dissentiny.—I cannot concur in the conclusion reached in the foregoing opinion. It is, in my judgment, so absolutely erroneous that I cannot acquiesce in- the decision, *218but am constrained to express my dissent thereto, which I will do as briefly as possible.-
The facts of the case, so far as they are involved in the single point which I shall discuss, are these: In June, 1870, defendants recovered judgment at law against one Mather. In September following, Keck brought an action upon certain notes executed by Mather, and secured by mortgage upon certain lands. A judgment was subsequently rendered in this action, which, granting the relief therein sought, provided that the mortgaged land should be subject to the lien of the judgment from the date of the recording of the mortgage. The lands were subsequently sold upon the judgment, and the time prescribed for redemption by the statute having expired, a sheriff’s deed was executed under which plaintiffs now claim the lands.
The defendants, not having been-made parties to the action brought by plaintiffs, wherein the judgment was rendered which by its pi’ovisions is declared to be a lien upon the lands, dating back to the execution 'of the mortgage, claim the i-ight to redeem the lands as junior incumbi’ancers, insisting that their equity of redemption has not been foreclosed by the judgment and sale. Plaintiffs bring this action to quiet their title to the lands, claiming that defendants have no right or equity of redemption in the property. The defendants in a cross-bill set up the right claimed by them, and prayed that it might be enforced. The District Court dismissed defendant’s cross-petition and granted the relief sought by plaintiffs.
I will proceed to set out the provisions of the statute in force at tlie time the rights of the respective, parties accrued, which are applicable to the case under consideration. They will be found in the Revision of 1860.
“ 3660. The holder of any mortgage of real estate must proceed by civil action, in the Distinct Court, when he wishes to foreclose the same.”
“4179. The action on a note, together with a mortgage or deed of trust, for foreclosure of the same, shall be by equitable proceedings and tried by the second method of -trying equitable actions. An action on the bond or note alone, without *219regard therein to the mortgage or deed of trust, shall be by ordinary proceedings.”
“ 3663. If separate suits are brought on the bond or note, and on the mortgage given to secure it, the plaintiff must elect which to prosecute. The other will be discontinued at his costs.”
“3664. Where a judgment is obtained in an action on the bond, the property mortgaged may be sold on the execution issued thereon and the judgment shall be a lien thereon from the date of the recording of the mortgage. ■ The mortgagor or any other person having a lien on the mortgaged premises, or any part thereof, may redeem after sale within the same time and on the same terms as are provided in Chapter 125, in cases of real estate sold on ordinary or general execution.”
Section 3663 and the first sentence of 3664 are copied from the Code of 1851.
Under Chap. 103, Acts Eighth General Assembly, Rev., p. 873, the right of redemption from sales made upon execution within the time prescribed by statute, was extended to the defendants and creditors holding liens upon the property involved in cases wherein decrees or judgments were rendered upon the foreclosure of mortgages. Before this act, sales under decrees of foreclosure were absolute and without redemption.
The question to be determined in the case under consideration is this: Do judgments in the actions provided for and contemplated in sections 3663 and 3664 of tho Revision of 1860, and the sales thereunder of the mortgaged property, cut off the right of junior lien holders, who were not made parties to the actions, to redeem after the expiration of the time prescribed in the statute for redemption from sales upon execution?
I. In equity holders of an interest in or liens upon mortgaged premises, as well as the mortgagors, have the right to redeem from the mortgage until their right is cut off by a decree or judgment in a proper action. This right is called the equity of redemption and the proceeding to cut it off is called fore*220closure. It would be hardly proper to refer to the familiar rules prevailing in equity, which will not permit land covered by a mortgage, upon default of payment of the money secured thereby, to be taken from the mortgagor without his right to reclaim it by the payment of the mortgage debt, and which extend protection to the mortgagee by giving him a right of action wherein he can require the mortgagor to redeem from the mortgage, to pay the mortgage debt, and in default thereof have the right of redemption cut off — foreclosed. These rules, as well as the history of their origin, are familiar to the profession. The rights secured thereby are recognized solely in equity; the law takes no cognizance of them and will not enforce them. Hence, the mortgagor’s right to redeem is called his equity of redemption.
This equity of redemption exists, unless the right is taken away by statute. It is, of course, subject to legislative power exercised for its regulation.
It will hardly be necessary to remark that the right is not defeated by the statutes above cited or by any other legislation of this State. This is not claimed in the case under consideration. But it is insisted that the redemption provided for in § 3664 of the Revision above cited, which must be made within the time prescribed by the statute therein referred to, is the equity of redemption, or srrpersedes and abrogates that right. If that redemption be not made, it is claimed that, as no other right to redeem exists, no redemption can be afterwards enforced.
It will be readily seen, upon even a cursory reading of the section just mentioned, that the redemption therein provided is not the equity of redemption but the redemption from sales upon execution provided by statute, and may therefore very properly be called statutory redemption. In the absence of this statute and the act found upon p. 873 of the Revision, sales of mortgaged property upon foreclosure decrees were absolute and without redemption as against all persons who were parties to the foreclosure proceedings. These statutes extend the statutory redemption provided in cases of sales on execution to sales upon decrees of foreclosure. They do not *221take away the right before existing called equity of redemption; their sole purpose was to give another right to the mortgagor — the statutory right of redemption. To my mind this proposition is too plain for argument. All that is necessary to bring the mind to assent thereto is the reading of the statutes cited, at the same time keeping in mind the nature of the right designated equity of redemption, and the familiar equity principles above stated.
IL. If we concede, as maintained in the foregoing opinion, that the proceeding authorized by §3664 is not intended for the foreclosure of the mortgage, and I think the proposition is correct, we must then concede further that the equity of redemption is taken away by statute in order to reach the conclusion adopted by my brothers. If the equity of redemption still exists under our statute, it was not cut off by the action, for, as conceded, there was by the action no foreclosure in cutting off of the equity of redemption. It is admitted on all hands that the equity of redemption exists under the Eevision of 1860. If the equity of redemption is not cut off by the action it may be enforced.
III. Another objection to the conclusion of the foregoing opinion is unanswerable. If defendant’s equity of redemption is not taken away by statute, it exists in them as a valid and valuable right. The judgment upon the note operating as a lien back to the recording of a mortgage is made to divest this right, although defendants were not made parties to the action. This cannot be admitted. Eights cannot be divested unless those who hold them have had their day in court. Surely, the courts will never put a construction upon a statute that will give it such an operation, when by a different interpretation it can be made to speak in harmony with the principles of justice, law and the constitution.
If we regard the proceedings authorized by § 3664 as a ■foreclosure of the mortgage then will all lien-holders who were not made parties to the action be protected in their equity of redemption.
IY. In my opinion, the action at law authorized by § 3664 was not intended by the legislature to foreclose the equity of *222redemption existing under a mortgage; surely, not to foreclose such right held by those not made parties to the action. The judgment thereon would doubtless bind those who were made parties, and by establishing the lien of the judgment against the parties to the suit, so that it would date from the recording of the mortgage, it would doubtless have the effect to cut off all rights and claims of such parties. However, it is neither important nor proper to determine the effect of such judgment further than it may enter into the questions involved in this case.
Y. If the conclusion of my brothers in the foregoing opinion is correct, the action for foreclosure was by the Revision superseded by an action at law which was far more effective in granting relief to the mortgagee, in that it cut off the equity of redemption of all persons, even those who were not parties thereto. It is not a little astonishing that the profession of the state, in thirteen years’ practice under the Revision, did not discover the superior advantages the action at law upon the note possessed over the chancery proceeding of foreclosure. Learned counsel would spend much time and great labor in searching the records for incumbrances junior to the mortgages they undertook to foreclose, and would cause their clients to expend large sums in costs for the service of process upon the holders of such liens, all of which could have been dispensed with by the simple, speedy and safe action at law, which, the foregoing opinion in effect holds, would, cut off all liens accruing after the recording of the mortgage, even though the incumbrancers were not made parties to such action. This doctrine I have never before heard advocated, and I am sure its announcement will create surprise in the profession throughout the State.