I concur with Judge Bishop in the views above expressed.
Supplemental Opinion, October 31, 1903.
Supplemental opinion on reheañug. — Denied.
PeR Curiam.Plaintiffs’ counsel, in an able and exhaustive petition for a rehearing, challenge the positions taken by the majority of the court on a former hearing, and ask for a modification of the conclusions reached on that hearing, in any event, because of an alleged misapprehension of the facts.
Turning again to the abstracts, which are very voluminous, we find that case JSTo. 2,300 was an action brought by plaintiffs, Hawley et al., against Griffin et al, to redeem from tax sales; and that Eo. 572 was originally an action brought by Griffin etal. against John Irwin etal., to quiet title to certain of the lands in controversy, in which plaintiffs herein filed petitions to vacate the-decree rendered therein, and for a new trial, under section 3154 et seq. of the Oode of 1873. In this last case notice was actually served upon defendants within one year from the death of Irwin, and under the doctrine announced by the majority the holding of the trial court in that case should have been reversed. But the question as to the effect of the reversal of that case remains to be considered. Counsel concede that the application therein was to vacate the decree quieting title in the Griffins, and for a new trial of that-action; and the claims heretofore; made have..been, *692not that the petition to vacate the decree in No. 572 amounted to an action for equitable redemption under-sections 89-2 and 898 of the Code, but that by reason of these petitions for vacation, the decree in the action to quiet title brought by Griffin against John Irwin et .ah, should not be regarded as conclusive against them. The cases were tried together, under a stipulation that the petitions for new trial should first be determined; but there was no agreement that the decision in No. 2,300 should depend in any way upon the-conclusion reached in No. 572. Case No. 2,300 was an action to redeem from tax sales brought by the heirs of John Irwin, deceased. In this action Griffin et al., filed answers, which included counterclaims, asking that, in the event plaintiffs were denied redemption, their title to the premises be quieted in them. Manifestly, this case No. 2,300 must be affirmed under the rule announced by the majority in the original opinion, and it follows that defendants in No. 2,300 are entitled to a decree quieting their title in and to the lands described in their cross-petitions. It not only appears from the pleadings filed in the case and the concessions of counsel that the petition filed in No. 572 was to vacate the judgment and decree rendered therein, and for a new trial of the original action, but the cases were tried on the theory that No. 2,300 was the action to redeem, and that the petition was filed in No. 572 to get rid of the decree rendered therein. This being true, the reversal of No. 572, which should have been ordered in the original opinion, will do the plaintiffs no good, for since the filing of the petition therein their affirmative rights have been extinguished by lapse of time.
*6934. vacating decree to quiet title: insane owner: procedure. *692If No. 572 had been an equitable action, as was Snyder v. Ives, 42 Iowa, 157, relied upon by plaintiffs’ counsel, it may be that, having gone into a court of equity, that court would retain jurisdiction to the end, to afford complete relief to the parties. But counsel concede that *693it is not. It is in truth an action by ordinary proceedings to vacate a judgment under the provisions of the statute before referred to. There is a manifest distinction between such a proceeding and an action in equity in the nature of a bill of review. One is governed by the conditions and limitations bontained in the statute, and the other by the ordinary rules of procedure. Denby v. Fie, 106 Iowa, 299; Manning v. Nelson, 107 Iowa, 34. That an action in equity will lie in such cases, see Bowen v. Mill Co., 31 Iowa, 460; Clark v. Ellsworth, 84 Iowa, 525; Bond v. Epley, 48 Iowa, 600. The extent of the jurisdiction is to grant relief on the grounds stated in the Code, but the methods of procedure are different, as will appear from a review of the cases cited. This distinction was pointed out in the original majority opinion, in referring to the Snyder-Ives Case, but was not emphasized to any great extent.
s. vacating fensef couñ-•terciaim. What, then, is the purpose and effect of proceedings under the sections of the Code to which we have referred? Section 3154 of the Code of 1873 provides that the court ir*ay, after the term at which a judgment is rendered, vacate or modify the same or grant a new foqgj. Section 3159 of the same Code provides that the judgment shall not be vacated until it is adjudged there is a valid defense to the action in which tire judgment was rendered; and section 3162 provides that, if the judgment is affirmed, an additional judgment for costs shall be rendered against plaintiff in error. We thus see that the proceedings are to vacate or modify a judgment or order, or to grant a new trial in a case where there is a valid defense to the action, for some of .the grounds enumerated in the statute; and, if a new trial is awarded, it is for the purpose of allowing the’ defeated party to establish his cause of action if he be plaintiff, or to sustain his defense if he be the defendant. The statute does not contemplate the introduction of a new cause of *694action by a plaintiff, nor of a counterclaim by the defendant. The defendant, if granted a new trial, has the right to interpose any defense he may have had to plaintiff’s cause of action, but is not awarded the new trial to enable him to interpose a counterclaim or cross-demand. This he may do in a new action; and, unless he has a defense to plaintiff’s cause of action, he cannot avail himself of this remedy. This much seems clear.
6. vacation of decree by heirs: right defense. Now, the reason for granting the heirs of Irwin a vacation or modification of the decree quieting title in Griffin was because Irwin was insane when the action was brought against him and when the case came on for trial, and he did not appear by guardian, rmr was a guardian ad litem appointed for him. The only defense he could have interposed to the action, even if a guardian of either kind had been appointed, was that, he was insane when his lands were assessed for taxation and sold for nonpayment of taxes, and that he had a year after his disability was removed within which to redeem. This would doubtless have been a defense to Griffin’s action to quiet title; and, when the decree quieting title was vacated, the case stood as an action to quiet Griffin’s title to the lands based on tax deeds, and a defense to it that Irwin was insane at the times mentioned. No guardian was ever appointed for Irwin in his lifetime, and Griffin, with the case standing in the position we have stated, might have elected to dismiss his suit to quiet title after the vacation of his former decree. He was not required to prosecute it after the original decree had been vacated. But, suppose he had elected to proceed, with Irwin still alive, but insane. He would doubtless have asked for the appointment of a guardian ad litem, and such a guardian would have answered, setting up Irwin’s insanity, and asking that his rights be protected. This guardian ad litem could not have redeemed, for he would have had no money with which to *695do it; and he would not have asked to do so, because he-should know that the statute gave the insane defendant one year from the time his disability was removed within which to make redemption. It is very clear, then,- that, had John Irwin lived, and secured a vacation of the decree-quieting Griffin’s title, this would have been the situation.How, then, did his death change it, if at all? His heirs,, as successors to his rights, might have interposed the same-defenses he could have interposed; and as his successors they can interpose no other. In order to secure the vacation, they must show that John Irwin had a defense to Griffin’s cause of action. Without this showing they could not be heard to question the decree rendered in No. 572. Having secured the vacation on this theory, they are entitled to no greater rights by reason of the vacation than Irwin himself would have had had he been properly represented in the original action. Moreover, Griffin, as we have said, had the right to discontinue his action after the vacation of the decree, had he seen fit; and Irwin’s heirs could not, by reason of the acquisition of a right of redemption long after the original decree was rendered, insist on the case remaining in court for the assertion'of rights accruing to them under another statute entirely independent of anything connected with the original litigation. In other words, their right of redemption was not a defense John Irwin might have interposed to Griffin’s cause of action in his case to quiet title. This came to them in virtue of a statute- which limits their rights and fixes the nature of the action. We mean sections 892 and 893 of the Code of 1873, referred to in the original opinion of the majority. Had Irwin’s heirs brought independent actions to set asidé the original decree in case No. 572, and for permission to redeem under sections 892 and 893, instead of proceeding under section 3154 etJseg., of the Oode, it may be that a court of equity would have granted them relief; but such action should have been-*696brought under sections 892 and 893 of the Code, and, unless commenced within one year, they would have had no standing in court. Case No.'"2,300 was an equitible action to redeem, and in that action they virtually asked that the decree in 572 be set aside, and they given permission to redeem, but that action was not commenced in time. The proceedings in 572 were simply to get rid of a decree quieting title in Griffin, and, while they asked for some other relief, which could not have been granted in that form of action — for instance, the bringing in of new parties, the substitution of others, and some other matters —it is-conceded that the action was brought under section 8154 et seq. of the Code of 1873.
But let us assume that- they could have interposed hheir independent right of redemption because of the in-:,sanitv of John Irwin. This could only be done by counterclaim in the main suit of Griffin v. John Irwin, after -the substitution of some parties and the introduction of others. Such relief would not have been a defense to Griffin’s cause of action to quiet title. It would be purely affirmative, and could only be granted on cross-petition. Until the original decree was vacated, and necessary parties brought into the original suit-, this counterclaim had no place in the litigation. It was not defensive. Hence this counterclaim could not be considered until after the decree was vacated under section 3154 of the Code. At that time lapse of time had extinguished their ¡right to redeem, and the counterclaim could not have been considered. No matter what the aspect of the case, ■it is manifest that plaintiffs herein cannot claim any benefit from their proceeding to vacate and modify the decrees quieting title, except in those cases where they brought their actions to redeem within the time limit prescribed in section 892 of the Code. The order on the petition to vacate the decree in No. 572 will be reversed, bqt the decree in No. 2,300 must stand affirmed.
*697The unusually able and exhaustive petitions ior rehearing seem to call for some further observations from the majority of the court regarding some phases of the case. Counsel say that under the opinion as it is written an insane ■person labors under greater difficulties than one who is sane, .because, if a sane person had brought suit under section 893 of the Code of 1873, he would be held to have commenced his action when the original notice was delivered to the ..sheriff for service. This is no doubt true, and for the very good reason that the only time statute with reference to ■.such actions is a pure statute of limitations, as held in Smith v. Callanan, 103 Iowa, 224, whereas, if an insane person commences action under sections 892 and 893 of the ■Code, his action is held hot commenced until actual ser■vice of notice, as held in this case. This is also true, and the reason for so holding appears in the foregoing majority opinion. The statute conferring this right on an insane person or his representatives has as its inducement a time limit, which enters into and controls the right. The insane person or his representative is given one full year, not possessed by sane persons, and the legislature in its wisdom no doubt thought this was ample time within which this leniency should be exercised. The right is purely statutory — that is, it did not exist at common law; :and, as the statute conferring the right contains its own limitation, this limitation inheres in the right and controls it. It is similar to a contract limitation, which we have held does not bar the remedy, but extinguishes the right. Farmers' Co-operative Creamery v. State Ins. Co., 112 Iowa, 608; Harrison v. Ins. Co., 102 Iowa, 115. The supposed inequalities of this construction of the statute are more apparent than real. It must constantly be borne in mind that the insane person or his representatives are given one year more than a sane one in any event, and in some cases this period may amount to many years within •which they may bring their actions to redeem. The legis*698lature saw fit to grant this leniency, which did not, as we have already observed, exist at common law, but so. limited it in the enacting clause that time became of the essence of the right; and, unless this privilege is exercised within the time named, it is forever lost.
Plaintiffs, recognizing the force of Proska v. McCormack, 56 Iowa, 318, and Parkyn v. Travis, 50 Iowa, 436, and other like cases, contend, however, that, while the majority might have been right had the limitation been a contract one, vigorously contend that they are all wrong in applying the rules there announced to a statutory limitation. If this were a pure' statute of limitations, there would be no doubt of their position. But it is not. We have attempted to show that time is expressly made of the essence of the right created, and it is just as binding and effective as if there had been a contract between the parties embodying the same terms. The difficulty lies in failing to distinguish between the two.
The majority have already distinguished the Snyder-Ives Gase, and we need only add that a re-examination of that case shows that it was not a proceeding under section 3154 et seq., but an independent action in equity. Indeed,, the court, in its opinion, expressly says that it does not decide whether section 8156 was applicable to the case in any respect. Hence all that was said about proceedings under that section is pure dictum. The facts recited show beyond all question that it was not an application under section 3154. Moreover, section 3156 expressly provides that proceedings to correct mistakes of the clerk — which was the cause of action in that case — shall be by motion served on the adverse party, and within one year. See Bond v. Epley, 48 Iowa, 600. Even should we hold that Snyder v. Ives is an authority for plaintiff’s contention, it would not avail them,for, as%e have seen,their proceedings to vacate will not give them the right to redeem in virtue of an entirely independent statute conferring that privilege.
*699Many of the sections found in chapter 2, title 18, of the Code of 1897, which is a virtual reprint of the Code of 1873, are held applicable.to pure statutes of limitation, and to nothing else. Carrier v. R. R. 79 Iowa, 80; Sweatt v. Faville, 23 Iowa, 321; Wilson v. McElroy, 83 Iowa, 593; Fritz v. Fritz, 93 Iowa, 27; Fisher v. Shropshire, 147 U. S. 133 (13 Supp. Ct. Rep. 201, 37 L. Ed. 109); Harrison v. Hartford Fire Ins. Co., 102 Iowa, 112. The whole chapter has reference to limitation of actions, and not to time limits which inhere in the cause of action either by contract or by statute, and there is, to our minds, no difference between the two.
We have gone over the entire record again with care, and the majority reach the conclusion that case No. 572 should be reversed, instead of affirmed, and that No. 2,300 should be affirmed, as originally announced, and the original opinion will be modified to this extent and otherwise adhered to.
The petitions for rehearing will therefore be overruled. —Overruled.