The Statute of Limitations in Mortgage LawSource: Harvard Law Review, Vol. 16, No. 6 (Apr., 1903), p. 445Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1323675 .

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NOTES. 445

" The clhancellor is master of his own writ, and though the claimant hold a legal title, is under no compulsion of law to issue the wvrit, so long as sound consideration of public morals and conscienice forbid."

THE STATUTE OF LiMI'lATIONS IN MORTGAGE LAW. - In discussing mort- gage law the two conflictinig conceptions must be noted: first, that a mort- gage gives a right in land distinct and separable from the debt; anid second, that it gives a mere lien wholly incidental to, and dependent upon, the dlebt. In states adopting the first view the mortgagee acquires a legal title, and the questionis raised by the statute of limitations are comparatively simple. As it is well recognized that he has two distinict rights, one on the debt and the other against the land, the fact that the first is barred does not affect the second; and it is general law that the mortgagee may foreclose at any timie, even after the debt is uLnenforceable. Yhayer v. Maan, 19 Pick. (Mass.) 535. Still this is inot universal law even in "title " states. Hari is v. Mills, 28 Ill. 44.

On the other hand in states where the mortgage is coinsidered as purely incidental, more difficult questions arise. In strict logic, if the mortgage is a mere incident to the debt, it is clear that the extinguishment or out- lawing of the one should extillnuish the other. 'Ihis doctrine, harsh as it is upon the mortgagee, has been adopted, either by statute or at common law, in a few states. See JONES, MORT. ? 1207. In Kansas an(I Iowa this depeDdence of the mortgage upon the debt is carried so far that where they have both beeni outlawed andi the latter is revived, the former is revived also. Schmucker Nr. Sibert, i8 Kan. 104; CGinton County v. C'ox, 37 Ia. 570. Singularly enough this extreme view is not confined to "lien " states. Sch/ifrste/n v. A//ison, I23 Ill. 662.

In the miiajority of jurisdictions, however, the exact logic of the- situation is not completely recognized. The nmortgagee is allowed to foreclose whether the debt is barred or not -a result theoretically wrong, but obvi- ously just. Ohio has adopted a peculiar middle ground. T hough the law there is that after default the mortgagee has, as between himself and the mortgagor, the legal title, and though he can foreclose after the debt is barred, still if the statutory period has run against the mortgage as a spe- cialty he cannot foreclose. Kerr v. Lydae?ker, 51 Oh. St. 240. T his rule is rendered the more remarkable by a recent holding that- the mortgagee may bring ejectment even after the debt is barred aind his right to foreclose is also gonie. Bradfieldv. Hale, 65 N. E. Rep. Ioo8. This position seems somewhat inconsistent. If the plaintiff is entitled to maintain ejectment -it means that he has the right to possession, and as by the case cited above he has the legal title it seems that he should acquire the whole estate free and clear. But so long as foreclosure is denied the land must always remain - as the court acknowledges - subject to redemption, an unfortu- nate result of a compromise doctrine. It seems that in "title" states Dothing btit twenty years adverse possession by the mortgagor should bar the mortgagee's riglht to eject or to foreclose. In " lien " states the wiser couirse, and one which a majority of the couirts have adopted, is to admit frankly that the strict theory fails, and to accomplislh justice by granting the mortgagee a more than merely " incidental " right against the land.

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