(dissenting). It is conceded in this case by the majority df the court that the plaintiffs in error would be entitled to subrogation under the first mortgage upon the property in controversy, except that they did not bring their action in time. The majority of *151the court places the affirmance of the judgment of the court below upon the ground that the plaintiffs delayed too long in bringing their action. Under the old system of practice, where law and equity were kept distinct and the Statute of Limitations did not strictly apply to proceedings in equity, there might be some authority for declaring this rule in this case. But we have abolished the distinction between law and equity, and all causes of action are governed as to the time when they shall be begun by our express statutory provisions. If this action was begun within the Statute of Limitations governing such cases, the court cannot say that the plaintiffs were guilty of laches in that respect. The right' to maintain a suit does not any longer depend upon the length of a chancellor’s foot, as has been said, but depends upon the positive legislation of the State. The statute is broad enough to cover every action that may be brought; and it is the rule that is to be applied, and not any question of laches upon the part of the plaintiffs.
Admitting, as the majority of the court do, that the plaintiffs were entitled at one time to the right of subrogation, they were entitled to it at the beginning of the suit, unless their action was barred by the Statute of Limitations ; and this is not claimed by the court. The only real question, admitting the right of subrogation, is, Would it be inequitable to grant the subrogation, by reason of any change in the relation of the' defendant in error, the Nordyke & Mamón Company, to the property? The Nordyke & Marmon Company took this mortgage under which it claims title subject expressly to the first mortgage. It brought its suit, filed its bill on the chancery side of the United States Circuit Court, to foreclose the second mortgage, subject to the first mortgage. Hence, *152the holder of the first mortgage was not a party, and was not a necessary party. When it took its decree, that could be no broader than its bill; and when it took its deed, that could have been no more comprehensive than its decree. Hence, it must have taken its title subject to the first mortgage. In what way was its condition altered to its disadvantage by having the title subject to the first mortgage rather than having its second mortgage? In order to perfect its title, it would be compelled, according to the very terms of its foreclosure, to pay the first mortgage. If subrogation is allowed, it will be compelled to pay the first mortgage and nothing more.
In my judgment, there is no reason existing under the statement of facts under which the case was decided why subrogation should be denied; and, in my opinion, the judgment of the District Court was erroneous, and the judgment should be reversed with direction to grant the prayer of the plaintiffs’ petition upon the agreed statement of facts.