(dissenting). — Had the majority been content to reverse the decree below on the ground which is intimated near the close of its opinion, that 'plaintiff took the title to the land from his father under an express or implied agreement to assume and pay the mortgage debt, I should burden the record with no dissent. Such conclusion, though in my opinion without the slightest support in the record, would satisfy that primitive sense of justice, which looks with disfavor upon the statutory city of refuge erected for the relief of delinquent debtors, and the decision being made to turn upon a' mere question of fact. A decision based thereon could háve been announced without any discussion of doubtful propositions of law, and without in any manner disturbing legal or equitable rules which have hitherto had the uniform and unquestioned adherence of this court. That the discussion indulged in does open the door to doubts and uncertainties which Will hereafter return to embarrass the court and work the abandonment of well-setttled principles I am fully persuaded.
I. Thát' under the ancient conception of the effect *233of a mortgage as a conveyance it has been and is still held in some states that suit may be brought to enforce such mortgage, even after right of action at law on the debt is barred by the statute of limitations, is freely admitted, and the position taken by the appellee herein involves no denial of the correctness of that proposition in such jurisdictions. The contention on his part has been that, under the statutes and repeated decisions of this court, a mortgage in this state does no more than to evidence a lien or security for the payment of a specified debt, and that, when the right to enforce that debt is lost by the effect of the statute of limtations or otherwise, the lien or security which is a mere incident thereto falls with it, a position so emphatically affirmed by this court that it is an uncalled for waste of time to cite the precedents. Indeed, the majority opinion finally concedes that discussion of the ancient rule is largely academic under the law of this state and the conceded facts of this "case, but it will be very difficult for the bar or the trial courts of the state tó avoid the impression that the prominence given to the rule of the common law and the imposing array of authorities by which it is supported would not have been embodied in the opinion had they not in some way or to some extent influenced the mind of this court in its disposition of the case.
The statement of the majority that, where land is conveyed subject to a mortgage, such land is the primary fund from which the debt should be paid, that the mortgagor is the debtor and the land conveyed “is simply security for the debt,” and that the grantee of the legal title may plead the bar of the statute, is not open to dispute, but it leads not a step nearer the conclusion finally announced, but rather in the opposite direction. The further proposition that the grantee of mortgaged lands may waive the benefit of the statute is equally indisputable. There are very few rights secured by law to the litigant which he may not waive. But, immediately following this' proposition and in apparent sup*234port of its application to the ease at bar, the opinion cites and quotes at large with apparent approval as precedents for its conclusion from McLane v. Allison, 60 Kan. 441 (56 Pac. 747); Railroad Co. v. Tiernan, 37 Kan. 607 (15 Pac. 544); Foster v. Bowles, 138 Cal. 346 (71 Pac. 494, 649). Each of these cases is made to turn upon the rule which prevails in some jurisdictions but has been abolished or superseded by statute in this state, that a partial payment is such an acknowledgement of the debt as will toll the statute of limitations. Are we to understand, notwithstanding our statute to the contrary, that the rule as to the effect of partial payments has been resurrected for the government of future cases of this character? That such seems to be intended is indicated by the subsequent statement of the opinion that “it has been held that part payment of a debt secured by mortgage made by a grantee of the mortgagor revives the debt so as to toll the statute of limitations in actions to foreclose the mortgage.” In support of this, we are cited to a list of cases from Louisiana, New Jersey, Illinois, and other states, in none of which there appears to be a statute like our own. Upon the foundation thus laid, the opinion declares it to be “well established” that the grantee of a mortgagor who takes subject to the mortgage may revive or keep alive the debt secured by the mortgage so as to render it enforceable against him, although perhaps he can not revive the debt against the mortgagor. If this is to be limited to a grantee who has assumed the debt secured by the mortgage, the rule stated is perfectly sound, but the majority carefully refrain from such qualification.
So limited, the mortgage would remain enforceable simply because he who assumed to pay the debt having waived the defense of the statute a right of action exists thereon, and because the debt remains an enforceable demand the lien given to secure it may also be enforced. If not so limited, and we are to hold that the mortgage may *235under any conceivable circumstances be foreclosed after right of action upon the debt has been fully barred and is no longer an enforceable claim at law against any person whomsoever, then we have the incongruous result. A mortgage under the law of this state vests no title or estate in the mortgagee. Its only force and effect is to create a lien to secure a debt which exists wholly independent of the mortgage. It is, as has frequently 'been said by the courts, a “mere incident” of the debt. Tet the effect of the majority opinion is to say that, although the debt to be secured has been lost, the security survives, and, though that which was the principal and fundamental thing has ceased to exist, that which was dependent thereon for its vitality still lives. The debt ceases to have legal vitality but that which was a mere incident to survive in full vigor of eternal youth. In other words, though the substance is dead, yet by some process of legal incantation its ghost can be made to walk. "When this.becomes possible, the "Witch of Endor will cease to enjoy that pre-eminence in the world of magic which has been conceded to her for the last 4,000 years. To reach this result, we override and discredit the logic of every decision heretofore rendered by this court having any bearing upon the question. Smith v. Foster, 44 Iowa, 442; Clinton v. Cox, 37 Iowa, 570; Brown v. Rockhold, 49 Iowa, 282; Gower v. Winchester, 33 Iowa, 303; Jenks v. Shaw, 99 Iowa, 604; Kerndt v. Porterfield, 56 Iowa, 412; Newman v. De Lorimer, 19 Iowa, 244; Mahaffy v. Faris, 144 Iowa, 226; Boynton v. Salinger, 147 Iowa, 541; La Rue v. King, 74 Iowa, 290; Adams v. Holden, 111 Iowa, 59; Bank v. Jess, 127 Iowa, 454. I have no expectation that the foregoing citations will stay the announcement of the opinion against which this dissent is directed, but I am not without hope that they will afford valuable food for reflection by the court, when in the near future under the stimulus of this decision the catacombs of safety deposit companies, banks, and law offices are ransacked for dead *236and forgotten mortgages to be galvanized into an appearance of life, and made the pretext for a flood of speculative litigation.
Upon the general merits of the case, I am strongly of the opinion that, while the plaintiff’s petition to quiet his title might well have been denied, the defendant’s cross-petition for foreclosure of the mortgage was rightfully dismissed as being barred by the statute of limitations, and as being" wholly unsupported by any competent evidence that the mortgage debt was ever assumed by the plaintiff. In short, I think the decree below should be affirmed.