it is to say that the legislature intended that every suitor who enters a court of equity with a purchase money note and mortgage does so at the risk of losing part of the money justly due him, but if he enters a court of law he can have all the money justly due him. A suit in equity is only a form of procedure; an action at law is likewise a form of procedure. The legislature did not look upon a suit in equity as an evil and an action at law as a virtue, for each is only a form of procedure designed to accomplish a result.
Under the Code as it existed at the time of the adoption of the act of 1903 and as it was afterward construed in Page v. Ford the holder of the purchase money note and mortgage could sue in a court of equity, recover a personal decree for the full amount due on the note and he could collect that personal decree in full by levying upon and selling all the available property of the debtor, including the mortgaged premises; and so, too, the same creditor could, if he preferred, ignore the mortgage and prosecute an ac*46tion on the note in a court of law and recover a judgment for the full amount due on the note and then he could afterwards collect that judgment in full by levying upon and selling all the available property of the debtor, including the mortgaged premises. Now, the result was substantially .the same whether the creditor made use of an action at law or a suit in equity. The result accomplished was the collection of the debt by applying upon it not only the mortgaged premises but also other property then owned or afterwards acquired by the debtor. The evil aimed against was furnished by the result produced by a proceeding for the collection of the debt whether such proceeding was an action at law or a suit in equity. If it was an evil to take more of the debtor’s property than the mortgaged premises when suing in a court of equity it was just as much an evil to take more of the debtor’s property than the mortgaged premises when suing in a court of law. If it is just and right to confine the creditor to the mortgaged premises and unjust to permit him to take additional property to satisfy the debt owing to him in a suit in equity it is likewise just and right to confine the creditor to the mortgaged premises and unjust to permit him to take additional property to satisfy the debt owing to him in an action at law. If, then, we view the statute in the light of the evil which it was designed to remedy: Is it reasonable to hold that the lawmakers intended to say to the holder of a purchase money note and mortgage—
“If you go into a court of equity and prosecute a suit in foreclosure you will be confined to the mortgaged land for your pay, even though the mortgaged land is not sufficient to pay the debt in full; while on the contrary if you ignore the mortgage and go into a court of law and sue on the note you are not confined *47to the mortgaged property for your pay, but you can collect the debt in full by taking, if necessary, all the property owned by the debtor, including the mortgaged property. ’ ’
As already stated, the act of 1903 was no doubt framed upon the mistaken theory that the Code provided for deficiency judgments and that the holder of a note and mortgage had, under the then existing provisions of the Code, as his only remedy a suit in foreclosure and that he could not prosecute an action at law on the note; and hence we are justified in saying that this mistaken view accounts for the wording of the statute: The writer makes no attempt to dissent from the ruling in Page v. Ford, for he believes that the holding in that case was clearly right because, notwithstanding the real intention of the legislature, the court could not have carried out that intention without resorting to judicial legislation and writing into the statute words which were not written there by the legislature. If, on the other hand, it be assumed that the legislature intended to impose a penalty upon a creditor if he humbly submitted his claim to a court of conscience but to give him free rein if he boldly demanded his pay in a court of law, still, notwithstanding such assumed intention, it will be impossible to carry out that assumed intention without resorting to judicial legislation and arbitrarily saying that words appearing in the statute mean what they do not and cannot mean and by inserting words which the lawmakers did not write in the statute, we are confronted with a statute which, if effective at all, is either completely effective or only partially effective. If it is completely effective it will confine the holder of a purchase-money note and mortgage to the mortgaged lands, whether he sues on the note and mortgag-e in a *48court of equity or prosecutes an action on the note in a court of law. This construction would carry out what was in truth the intention of the framers of the statute; but such a construction cannot be given to the enactment without straining and distorting the words found in it, nor without resorting to judicial legislation, a function which the judiciary cannot rightfully exercise. If the statute is made partially effective it will confine the holder of the note and mortgage to the mortgaged lands only in the event he enters a court of equity and prosecutes a foreclosure suit to a final decree. This construction, however, cannot be given to the statute without likewise straining and distorting the words found in the enactment nor without resorting to judicial legislation; and, besides, this construction imposes a possible penalty upon every holder of a purchase money note and mortgage who enters a court of equity and does not impose a like penalty upon him if he enters a court of law, a result not contemplated or intended by the legislative mind. So long as the decision rendered in Page v. Ford stands as an authoritative precedent, Section 423, L. O. L., cannot apply to an action at law brought upon a purchase money note; and the statute ought not to be held to apply solely to a suit in foreclosure, especially when this construction cannot be given to the statute without judicial legislation, and when it is not in harmony with the real purpose of the legislature and when it imposes a possible penalty upon every person who enters a court of equity and does not subject the same person to the same or any penalty at all if he enters a court of law.
When the plaintiff prosecuted the foreclosure suit to a decree he was entitled to a personal decree for the full amount due and the note became merged in *49that decree so that he could not afterward prosecute an action at law on the note. Indeed, the decree which was rendered adjudges that the plaintiff recover from the defendants the full amount due on the note and it therefore constitutes a personal decree for the entire amount of the debt. The recital in the decree: “that no deficiency judgment be entered against defendants” ought to be declared void and the decree given the same effect as any other decree for the payment of money. Having reduced the note and mortgage to a personal decree and the proceeds derived from the sale of the mortgaged premises not being sufficient to satisfy the decree, the plaintiff ought to be permitted to enforce payment as in the case of any other personal decree or judgment for the payment of money. The judgment should be affirmed.
Benson, J., concurs.