Burns v. Burns , 233 Iowa 1092 ( 1943 )

I respectfully dissent from the majority opinion and also from portions of the dissenting opinion of the chief justice, although I concur in the result reached in the latter opinion, which will be referred to herein as the dissenting opinion.

The note and mortgage were executed April 16, 1925, and the note was due April 16, 1927. It was not paid, and since the bar of the statute of limitations was not suspended or extended in any way prior to April 16, 1937, it became effective against the enforcement of both the note and the mortgage on that date. On March 2, 1936, while the note and mortgage were still enforceable, Mitchell secured a judgment against the mortgagor, who has at all times pertinent owned the land. This judgment, on the date last given, became a lien upon the land, as provided by section 11602, Code of 1935, but subject to said mortgage. It continued thereafter to be a lien. When the bar of the statute, on April 16, 1937, became effective against the note, the latter became unenforceable, and the mortgage, which was but an incident of the note, also became unenforceable. Actions to enforce either one were banned by section 11007 (6) of the Iowa Code — the general statute of limitations. In the words of the layman, they were "outlawed." When the bar of the statute became effective against the note, the lien of the mortgage upon the land terminated instantly. It ceased to exist. It is immaterial what became of it; the important fact is that it was not then a lien upon the land covered by the mortgage. The decisions of this court agree upon this. The language in each opinion may not always be the same, but there can be no fair doubt of the meaning of the language, or the thought, or intention expressed by the court. I will refer to but a few of these cases. In Clinton County v. Cox, 37 Iowa 570, 571, the court said:

"When the debt is discharged or, by operation of law, may nolonger be enforced ITS FUNCTIONS TERMINATE, and not before. [Citing seven decisions of this court.] These principles determine the question before us, for, unless it appears that the debt is discharged, or is, under the law, no longer capable ofbeing enforced, the deed of trust stands as a security for its payment." (Italics and capitals supplied.)

Can there be any reasonable question of the meaning of the capitalized words? Plainly they mean that the mortgage is no longer a lien on the land, that it no longer "stands as a security" for the payment of the note. Neither can there be any fair doubt as to the meaning of the italicized words. They clearly refer to the bar of the statute of limitations, and to no other "law," or "operation of law."

In Kerndt Bros. v. Porterfield, 56 Iowa 412, 414, 9 N.W. 322,323, upon which the majority opinion is largely based, the court said:

"An action to foreclose a mortgage is not barred by the statute of limitations so long as the debt remains unpaid and capable ofbeing enforced. Brown v. Rockhold, 49 Iowa, 282; Clinton County v. Cox, 37 Iowa, 570. The mortgage is an incident of the debt andfollows it, and its existence as a lien is only terminated whenthe debt ceases to be enforceable."

Under section 11007 (6) and under the repeated decisions of this court, the mortgage debt, on April 16, 1937, "ceased to be enforceable," and under the decision quoted and our pertinent decisions generally, the "existence of the mortgage as a lien (was) terminated."

In Fitzgerald v. Flanagan, 155 Iowa 217, 221, 222,135 N.W. 738, 740, Ann. Cas. 1914C, 1104, which is the latest decision of this court on the particular matter which I am now discussing, the court, after stating that in those jurisdictions (citing many decisions) in which a real-estate mortgage creates an estate in the land "the mortgage security is not extinguished, although the debt be barred," continues thus:

"But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Minnesota, Kansas, Mississippi (by recent statute), Missouri (by recent statute), Nevada, Texas, and in Wyoming, the mortgage, being considered a mere incident to the debt, is, as a general rule, extinguishedwhen the debt for which it is given is barred by the statute oflimitations." (Citing decisions of the courts in the states named. Italics supplied.)

On the page following the quotation, Justice Deemer indicates what he meant by the phrase, "as a general rule," by noting some exceptions in the other states mentioned. No one would seriously dispute that this definite and unambiguous language states and means that when the debt is barred the mortgage securing it is extinguished. If contemporaneous construction were needed, one may turn to the dissenting opinion of Justice Weaver, who thought the evidence insufficient to sustain the decree, where he states, at page 233 of 155 Iowa, page 744 of 135 N.W.:

"The contention on his [Justice Deemer's] 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 limitations or otherwise, the lien or security which is a mereincident thereto falls with it, a position so emphaticallyaffirmed by this court that it is an uncalled for waste of timeto cite the precedents."

I will make no comment upon the attempt of the majority opinion to read a different meaning into other language in the Fitzgerald case.

At the same instant the lien of the mortgage upon the land "ceased to exist," was "terminated" and "extinguished," the lien of the Mitchell judgment superseded the lien of the mortgage in effect and priority and became the first lien upon this land. This cannot be successfully controverted.

On October 5, 1937, which was subsequent to the date when the statute of limitations became effective against the note and mortgage and at a time when the mortgage was not a lien upon the land, Eichhoff procured a judgment against the mortgagor, which upon its rendition became a statutory lien upon the land of the mortgagor. The lien of this judgment was junior and subject to the lien of the Mitchell judgment.

On March 7, 1942, approximately seventeen years after the note was given, fifteen years after it was due, four and a half years after it was outlawed, and six years after the Mitchell judgment was rendered, Doan, the holder of the note, Joe Burns, the maker, and Damien Burns, brother of Joe, got together, and, for a cash consideration of $50 paid by Damien to Doan and the promise of $100 more if the mortgage could be made effective, the note and mortgage, evidencing a face value in excess of $2,000, were assigned by Doan to Damien Burns, and Joe Burns and wife revived the note by executing a written admission of and promise to pay the indebtedness, as provided by section 11018, Code of 1939. Such a statutory provision has been in effect since the Code of 1851. It is a proper and wise provision. It is akin to the rule of procedure that the defense of the statute of limitations must always be pleaded. Certainly a debtor must be accorded the right to waive the statute or to extend or renew the life of his financial obligations. That we believe is a primary purpose of the legislation. As between the debtor and the creditor, the revivor may be made either before or after the statute of limitations has run.

The majority opinion gives priority to the mortgage over the first judgment (Mitchell), and priority to the second judgment (Eichhoff) over the mortgage, and priority to the first judgment over the second judgment. In commenting upon the theory responsible for this conclusion, the opinion, in its fourth division, states:

"1 Black on Judgments, 2d Ed. 710, section 456, refers to it as `an extremely interesting and peculiar question — called the "triangular question" * * *.' See, also, 31 Am. Jur. 38. Holliday v. Franklin Bank, 16 Ohio 533, 535, states: `If it be attempted to settle the question upon the principle of superiority, it runs in a circle and produces no result'."

Without running in a circle, I readily agree with certain results reached in the majority opinion, to wit, that the Eichhoff judgment is prior to the mortgage and the Mitchell judgment is prior to the Eichhoff judgment. But I carry the syllogism to its necessary conclusion and hold that the Mitchell judgment is therefore prior to both mortgage and the Eichhoff judgment.

I concede that there is one decision of this court under which the holding in the majority opinion that the mortgage is prior to the Mitchell judgment may be sustained unless it is defeated by the "controlling equities" theory in that decision, which the chief justice insists is controlling in the determination of the appeal before us. That decision is Kerndt Bros. v. Porterfield, supra, 56 Iowa 412, 415, 9 N.W. 322, 324. It is an unsound opinion, in my judgment. Not only because it disregarded the controlling equities, a matter with which we are not concerned, but because of the unsound rule of law on which the decision is based. In that case, Porterfield executed a note and a mortgage on his land securing the indebtedness. Before the note was barred he executed two other notes secured by a mortgage on the same land to another party. I think it may be fairly assumed that the two notes and the second mortgage were given for valuable consideration received at the time of their execution. After the statute of limitations had run against the first note and mortgage, and after he had given the second note and mortgage, and after foreclosure proceedings had been started on the same, but before decree and sheriff's deed thereunder, Porterfield executed a written promise to pay the first note and thereby revived that note and the mortgage securing it. The trial court gave priority to the second mortgage. This court reversed, and held that the new promise removed the bar of the statute as a defense to the foreclosure of the first mortgage and the court ordered it enforced as a lien prior and superior to the second mortgage. I will quote a part of the reasoning given in support of this court's conclusion, to-wit:

"When his [the second mortgagee's] interest was acquired, he took it subject to the [first] mortgage, with the knowledge that the debt could be revived by a new promise and the mortgage lien would stand as long as the debt existed. When the mortgage is foreclosed under a new promise removing the bar of the statute, he is in no different condition than he was in when he acquired his interest. If he was satisfied to acquire his interest while it was subject to the mortgage, he ought to be content to hold it in that condition. He can urge no equity which will relieve his property from the lien of the mortgage. Waterson v. Kirkwood,17 Kan., 9; Schumaker [Schmucker] v. Sibert, 18 Kan., 104. * * * It seems that a different rule is recognized in California. See Wood v. Goodfellow, 43 Cal., 185."

It is true that the second mortgagee took his mortgage subject to the first mortgage, and he knew that the life of the first note and the lien of the first mortgage might be prolonged by a revivor before the bar of the statute of limitations became effective. In such event the lien of the first mortgage would not be suspended, and the second mortgage would remain a second mortgage during the prolonged period. This never happened. He also knew when he took his notes and mortgage that the first mortgagee might not press his claim during the limitation period, either from choice or from lack of diligence, in which event the lien of the first mortgage would be extinguished and his mortgage would supersede it as a first lien. This is just what did happen. When he took his notes and second mortgage he took them subject to whatever advantages or disadvantages might accrue to him. He was entitled to the advantages which did accrue to him through the carelessness or indifference of the first mortgagee. The opinion in the Kerndt case states that "he can urge no equity." Was it not an equity and a benefit to him that his mortgage was advanced from a second to a first lien? When the statute had run against the first note and mortgage, the second mortgagee was in a more advantageous position than he was when he received his notes and mortgage. The decision deprived him of that advantage. The fact that he did nothing to bring about his improved position is not a sound reason for depriving him of that advantage. Neither is there merit in the expressed reason of the court that the second mortgagee was in no worse condition than when he first took his mortgage. One is ordinarily entitled to any advantage which rightfully comes to him in the course of events, or "the march of time."

I wish at this point to speak of a matter on which Justice Oliver and I are in accord, that is, that a junior judgment lienholder may plead the bar of the statute of limitations against a prior secured debt. The chief justice disagrees with us and comments on the matter in his dissent. What I say on that point is therefore directed to that part of the dissenting opinion.

In the Kerndt case there was no question raised that the second mortgagee could not plead the bar of the statute against the first mortgage. He undoubtedly had that right. He had a lien upon the property covered by the first mortgage and a definite interest therein. As said in 17 R.C.L. 963, section 331:

"Broadly speaking any person who claims title to, or interest in, any real estate may invoke the aid of the statute of limitations as against a claimant whose claim is prior in time to the person invoking the aid of the statute, where the prior claim has been barred by the statute of limitations."

In 37 C.J. 707, 710, section 27, the author states:

"In a suit to foreclose a mortgage the statute of limitations may be invoked by any person who has an interest in the real estate sought to be foreclosed."

Numerous decisions support the principle as stated above. Subsequent grantees and mortgagees, holders of tax titles, and junior lienholders of all kinds, may invoke the defense. A judgment creditor, having a general lien upon the property of the mortgagor, may plead the statute against the cause of action of a prior mortgagee on a note and mortgage. Buss v. Kemp Lbr. Co.,23 N.M. 567, 170 P. 54, L.R.A. 1918C, 1015.

In Davis v. Bartz, 65 Wash. 395, 398, 118 P. 334, 335, the court said:

"It follows of necessity that any one interested, whether as owner, mortgagee, lien claimant, or otherwise; any one who may defend against the lien, or show by competent evidence that it is not a lien as against his interest, has the right to invoke the statute if the action is not commenced as against him within the statutory period."

It is often said that the right to plead the statute of limitations is a personal privilege of the debtor, but it has been many times held that others may also plead the defense when it is necessary to protect property rights. After a review of the cases, the court, in Brandenstein v. Johnson, 140 Cal. 29, 32,73 P. 744, 745, said:

"The theory of all the cases above cited is, that while the general rule is, that the plea of the statute of limitations is a personal privilege, that rule does not extend to subsequent property rights over which he has no control."

Other decisions, and authorities from many more, which could be cited, are Graves v. Seifried, 31 Utah 203, 87 P. 674; Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 576, 113 P.2d 963, 136 A.L.R. 770; Kiel v. Staber, Tex. Civ. App., 116 S.W.2d 809.

It is sometimes asserted that only one in privity with the debtor may set up the defense of the statute. The courts are becoming quite liberal in broadening the meaning of the term "privity," and extending the relationships within its scope. In Stryker v. Rasch, supra (opinion on petition for rehearing, 113 P.2d 963), the court held that an adverse possessor of mortgaged premises might plead the statute of limitations, as against the contention that the bar of the statute might only be raised by one in privity with the mortgagor. In Buss v. Kemp Lumber Co., supra, 23 N.M. 567, 572, 170 P. 54, 55, L.R.A. 1918C, 1015, the court said:

"A majority of the cases sustain the view that a judgment creditor, in cases like those at bar, is in privity of estate with the mortgagor, his judgment debtor, and that he may plead the statute of limitations. In such cases it would seem on principle that no distinction can be made between the right of a judgment creditor to plead the statute and the right of a junior mortgagee."

In Lord v. Morris, 18 Cal. 482, 491, speaking on the matter of the personal privilege, the court said:

"But with respect to property placed by him [the debtor] beyond his control, or subjected by him to liens, he has no such personal privilege. He cannot at his pleasure affect the interests of other parties. His grantees or mortgagees, with respect to the property, stand in his shoes, and can set up any defense that he might himself have set up to the action, either to defeat a recovery of the property or its sale."

See, also, Brandenstein v. Johnson, supra, 140 Cal. 29,73 P. 744, and DeVoe v. Rundle, 33 Wash. 604, 74 P. 836, in each of which a junior judgment lienholder was permitted to plead the bar of the statute against the enforcement of what had been a superior lien. Other cases in point are Foster v. Butler,164 Cal. 623, 130 P. 6; Paramount Securities Co. v. Daze, 128 Cal. App. 515,17 P.2d 1049; Fakes v. Vilven, Tex. Civ. App.,119 S.W.2d 895; Flack v. Boland, 11 Cal. 2d 103, 77 P.2d 1090.

While it is a well-recognized principle that limitation statutes generally pertain to the remedy only, and are therefore subject to legislative control, yet, when the limitation has once become fixed and effective, the great weight of authority supports the sound principle that its acquisition is an absolute right, and a vested asset, which not even the legislature can take from its possessor.

While no one has a vested right in the continuation of any statute of limitation with respect to any past or future demands against him, which would prevent its legislative modification or repeal so long as the statutory period has not already elapsed against any of these demands, yet the authorities and decisions are in practically complete accord that, if the statute has completely run and barred the action against a person on a particular debt, he has a vested right to rely on that statute as a defense of which he cannot be deprived against his will. For an instructive opinion on the question, see Board of Education v. Blodgett, 155 Ill. 441, 447, 40 N.E. 1025, 1027, 31 L.R.A. 70, 46 Am. St. Rep. 348, wherein the court said:

"In almost all of the States of the Union in which the question has arisen, it has been held that the right to set up the bar of a statute of limitations as a defense to a cause of action, after the statute has run, is a vested right, and cannot be taken away by legislation, either by a repeal of the statute without saving clause or by an affirmative act, and that it is immaterial whether the action is for the recovery of real or personal property, or for the recovery of a money demand, or for the recovery of damages for a tort." (Citing many authorities.)

See, also, Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447; Moore v. State, 43 N.J. Law 203, 39 Am. Rep. 558; Kiel v. Staber, supra, Tex. Civ. App., 116 S.W.2d 809, 811; Town of Bradford v. Brooks, 2 Aikens (Vt.) 284, 16 Am. Dec. 715; 17 R.C.L. 674; Thompson v. Read, 41 Iowa 48; 34 Am. Jur. 23, section 13; id. 37, section 33.

In the Kerndt case, supra, this court deprived the second mortgagee of a vested right which had accrued to him by reason of the bar of the statute of limitations against the enforcement of the first note and the consequent removal of the first mortgage as a prior lien.

In the opinion in that case the court cited two Kansas decisions in support of its holding, and a California decision which it said was apparently to the contrary. The first case cited, Waterson v. Kirkwood, 17 Kan. 9, has but slight, if any, application to the point involved. In that case the court held that the resident grantees of the former owner-debtor could not plead the bar of the statute against the owner's debt and mortgage on their land, because the statute was tolled against the debtor by reason of his absence from the state. This decision is contrary to the California case cited and to the great weight of authority. The second case cited, Shumaker v. Sibert,18 Kan. 104, 111, 26 Am. Rep. 765, 769 (the title is Schmucker v. Sibert), in my opinion is more against the decision in the Kerndt case than for it. It holds that the revivor of a note barred by the statute of limitations will revive a mortgage executed to secure it, so far as the interest of the mortgagor in the premises but not as to a grantee of the mortgagor receiving deed previous to such revivor. The court said:

"* * * When the note is barred, the mortgage is also barred, and no subsequent payment, promise, or acknowledgment can revive the mortgage as to property which the mortgagor has prior thereto conveyed to a third party. Whenever the mortgage is barred, the property is free from the lien. It is, as respects the mortgage, as though the latter had never existed. If therefore the mortgagor no longer owns the property, he cannot impose a burden upon it — his power to bind the property has ceased. He is as powerless over it as though he had never owned it. He can revive the note, as he could give a new note, for no rights but his own are involved. He can revive the old mortgagejust so far and so far only as he could give a new mortgage, andthat is, to bind his own property. Day v. Baldwin, 34 Iowa, 380." (Italics supplied.)

The decision is sound law and has the support of reason and good common sense, as all sound law has. This comment is repeated in Richards v. Baker, 186 Okla. 533, 99 P.2d 118, 119.

The majority opinion cites cases of this court holding that a mortgage does not convey any estate in the land. No one is making a contrary contention. A real-estate mortgage is but a specific lien, a security. It is also an encumbrance. It evidences a parting or setting aside of a portion of the value of the land as security for a debt and which may be taken to pay that debt. It is a reduction of the owner's equity in the land and a pledge of it to another. It is placing a valuable interest in the land in another. A mortgage, in fact and effect, is a pro tanto sale. But whether it be a sale or a mortgage, a deed or a trust deed, the interest which is parted with by sale or by mortgage cannot be affected by a revivor of the debt by the owner-mortgagor after the sale or mortgage is made, and after the debt has been barred by the statute of limitations. The revivor can affect only the equity or interest retained by the debtor. It cannot affect or displace the priority of the lien which attached when the bar became effective and prior to the subsequent revivor. To do so would be a reduction in the value of the junior mortgagee's security. It is, of course, the privilege of the debtor to, at any time, revive the debt against himself, and to revive the lien of the mortgage against any interest in the land which he retains, at any time within the twenty-year life of the mortgage; but it is an unjust and an unsound rule of law which permits the debtor, by such revivor, to impair or destroy any interest, security, value, or equity which he has transferred to another. I know of no decision to the contrary where the debtor has conveyed the land, or his equity of redemption therein, by deed — that is, where he has parted with all interest in the land. What I contend for is that there is no difference in principle, and should be no difference in law, between such a transaction and a mortgage — between a straight deed and a trust deed, or a deed with a defeasance clause. In the Kerndt case the junior lien was by a mortgage. In the case before us the junior liens were effected by judgments. But there is no difference with reference to the point in issue. In either event the lien is brought about by the conduct of the debtor. If he had confessed the judgments, the liens would have been created by his direct action, but when he contracts debts which result in judgments, the liens thereof are just as certainly created by him, though, perhaps, more indirectly. The fact, as the authorities cited herein show, that persons interested in the real estate in any way — grantees, mortgagees, lessees, holders of tax titles, judgment lienholders, and junior lienholders of all kinds — may plead the statute of limitations as a defense, is quite significant, and is definite proof that the same principle applies to all, and that whatever interest any of them may have is protected against such a revivor as we have in this case.

I make no contention that Mitchell would have any right to plead the statute had the revivor taken place before the bar of the statute became effective, nor do I contend that Eichhoff would have any case if he had obtained his judgment after the revivor — the reason, as applied to the first instance, being that the lien of the mortgage would never have been removed or extinguished, and the Mitchell lien would never have advanced in seniority, and in the second instance, the mortgage lien would have been restored before the Eichhoff judgment was rendered. As to liens attaching after the expiration of the statutory limit, the test is, Was it before or after the revivor? If before, the lien takes precedence; if after, the restored mortgage lien takes precedence. Authority for these statements is found in decisions and authorities cited or relied upon in the majority opinion. In Clark v. Grant, 26 Okla. 398, 400, 109 P. 234, 28 L.R.A., N.S., 519, Ann. Cas. 1912B, 505, the prior mortgage lien became barred by the expiration of the statutory limit, and thereafter it was revived. After the revivor the judgment liens attached. The court held that the restored mortgage lien took precedence. I subscribe fully to such a rule. But that is not what happened in this case. Here, both of the judgments were in existence and had attached before the revivor. The holding in the Clark case sustains both the Mitchell and the Eichhoff judgments. That court said:

"As the mortgage is a mere incident to the note, subsequent revivor thereof by part payment after it is barred revives not only the note but also the mortgage, and that, too, as against judgment lienors, such as plaintiffs in error, whose liens didnot attach to the mortgaged property until after said payment andconsequent revivor."

But immediately following in the Oklahoma opinion is this significant sentence:

"It is only such as have an interest in the mortgaged propertyacquired prior to the revivor whose rights thereby remainunaffected. Childs v. Thompson, 81 Mo. 337; Courtner v. Etheredge et al., 149 Ala. 78, 43 So. 368; Schmucker v. Sibert,18 Kan. 104, 26 Am. Rep. 765; Hubbard et al. v. Mo. Val., etc., Ins. Co.,25 Kan. 179; Capital Co. v. Merriam, supra, [60 Kan. 397,56 P. 757]." (Italics supplied.)

Had the judgment liens in the Oklahoma case been acquired prior to the revivor, as are the judgment liens in this case, that court would have sustained them.

The majority opinion quotes at length from Consolidated National Bank v. Van Slyke, 27 Ariz. 501, 508, 234 P. 553, 555, 38 A.L.R. 825, relative to the irreconcilable conflict between the equitable principle which I contend is the sounder and the equitable principle urged in the majority opinion and the dissent of the chief justice. The majority opinion terms the latter principle the "majority rule," but I do not find it so designated by any authority in that opinion. However, when the Arizona court decided the case it resolved its doubts in favor of the second rule, for two reasons, one being that, while the statute of limitations is a legitimate defense, it is not one of right but of repose and not to be extended beyond its plain terms; "and, second, because in our opinion the waiver of the statute of limitations in favor of a prior lien, made before the statute hasrun, does not impose an inequitable burden on a junior lienholder who acquired his lien, with that prior lien, to his knowledge, actual or constructive, still enforceable." (Italics supplied.)

I have no quarrel with such a position. I have already stated that had the revivor taken place before the statute had run against the Burns note Mitchell would have no case, simply because in such event the lien of the Burns mortgage would never have been lost. Its life would have been prolonged before it was ended, and the Mitchell judgment would have remained a second lien. But that is not what happened. The Van Slyke case, on its facts, is not applicable to this one, but it is not unreasonable to assume that if the revivor had been after the bar of the statute, instead of before, as it was, the court would have decided that such revivor would have placed "an inequitable burden" on the junior lienholder.

The majority opinion quotes at length a discussion of the "two distinct and opposing lines of authority" in Smith v. Bush, supra, 173 Okla. 172, 175, 44 P.2d 921, 923. But the situation in that case is identical with that in the Van Slyke case, supra. The lien of the mortgage was never lost by lapse of time. The note was renewed in writing before the expiration of the statute and was kept alive by payments until the suit was brought. The court, in its decision, said:

"We accordingly hold in this case that the statute of limitation is not available to the defendants herein [they held leases for oil, gas, etc.] for the reason that within five yearsprevious to the commencement of this action, interest paymentshave been made by the mortgagors, who are the debtors on the note secured by the mortgage and who still own an interest in the mortgaged premises."

There is nothing in the decision in Smith v. Bush, supra, indicating in any way a departure from the sound principle announced in Clark v. Grant, supra, at page 400 of26 Okla., page 234 of 109 P., to wit:

"It is only such as have an interest in the mortgaged propertyacquired prior to the revivor whose rights thereby remain unaffected." (Italics ours.)

The majority opinion states:

"It will be noted that the reasons given in Smith v. Bush and the Van Slyke case, supra, as the basis for the majority rule, are substantially the same as those stated in the Kerndt case. True, the cited cases in general refer to revivors prior to the statutory bar. But the principle that a junior lienholder, with actual or constructive notice of a valid and enforceable prior lien, takes his lien subject to the extension or revival of such prior lien, should be equally applicable whether the revivor is before or after the expiration of the statute of limitations."

Respecting the first sentence in the quotation, I have to say that I have set out the exact reasons the court gave in each case and they have no similarity to those stated in the Kerndt case. As to the second sentence, it is true that the cases cited in general refer to revivors prior to the statutory bar. In such cases there is, of course, no removal of the lien of the prior mortgage. The decisions in such cases have no applicability to cases like the one at bar. In fact, the principle for which the majority opinion contends, by a reasonable construction of its language, is applicable only when the extension of the time of payment, or the tolling of the statute, takes place before the expiration of the statutory bar. No complaint could fairly be made of such a principle. It is the exact construction which was placed upon it in the Smith and Van Slyke cases. Furthermore, if he is to be charged with disadvantages of having the statute tolled, why should he not be entitled to advantages accruing when the bar of the statute becomes complete? Decisions like the Smith and Van Slyke cases, supra, are like our decisions in Gilman v. Heitman, 137 Iowa 336, 113 N.W. 932, and First National Bank v. Woodman, 93 Iowa 668, 62 N.W. 28, 30, 57 Am. St. Rep. 287. In all of them the revivor was before the bar. But none of them is authority for the decision in the Kerndt case. There is no other decision in Iowa like it. What was said about it in Gilman v. Heitman and Bank v. Woodman was not necessary to the decisions. That it is contrary to principle and to precedent, in the opinion of the annotator, fairly appears, in my judgment, from his comment on the case in 101 A.L.R. 346. See an instructive annotation commencing on page 337 in said volume respecting tolling of the statute of limitations as affecting conveyances subsequent to the mortgage. The majority opinion cites and quotes from some Texas decisions which are not of any material support to the opinion, as I read them.

I can see no good reason for the distinction which that opinion makes between the Mitchell and the Eichhoff judgments. The opinion states of the Mitchell judgment:

"In the case at bar the rights of the junior lienholder never vested. The right to enforce the mortgage was simply suspended subject to revivor. When the Mitchell lien attached, Mitchell wasbound to know and consider that, under the law then in effect,the mortgage might thereafter be revived, and that this revivormight be before or after the statutory period. First National Bank v. Woodman, supra. In other words, Mitchell took his lien subject to the right to revive the mortgage. The enforcement of this right of revivor will take away from Mitchell no vested rights and he has no ground for complaint." (Italics supplied.)

I submit that if the above statements are true as to the Mitchell judgment, they are true as to the Eichhoff judgment, and that the statements would be just as proper if the name "Eichhoff" were substituted in each place where the name "Mitchell" appears. Continuing, the opinion states:

"The status of the Eichhoff judgment differs from that of the Mitchell judgment in that the Eichhoff judgment was secured after the remedy upon debt and mortgage was barred and before the revivor." (Italics supplied.)

What solid reason is there for saying that the right to enforce the note and mortgage "was simply suspended" as to the Mitchell judgment but was "barred" as to the Eichhoff judgment? After the expiration of the statutory limit on April 16, 1937, the lien of the mortgage was either "suspended" as to both judgments or it was "barred" as to both. It is a case of either fish or fowl. It cannot be both. The lien of the mortgage, under our decisions, was extinguished as to both judgments. Continuing, the opinion also states:

"Since there was no enforceable mortgage when the Eichhoff lien attached, he was not bound to anticipate that the mortgage might thereafter be revived. To give the subsequently revived mortgagepriority over the Eichhoff judgment lien, in effect would amountto casting upon Eichhoff an additional burden not within hiscomtemplation at the time his judgment lien attached. While the line of demarcation between the status of the Mitchell and Eichhoff liens is not broad, we think it is distinct." (Italics supplied.)

The line is not broad, certainly, and neither is it distinct. And there is very little protein in any argument which seeks to sustain the distinction. Respecting Mitchell, the opinion states that he was "bound to know and consider that * * * the mortgagemight thereafter be revived, and that this revivor might bebefore or after the statutory period." This is the obiter dictum of First National Bank v. Woodman, supra. But of Eichhoff, the opinion states that, "he was not bound to anticipate that themortgage might thereafter be revived." Just why should there be a difference between what Mitchell and what Eichhoff should anticipate? Why should Mitchell be required "to know and consider" that there might be a revivor after the bar was complete, and Eichhoff need not even "anticipate" such a thing? If Mitchell was bound by such a happening, why was not Eichhoff? Eichhoff got his judgment on October 5, 1937, and Joe Burns had until April 16, 1947, to revive the mortgage. Assuredly, the fact must be that neither was required to give any consideration to any revivor after the bar of the statute and after their liens had attached, because it could not disturb liens which were in effect in the interim during which the lien of the mortgage had "ceased to exist."

Now, take note of this statement:

"To give the subsequently revived mortgage priority over the Eichhoff judgment lien, in effect would amount to castingupon Eichhoff an additional burden not within his contemplationat the time his judgment lien attached."

I am reminded of those old saws about "blowing hot and cold," and "what is sauce for the goose is sauce for the gander." Turning to the majority opinion, we find a statement of the two conflicting principles, to wit:

"`The first principle may be stated thus: "A junior lienholder, when he acquires his lien, is entitled to assume the rights outstanding against him at the time will not be increased or enlarged without his consent, and a subsequent waiver of the statute of limitations as to the senior lien constitutes such enlargement." * * * The other principle is: "If a junior lienholder had notice, actual or constructive, of a valid and enforceable prior lien, at the time he acquired his rights, he took the latter subject to a possible extension of the time of payment, and cannot complain thereof, as it is only an incident of the lien."'"

The majority opinion insists that the second principle is the correct one. It uses the second principle to give precedence to the restored mortgage lien over the Mitchell judgment, and, as shown by the last-above italicized quotation, it uses the first principle, which it insists is the incorrect one, to give precedence to the Eichhoff judgment over the restored mortgage lien. Verily, the "triangular question" is not only "extremely interesting and peculiar," but its ways are as devious as Bret Harte's "heathen Chinee." The fact is that the "first principle" is applicable to both judgments, since the revivor enlarges the rights against both judgment lienholders.

It is my opinion that the priority of the judgments should be determined by priority of attachment, which is the general rule. This gives priority to the Mitchell judgment. Both of them are prior and senior to the mortgage, since both were existing liens against the land after the bar of the statute against the mortgage and prior to its revivor. I would overrule the principle of law announced in Kerndt Bros. v. Porterfield, supra, 56 Iowa 412,9 N.W. 322, and affirm the decree of the able trial court, by giving priority to the Mitchell judgment, and subject and junior thereto, in order, the Eichhoff judgment and the Burns mortgage.

I am a believer in the rule of stare decisis but I do not bow down in idolatry at its shrine, particularly when I believe the decision to be unsound and when it is vulnerable to a construction that will probably effect repeated injustices in the future. Principles of law affecting title to real estate, or the priority of liens thereon, should be plain and definite. The status and priority of these various liens or encumbrances should be clearly evident at any particular time. The owner-debtor should not be permitted to keep junior lienholders, and the public generally, in ignorance and doubt as to the status and value of these liens for many years after the statute of limitations has run against a lien prior in point of time, by holding in reserve the threat of a revivor. Such a rule lends itself most readily to a fraud upon creditors. A debtor might give a spurious mortgage to a confidant and carry it along on the records as an apparently valid lien for a period up to twenty years from its date, ready with a revivor to defeat any judgment or mortgage liens which attached prior to the expiration of the statute of limitations.

Both law and equity serve the vigilant and not those who sleep upon their rights. Neither do they favor the enforcement of stale claims.

The "controlling equities" rule mentioned in the opinion in the Kerndt case as an escape from the evils which I mention does not effectually prevent these evils. It does not remove the uncertainty and doubt respecting the priority of liens. A controlling equity may mean many things and no one may be certain until a court passes upon the matter.

I respectfully dissent from the majority opinion of Justice Oliver, and concur in the result of Chief Justice Mulroney's dissenting opinion. I would affirm.

MANTZ, J., joins in this dissent.