delivered the opinion of the court:
The appellee, H. W. Lightcap, brought five suits in ejectment in the circuit court of Mason county against tenants of the appellant, Lydia Bradley. Upon changes of venue the suits were transferred to Fulton county, where they were consolidated by agreement and appellant was substituted as defendant. The consolidated suit was for the recovery of six hundred and eighty acres of farm lands. Upon a trial before the court there was a finding and judgment in favor of appellant. Appellee brought the case to this court by appeal, and the judgment was reversed and the cause was remanded to the circuit court for further proceedings in accordance with the views expressed in the opinion then filed. (Lightcap v. Bradley, 186 Ill. 510.) The cause was re-instated in the circuit court and was again tried, resulting in a judgment against appellant. She took a new trial as provided by the statute, and then filed the bill in this case to enjoin the further prosecution of the ejectment suit. A demurrer was sustained to the bill, and appellant having elected to stand by the bill it was dismissed for want of equity, and she appealed.
The substantial averments of the bill are as follows: That on June 30, 1867, complainant was the owner of a mortgage given by Thomas B. Breedlove on twelve hundred acres of land in Mason county, including the six hundred and eighty acres involved in the ejectment suit, to secure $19,616; that Breedlove and wife conveyed the whole premises, subject to the mortgage, to Benjamin S. Prettyman, who on August 13,1868, conveyed the six hundred and eighty acres to Absalom McOune, taking from McOune a trust deed on the same to E. G-. Johnson, as trustee for complainant, to secure the payment of three notes for the sum of §5000 each, with interest at ten per cent, due in one, two and three years from date; that Prettyman delivered said notes and trust deed to the agent of complainant in part payment of the Breed-love mortgage and she released said Breedlove mortgage; that on November 13, 1868, McOune and wife re-conveyed the six hundred and eighty acres to Prettyman; that nothing whs paid on the McOune notes and no taxes were paid on the land, and in 1871 she investigated and found the lands to be swampy and worthless, vacant and unoccupied; that she took possession and redeemed from tax sales and paid th,e current taxes, and at the March term,-1872, filed her bill in the circuit court of Mason county against Prettyman, McOune and others, alleging that she had been induced to accept the McOune notes by fraudulent misrepresentations as to the value of the lands, and praying the court to set aside the release of the Breedlove mortgage and foreclose the same upon the whole twelve hundred acres; that while said bill was pending, in the summer of 1872, complainant personally entered on said lands and employed Allison Breedlove to hold and. look after the same for her, and put him in charge thereof, to rent them for pasture and cut hay from them; that said Breedlove took and held active possession of the property, putting up fences as they were needed to keep • in stock, and cutting and selling hay, and.continued in actual possession until 1878, when complainant leased the lands to John Coddington; that she gradually reduced the lands to cultivation and joined in forming a drainage district, by which they were thoroughly drained -and became of great value as farming lands; that the bill filed in the circuit court was contested by Prettyman and was pending until 1879, when a decree adverse to complainant was rendered, decreeing the foreclosure of the McCune trust deed upon the six hundred and eighty acres instead of the Breedlove mortgage on all the lands; that the lands were sold under the decree by the master in chancery and were struck off to, complainant for §10,000, leaving, a deficit due from McCune of §21,000, which has never been paid; that the time allowed for redemption from the sale expired January 27,1881, and no redemption was made; that she did not take out a deed on the certificate of purchase, but continued in the actual, adverse possession of the lands, and was in such possession when she filed the bill in this, case; that after the expiration of the time for redemption she expended about §5000 in the drainage district, about §5000 in improvements and over §5000 in taxes on. the property; that the trustee, E. G-. Johnson, died intestate in June, 1885, and on June 11,1894, his-heirs sold the lands at public sale, after notice as provided for in the trust deed, and they were struck off to complainant for §35,000, and said heirs-at-law conveyed the same to her in conformity with the power in the trust deed, and that on November 30, 1894, there was put on record a quitclaim deed of said lands from Benjamin S. Prettyman to the defendant, purporting to have been executed on September 4,1893. The bill gives the history of the ejectment suit, and alleges that complainant has fully presented her defense at law and has no remedy by the rules of law, and can only have relief in equity. The prayer of the bill is, that the defendant be permanently enjoined from further prosecuting the action of ejectment or asserting ownership of the lands or entering upon or taking possession thereof; that he be required to convey to-complainant all Ms right, title and interest in the same, and that her right to the lands may be confirmed and established by a decree of the court.
In seeking a reversal of the decree of the circuit court, counsel say that they present and rely upon the following four propositions:
“(1) Complainant entered into possession of the premises as equitable mortgagee, and is entitled to retain possession until she has received satisfaction of her debt.
“(2) Complainant has equitable title to the premises, the title having been conveyed to Johnson for her use, as the owner of the debt, her possession having been taken to enforce the conditions of the trust, the foreclosure having determined her equitable title and right to have the premises sold to satisfy her debt, the sale and subsequent expiration of the period of redemption having given her a right to demand the conveyance of the legal title. Possession with absolute right to have the legal title is equitable title. Having once acquired this, and never forfeited or conveyed it, complainant is the equitable owner.
“(3) Defendant is estopped to claim the premises. From August, 1872, to July 13, 1895, he and his grantor, having then all the title they claim now, stood by and witnessed the development of the premises from a swamp, worth, at most, §6800, to valuable farms, worth, at least, §40,000, without asserting their claim.
“(4) The statute of 1872 is unconstitutional in so far as it declares complainant’s certificate null and void. She is entitled to the benefit of the limitation laws as they were at the date of her mortgage, and to be judged by the law as then promulgated by the courts.”
The fourth of these propositions has already been directly disposed of by decisions adverse to it in Ryhiner v. Frank, 105 Ill. 326, and also in Bradley v. Lightcap, 201 id. 511, on the second appeal in the ejectment suit. The limitation act of 1872 being valid and constitutional, is equally binding upon the court in this case as in the action at law. Furthermore, if that act, which limits the life of a certificate óf purchase and the rights of a purchaser thereunder to five years after the expiration of the period of redemption, were unconstitutional, or if the construction given to it rendered it unconstitutional, a defense upon that ground would be complete and, adequate at law, and the unconstitutionality of the act would be no ground for a bill in equity. Complainant could not maintain her bill to have that question determined, since the circuit court, in the action of ejectment, would have full power to pass upon it and award to complainant all her rights. The constitutionality of the statute is now beyond question, and the only duty of the court is to enforce it according to its terms. Courts do not hesitate to execute the legislative will as expressed in statutes of limitation, nor do they try to demonstrate a hidden meaning or intention not expressed in the statute or contrary to its terms, for the purpose of defeating it. Mr. Justice Story, speaking of former efforts of that kind, said in Spring v. Gray, 5 Mason, 505: “Happily that period has passed away, and judges now confine themselves to the more appropriate duty of construing the statute rather than devising means to evade its operation.”
The language of this statute is clear and unambiguous. Plainer terms could not have been employed for the purpose of setting bounds to the rights acquired by a certificate of. purchase and limiting them to five years after the period of redemption. The statute was so construed in Peterson v. Emmerson, 135 Ill. 55. The court, in the absence of express legislation on the subject, had formulated in Rucker v. Dooley, 49 Ill. 377, an equitable rule based upon the analogies of the law, and it was urged upon the court that equity might order a conveyance based on a foreclosure sale after the certificate was barred. The court, speaking by Mr. Justice Baker, said (p. 60): “But this rule was-abrogated by the legislative enactment of 1872, not only in respect to the period of limitation, but also by the provision that if a deed was not taken out' within the time limited the certificate should be null and void. It is sticking in the bark to say that, notwithstanding the certificate is null and void, yet the sale which it was given to evidence has such vitality and force that a court may decree, by virtue thereof, the peremptory and absolute transfer by its officer of the property and title of one person to another and different person.' Such action on the part of the court is a virtual annulment of the mandate of the statute and an infringement of vested legal rights.” In that case the purchaser asking relief was in possession. The statute was enacted because the legislature were not satisfied with the limitation fixed by the court in Rucker v. Dooley, either in respect to the period of eight years and three months, or the power of a court to give effect to the certificate after that time, within twenty years. If they had been satisfied with the rule of the court in either respect they would not have changed it in both. The statute fixed the limitation at five years, and abrogated the rule that the purchaser should have any right after that time, by declaring that the certificate should be null and void. The court had not annexed any qualification to its rule respecting possession, and no exception on that ground was incorporated in thp statute. Some statutes of limitation fix limits for the commencement of actions for the possession of real estate, and one who is in possession is not subject to such limitation because he could not bring an action and already has what would be gained by a suit for possession. An argument that such a statute does not apply to one in possession is without force in the construction of a statute like this'one. The effect of possession as notice, or as relating to the doctrine of laches in courts of equity, has no relation whatever to the question.
There is nothing, in principle, in this statute or this case differing from any other statute of limitations or any case where substantial rights are lost under such a statute. When the complainant purchased the lands she was engaged in enforcing the remedies given to her by the law. The statute under which she purchased provided exactly what her purchase should be, what she should obtain by it, within what time she would be entitled to receive the title, and after what time the certificate of purchase would become null and void and all her rights under the purchase would cease. The statute gave her a right to receive the amount of her bid, with interest in case of redemption, and in case there was no redemption, to receive a deed within five years after the expiration of the period of redemption, and declared that if she did not take out the deed within that time the certificate should be null and void. If she failed to observe the requirements of the statute the fault is solely hers, against which equity is powerless to relieve her. The statute does not transfer any right or title granted by the certificate of purchase or divest complainant of it, but it fixes, in definite terms, what she purchased. The ultimate effect of statutes of limitation, generally, is to extinguish rights, and the courts have not hesitated to enforce such statutes where the effect is to transfer title from the true owner. When the bar of the statute has become absolute it is just as available for attack as for defense, and in case of disseizin by the paramount owner the title acquired by the "bar ifiay be asserted against him. One having no other title to land except under a statute of limitations may maintain his action against the one who has lost title by the same statute. McDuffee v. Sinnott, 119 Ill. 449; Faloon v. Simshauser, 130 id. 649; Illinois Central Railroad Co. v. Moore, 160 id. 9.
Under the first of the propositions of counsel above stated, they insist that complainant is a mortgagee in possession, — and if that were so it would be a good defense at law. They say that, inasmuch as the trustee, Johnson, held title for her benefit and she entered into possession, although her certificate of purchase became null and void and the rights given to her as a purchaser ceased, her former status as a mortgagee in possession remains, and she is entitled to be considered in a court of equity as an equitable' mortgagee in possession. The bill alleges, in a general way, that she took possession of the lands in 1871 and filed her bill to the March term, 1872, but alleges as a fact that while the bill was pending, in the summer of 1872, she personally entered on the lands and took possession and put an agent in charge of them. The bill is to be construed most strongly against the pleader, and it shows that she took actual posses-sion after she had filed the bill. But that question is immaterial in this controversy. She had the right of a mortgagee to the possession of the lands under the trustee and could have recovered such possession in his name for her benefit, but such right to possession ended w'h'en the land was freed from the lien of the trust deed. The title in the trustee was only for the purpose of obtaining satisfaction of the notes out of the lands. (Lightcap v. Bradley, 186 Ill. 510; Ware v. Schintz, 190 id. 189.) After condition broken she might pursue all the different remedies allowed by the law until satisfaction was obtained by one or the other, but when a decree of foreclosure was entered and the land was sold, the security had been appropriated towards the satisfaction of the debt and all her rights in the land merged in the decree and sale. (State Bank v. Wilson, 4 Gilm. 57; Wayman v. Crozier, 35 Ill. 156; Seligman v. Laubheimer, 58 id. 124; Kelgour v.Wood, 64 id. 345; United States Mortgage Co. v. Gross, 93 id. 483; Ogle v. Koerner, 140 id. 170; Davis v. Dale, 150 id. 239; Walker v. Warner, 179 id. 16; Lightcap v. Bradley, 186 id. 510.) After the sale the trustee had no title, and nothing remained of the indebtedness except the personal liability of Mc-Cune. The title that the trustee had was only for the purpose of enforcing the provisions of the trust deed, and that having been done by the court, his powers, rights and duties were at an end. It is true, that during the period of redemption the court might have appointed a receiver to hold possession and apply the rents and profits on the deficit; but- that is an equitable remedy in the nature of an equitable execution, and it was not done. If a foreclosure sale ripens into title it relates back to the execution of the mortgage and conveys all the title which the mortgagor then had, so as to cut ofi all subsequent encumbrances. But when the decree was entered and sale made the trust deed had expended its force. In Smith v. Smith, 32 Ill. 198, the court said (p. 202): “If the party elected to sell under the power or to foreclose in chancery, he could only sell or foreclose for the amount then due according to the terms of the mortgage; and this, of necessity, would be a release of the security for the amount not due.” In Rains v. Mann, 68 Ill. 264,-it was held that a foreclosure for a part of a debt released the lien of the mortgage for the balance. If Prettyman or a judgment creditor had redeemed, he would have held the title to the land discharged of the trust deed and all claims of the complainant, although there was an unpaid balance due from McCune. The existence of such an unpaid balance did not give any right to enforce the mortgage lien against the same property a second time. If another person than the complainant had purchased at the sale and obtained possession we apprehend that no one would say that he was a mortgagee in possession, and it cannot be different merely because she was the purchaser. The sale created a new relation, in no manner affected by the fact that complainant had been the party secured by the trust deed, but dependent upon the statute, which permitted any person to become the purchaser and admitted all as bidders on terms of absolute equality.
The second proposition is, that the complainant has equitable title to the premises through the trust deed, the sale and the expiration of the period of redemption, which gave her a right to a master’s deed. It is argued that after the expiration of fifteen months the right of redemption of Prettyman and his creditors was gone, and that right being barred he had no title, but that the complainant is the equitable owner, although the certificate became null and void. If the title of Prettyman passed out of him at the expiration of the period of redemption it must have gone somewhere. It was not in nubibus, and it did not go to the complainant or any other person. The certificate of purchase conveyed no-title to the complainant. Johnson v. Baker, 38 Ill. 98; Rockwell v. Servant, 63 id. 424; Huftalin v. Misner, 70 id. 55; Hays v. Cassell, id. 669.
In Whiting v. Butler, 29 Mich. 122, the four justices, were divided in opinion and the judgment was affirmed under the statute. Three opinions were delivered by different justices, and Mr. Justice Christiancy concurred in the opinion delivered by Mr. Justice Cooley. There was a sale on execution of an interest in certain lands, and a subsequent sale of the same interest on another execution. Those justices were of the opinion that the-title under the second sale was paramount,' and that while it was true that the execution debtor’s title after the expiration of the period of redemption would have-been a mere legal title, with the whole equitable right in the purchaser, such title did not terminate with the failure to redeem, but would continue, either at the will or through the mere inaction of the purchaser at the sale, indefinitely; that the owner had something very much beyond the mere right to redeem; that he had the legal title, and might sell and convey it, mortgage and lease the premises and defend his possession, and those-rights would not be forfeited or lost by failure to redeem, and that the purchaser’s right to the premises would only be perfected so as to divest the legal title and enable the purchaser to demand possession when the sale should be carried into effect" by the execution of a deed.
The title must remain in the original owner until it passes out of him by the execution of a deed; and this is a title for all beneficial purposes. The complainant had no right to the possession, the beneficial use or the rents and profits, as purchaser or by virtue of the certificate, and the court would have had no power to award possession to her. (Bennett v. Matson, 41 Ill. 332; Myers v. Manny, 63 id. 211.) In Cochran v. Fogler, 116 Ill. 194, it was held that a purchaser was not entitled to possession until he had obtained a master’s deed and complied with the terms of the decree by producing the deed and a certified copy of the order confirming the sale, and before that he could not call upon the mortgagor to 'surrender possession. The complainant’s decree, under which she purchased, (a copy of which is annexed to the bill,) provided for the execution of a deed to the purchaser in the usual way, and that upon the execution and delivery of the master’s deed the purchaser should be let into the possession of the premises conveyed to him, and that upon the production of the master’s deed of conveyance and a certified copy of the order of the court confirming the sale, the person in possession should surrender the possession thereof to the grantee. Complainant had no right to the possession after the sale by virtue of the law, and her bill alleges none by virtue of any agreement. It is true, as was said in Whiting v. Butler, supra, that one who is entitled to a deed of premises has an equitable right in them; but that equitable right arises out of the fact that such person is entitled to the deed. In Wright v. Douglass, 2 N.Y. 373, the interest of a purchaser at execution sale was levied on by writ of attachment. There was a judgment in the attachment suit and a sale and a deed was executed, and it was held that the purchaser at the execution sale had an interest in the premises, and that the sale on attachment was at least equivalent to the assignment of the certificate. A sheriff’s deed was executed under the execution sale, and the interest, legal and equitable, of the purchaser at that sale was bound by the attachment. In Ketchum v. Schicketanz, 73 Ind. 137, the rights of a wife were involved. In Indiana a surviving wife is entitled- to one-third of all lands in which her husband had any equitable interest at the time of his death, and the inchoate interest vests absolutely in her when such lands are sold and conveyed away from him under some judicial proceeding, the same as at his death. Marie Schicketanz was the wife of Jacob Schicketanz, and he had a certificate of purchase under a decree of foreclosure. He assigned it to his son, George, in fraud of creditors and of the Bankrupt act, and George obtained the deed. Jacob being adjudged a bankrupt, the assignment to the son was set aside and a conveyance to the assignee in bankruptcy was ordered. It was held that in legal contemplation the lots conveyed were a part of Jacob’s estate, and that the conveyance to the assignee in bankruptcy was under a judicial proceeding, so that one-third vested in the wife. In these cases the party who was held to have an interest in the lands was entitled to a deed, and the deed was executed. After the expiration of the period allowed for redemption the complainant in this case became entitled to a deed, and that right continued for five years, during which time she might have obtained a deed, but when that time expired and her certificate of purchase became null and void, the only ground for holding that she had equitable title to the premises ceased to exist.
This court has repeatedly held that the holder of a certificate of purchase barred by the statute has no interest, either at law or in equity. It was so held in Peterson v.Pmmerson, supra; and in Seeberger v. Weinberg, 151 Ill. 369, where a certificate of purchase had become void under the statute, it was held that the holder had no remedy which he could assert upon the certificate, as that had become a nullity, and he could not enforce any remedy on the original mortgage,, as that remedy had been completely exhausted by the foreclosure and sale. The court said (p. 380): “Whether the lapse of time is to be given the effect of extinguishing his right or of merely barring his remedy, he has no further title or interest in the premises described in the certificate, which either he or his grantee can enforce, either at law or in equity.” Brown v. Ridenhower, 161 Ill. 239, was a case like this, where the complainants, holding under a regular series of conveyances from the purchaser at a special commissioner’s sale under a decree of foreclosure, were in possession and filed their bill to set aside as clouds upon their title the deeds made by heirs of the original mortgagor. It was held that the complainants had no interest in the premises which could be enforced in equity.
There is no pretense that complainant is entitled to the legal title or to a conveyance of it, but the claim is that two estates are to run along, side by side, permanently in this land, the legal title in the defendant and the equitable title in the complainant. We have been referred to no authority which holds that in the absence of an express active trust the two estates can be permanently separated in that way. In the case of express passive trusts the use is executed by,the statute and the legal title transferred to the person who has the beneficial estate, and the general rule is, that wherever one has an equitable estate and there is no active trust he is entitled to a transfer to him of the legal estate. In this case there is no trust, expressed or implied, resulting or constructive. Defendant’s title is a perfectly legal title-, and not a mere cloud to be canceled and removed. It has not become void, but the certificate of purchase under which complainant claims is void. Complainant has no title to the premises under her purchase and the bill shows no right to possession, and we do not see how it can be said she has an equitable estate in the land.
There is nothing alleged in the bill which amounts to an equitable estoppel. All that is alleged is silence on the part of Prettyman and no representation of a falsehood. Where silence is the ground of estoppel, it is essential that the party estopped shall have knowledge of the facts and the other party be ignorant of the truth, and be misled into doing that which he would not have done except for such silence. Complainant took no deed and is chargeable with knowledge of that fact, and there is no allegation that Prettyman knew it. She had the means of ascertaining Prettyman’s title by reference to the public record, and the facts alleged do not create an estoppel. Thor v. Oleson, 125 Ill. 365; Mullaney v. Duffy, 145 id. 559; Holcomb v. Boynton, 151 id. 294.
The decree of the circuit court is affirmed.
Decree affirmed.
Boggs and Wilkin, JJ.: We do not concur in the de- , cisión of this case.