No. 16. There is no range or township numbered 11 in Osage county. The court below rejected the copy, and excluded it as evidence. We think the court erred in this ruling. Without the township and range, the remainder of the description was sufficient to identify the location of the mortgaged property. In Ely v. Carnley, 19 N. Y. 496, the original mortgage was for $546.19, and the copy stated the amount of indebtedness secured by it to be $646.19. It was held bad, because creditors of the mortgagor might be misled concerning the true amount secured by the mortgage. In such case third persons might be prejudiced. The use of the words "true copy" in the statute relative to the recording of chattel mortgages does not require that a literal and verbatim copy of the instrument must be filed, but a copy substantially true, so that creditors of the mortgagor or subsequent purchasers in good faith may not be misled to their detriment. We regard the substitution of the figures "11" for "16" in the copy in question here as a mere clerical error, which, however it occurred, ought not to destroy the lien of the mortgage. The changed figures in the copy did not relate to a material matter. Gillespie v. Brown, 16 Neb. 457, 20 N. W. 632.

The jury, in answer to a particular question of fact, found that the agister's lien of the plaintiff below was created by a contract between him and Vail, the mortgagor. There was some testimony in the case, however, which tended to show a statutory lien. It was held in Case v. Allen, 21 Kan. 217, 30 Am. Rep. 425, that the lien given by section 3931, Gen. St. 1901, had priority over an existing chattel mortgage on the stock fed by an agister. The court was careful, however, to confine this superior right of the agister to a lien derived from a compliance with the terms of the statute, and not to one dependent on contract between the mortgagor and the person caring for and feeding the stock. See Corning v. Ashley, 51 Hun, 483, 4 N. Y. Supp. 255.

The denial of the right of plaintiffs in error to introduce their mortgage in evidence deprived them of any defense against the lien of the plaintiff below, whether it was created by contract or existed by virtue of the statute. The mortgage being admitted, the plaintiff below must recover, if at all, on the rights given him by law.

The judgment of the court below will be reversed, and a new trial ordered. All the Justices concurring.

(65 Kan. 778)

KELSO v. NORTON et al. (Supreme Court of Kansas. Dec. 6, 1902.)

FORECLOSURE OF MORTGAGE-POSSESSION OF

PREMISES-EJECTMENT-REDEMPTION.

1. It is the legal right of a mortgagor to retain possession of the mortgaged premises until a valid decree foreclosing his equity of re

demption is entered, a valid sale made, and deed issued thereunder; but this legal right may be waived or surrendered by consent or agreement of parties, either express or implied. Thus, when a mortgagor surrenders possession of the premises to a purchaser at a void foreclosure sale, who enters under the rights which he supposed he acquired at the sale, believing himself to be the owner of the premises, the mortgagor will be deemed to have waived his legal right to retain possession. and to have assented to the possession thus taken, and the purchaser will thenceforth be deemed to be "a mortgagee in possession."

2. An action for the recovery of real property, in the nature of ejectment, by the heirs at law of a deceased mortgagor, will not lie against a mortgagee in possession, the mortgage debt remaining unpaid, although at the time of the commencement of such action a foreclosure of the mortgage would be barred by the statute of limitations. And in such case a finding that defendant is "a mortgagee in possession," aud the mortgage debt unpaid, will defeat a recovResort must be had in such case to an action to redeem the premises from the mortgage debt.

ery.

(Syllabus by the Court.)

In banc. Error from district court, Chase county; W. A. Randolph, Judge.

Action by Minnie A. Norton against M. B. Kelso and another. From the judgment rendered defendant Kelso brings error. Reversed.

This is an action of ejectment, tried by the court below without the intervention of a jury. Separate findings of fact and conclusions of law therefrom were made by the court. These findings sufficiently disclose the nature of, and the facts involved in, the case, and the only questions of law we are called upon to determine arise upon the findings. They are as follows:

"(1) On and prior to July 16, 1887, M. B. Kelso was the owner of the land in controversy, to wit, section 14 in township 21 of range 9 in Chase county, Kansas, and on that day conveyed the same to H. E. Norton by warranty deed for $3,200. Norton paid cash down $1,100, and he and his wife, Helen R. Norton, executed and delivered to Kelso their two promissory notes, one for $1,100, due in one year, and the other for $1,000, due in two years from date, as the unpaid portion of the purchase price of said land. The said notes drew eight per cent. interest. At the same time, and to secure the payment of said notes, said Norton and wife executed, acknowledged, and delivered to said Kelso a mortgage on said land for $2,100, which mortgage was duly recorded October 6, 1887. (2) Neither of the Nortons, nor any one for them, ever made any payment on either of said notes, nor did they ever pay any of the taxes levied on the said land. (3) Said Norton at once took possession of the said land under the said deed. At the date of said deed, and for a long time prior thereto, and up to the time of his death, said Norton. grantee, and wife, were continuously in and residents of the city of Emporia, Kan. That

2. See Mortgages, vol. 35, Cent. Dig. §§ 480, 484.

said M. B. Kelso since July 16, 1887, has been continuously absent from, and a nonresident of, the state of Kansas. (4) After the maturity of both said notes, to wit, on September 13, 1889, said Kelso, the mortgagee, filed his petition in this court against said H. E. Norton and Helen R. Norton to foreclose said mortgage. A paper purporting to be a summons in said foreclosure suit, drawn in due form, and signed by the clerk of said court, but upon which no seal of court was ever impressed, was on September 14, 1889, personally served on both said mortgagors by the sheriff of Lyon county, Kansas. Neither of said defendants in said foreclosure proceedings were ever otherwise served with process, nor did either of them ever in any manner appear in said action. (5) A formal decree of foreclosure and judgment was entered in said action December 30, 1889, for $2,513, to bear interest at eight per cent. per annum, and after a formal advertisement the sheriff of said county formally sold said property to the plaintiff, M. B. Kelso, for $1,493.36, on April 14, 1890. On April 24, 1890, said assumed purchaser paid the costs of suit, and also paid the taxes then due on said land, amounting to $174.34, covering the years 1887, 1888, 1889. On May 7, 1890, such sale was formally confirmed by the court, and a deed ordered. A paper in dae form, and purporting to be a sheriff's deed conveying said land to Kelso, was executed and acknowledged by said sheriff and delivered to said Kelso on June 7, 1890, and duly recorded June 28, 1890. (6) That on July 9. 1892, said H. E. Norton died in said city of Emporia, intestate, and left surviving him his widow, Helen R. Norton, and their two children, named in the title to this cause. That on May 8, 1893, the said Helen R. Norton died intestate in the said city of Emporia. That no letters of administration on the estate of H. E. Norton nor on the estate of Helen R. Norton were ever taken out. That the said plaintiff Minnie A. Norton and the said defendant Harry P. Norton are children of the marriage of H. E. Norton to Helen R. Norton, and are their sole surviving heirs. That no guardian has ever been appointed for either said Minnie A. Norton or Harry P. Norton. That said plaintiff Minnie A. Norton arrived at the age of eighteen years on the 21st day of February, 1899, and that said Harry P. Norton arrived at the age of twenty-one years October 25, 1895. That said Minnie A. Norton and Harry P. Norton have both been residents of and continuously in the city of Emporia ever since July 9, 1892. (7) That said M. B. Kelso, believing himself to be the owner of said land by virtue of the said sheriff's deed, took possession of said land, by tenant, and retained such possession, and still retains such possession. That about March 1st of each of the following years he received as rents and profits from said land the following sums for the following years [and in the 70 P.-57

aggregate, with interest, $1,380.40]. (8) Said Kelso, mortgagee, paid taxes on said land, in addition to the payment noted in number 5 hereof, the following sums for the following years [aggregating, with interest, $1,157.10]. (9) This suit was begun October 26, 1899.

"Conclusions of Law. (1) Everything connected with the foreclosure proceedings, except the filing of a proper petition to foreclose the mortgage, was absolutely void. The summons, for want of a seal, was a nullity. There was, in law, no foreclosure of the mortgage. The notes and mortgage never merged in any judgment; hence the relation of mortgagor and mortgagee existed at least until the statute of limitations had run on notes and mortgage,-July 19, 1894. (2) Up to and including the taxes of 1893, the mortgagee had a right to pay the taxes, and did pay $349.90, which should draw twelve per cent. interest, and amounts at this date to $777.69. The payments of taxes for the years 1894 to 1900, both inclusive, amount to $309.09, and the interest thereon at six per cent. to $72.32, or a total of taxes and interest of $1,157.10. The total rents and interest exceed the taxes and interest by $223.30. As the taxes and rents have, by operation of law, become a sort of mutual open account, I do not think any statute of limitations had run, except on the mortgage debt. (3) Under the circumstances of this case, I do not think Kelso can be treated as a trespasser, nor his payments of taxes as voluntary payments. Because the mortgage debt has become barred, it cannot now be considered as even an equitable claim against the land. The plaintiff Minnie A. Norton and defendant Harry P. Norton should recover the land and said sum of $223.30, excess of rents and interest over taxes and interest, and the costs of this action."

Upon the facts as found, and the conclusions of law made, there was judgment for plaintiff and defendant Norton for possession of the premises, for rents and profits in excess of taxes paid, and for costs. Defendant Kelso brings error.

Bishop Crumrine and Gleed, Ware & Gleed, for plaintiff in error. W. A. Randolph, for. defendants in error.

POLLOCK, J. (after stating the facts). Without so deciding, let it be conceded, for the purposes of this case, as found and determined by the trial court, that the original summons was not sealed with the seal of the court, and was therefore absolutely nulland void, and may be so declared in this purely collateral proceeding. And also let it be conceded, as a consequence thereof, no jurisdiction was obtained over the person of the defendants in the foreclosure action, and all subsequent proceedings, including the decree, sale, and sheriff's deed, were likewise void. What, then, are the rights of the par

ties? Can this action be maintained, and can the judgment entered be upheld? It is found by the trial court, after the sale of the premises and the execution and delivery of the sheriff's deed, the purchaser at the sale, Kelso, believing himself to be the owner, took and retains possession of the mortgaged property. Is this finding sufficient, in law, to constitute Kelso a mortgagee în possession?

At common law a mortgagee was entitled to possession, and to recover possession from the mortgagor, upon condition broken. In this state, by force of statute, a mortgage retains but few, if any, of its common-law attributes. It is a mere security contract, incident to the debt. The mortgagor, both before and after default, is entitled to the possession of the premises. The only legal right of the mortgagee is to foreclose the equity of redemption, and obtain a decree of sale in satisfaction of his debt. While such are the legal rights of the mortgagor and mortgagee in this state, it does not follow that these legal rights may not be changed or waived by agreement, express or implied. If the mortgagor consents to the mortgagee taking possession of the premises for the better security of his debt, and the mortgagee does take possession, it is clear the possession thus taken will constitute "a mortgagee in possession." In the case at bar the foreclosure proceedings being, as we have heretofore conceded, abortive and void, the mortgagors were under no legal obligation to yield possession to the mortgagee, but might have stood upon their legal rights, and refused to surrender possession until a valid foreclosure decree and sale were obtained, . and a deed and writ of assistance based thereon had issued to place the purchaser in possession. Upon this legal right, however, they did not insist, but acquiesced in the proceedings had and the possession taken thereunder by the purchaser. Hence they and those claiming under them must be held to have waived their legal right to possession of the mortgaged premises, and to have assented to the possession taken by the mortgagee as purchaser at the sale. This is the precise point ruled in Rogers v. Benton, 39 Minn. 39, 38 N. W. 765, 12 Am. St. Rep. 613. It is there held: "Though an attempted foreclosure be abortive, as such, it may take effect as a transfer of the rights of the mortgagee to the purchaser at the sale, and to those who claim under him by conveyance of the interest in the premises apparently acquired by such purchaser at the foreclosure sale. If the purchaser at such sale, or his assign, go into possession of the mortgaged premises with the assent of the mortgagor, under the rights supposed to have been acquired under the foreclosure sale, he will be deemed a mortgagee in possession." In the opinion it is said: "It follows necessarily from this that a mortgagee, even after condition broken, has no right or remedy ex

It

cept to foreclose his mortgage; that he cannot, merely under his mortgage, either recov er or maintain possession of the mortgaged premises. The only logical rule is that, to constitute a mortgagee in possession,' the mortgagee must be in possession by reason of the agreement or assent of the mortgagor or his assigns that he have the possession under the mortgage and because of it. The right to take possession under his mortgage being taken away, nothing remains but to foreclose, or else make some arrangement for his better security with the owner of the fee. Having no right to take possession under his mortgage, the mortgagee can get none except by the agreement or assent of the one who owns that right. This, of course, need not necessarily be express. may be implied from circumstances. Where the mortgagor expressly abandons possession, his assent that the mortgagee might go into possession under his mortgage might well be implied, especially when he allows him to remain in possession for a considerable length of time without objection. But after all, the assent, express or implied, of the mortgagor, that the mortgagee may take possession under or because of his mortgage, is of the essence of 'a mortgagee in possession.' This assent is conclusively proved in the present case. Benton, by his permanent removal from the state, abandoned all personal occupancy or possession. Conant denianded the possession from Mrs. Benton under his mortgage, or by virtue of rights supposed to have been acquired under its foreclosure. She surrendered possession in pursuance of that demand, knowing, as she herself testifies, that Conant was coming in under the mortgage, and that her husband knew it too; and after this entry the Conants, and those claiming under them, were allowed to remain in possession over ten years without objection or assertion of any right in themselves by the mortgagors or any one claiming under them. The fact that Conant claimed the right to the possession under his foreclosure, and threatened legal proceedings to obtain it, and that Mrs. Benton may at that time have supposed that he had that right, does not alter the legal aspect of the case, or render Mrs. Benton's act any less a voluntary surrender of the possession to Conant as mortgagee. Mrs. Conant and those claiming under her had, therefore, the rights of mortgagees in possession.' Cooke v. Cooper, 18 Or. 142, 22 Pac. 945, 7 L. R. A. 273, 17 Am. St. Rep. 709, it is held: "If, for any cause, in the foreclosure suit, the proceeding is ineffectual to foreclose the mortgage, and the mortgagee purchases at a sale under such void proceedings, and enters into the possession under such sale, his relation to the mortgaged premises is that of a mortgagee in possession." the same effect is Miner v. Beekman, 50 N. Y. 337; and many other cases of that and other states, where by force of statutory pro

In

To

visions the mortgage does not operate as a conveyance, or grant the right to possession, of the mortgaged premises, but is only a security for the payment of the debt, may be cited in support of the position here taken. It therefore must be held that Kelso, as mortgagee and purchaser at the invalid foreclosure sale, is entitled to receive whatever protection the law throws around a mortgagee in possession.

What are such rights? Will an action in the nature of ejectment by the heirs of the mortgagor lie to dispossess him of the property until his mortgage debt is paid? Or will the heirs of the mortgagor seeking to reclaim the property be required to resort to an action to redeeem the property from the mortgage debt, in which action the amount of the debt and all the equities of the parties may be fully investigated, determined, and decreed? It is contended by counsel for plaintiff in error that ejectment will not lie, but that plaintiff, as heir at law, must resort to an action to redeem. Is this contention sound? Upon this proposition there would seem to be a lack of uniformity in the authorities. While in many cases, under facts somewhat similar to those found in the case at bar, it seems this court has permitted recovery in an action of ejectment of mortgaged premises against the mortgagee in possession, yet an examination of these cases will show the point here presented neither urged nor determined. Richards V. Thompson, 43 Kan. 209, 23 Pac. 106; Le Comte v. Pennock, 61 Kan. 330, 59 Pac. 641; Seeley v. Johnson, 61 Kan. 337, 59 Pac. 631; Kager v. Vickery, 61 Kan. 342, 59 Pac. 628, 49 L. R. A. 153, 78 Am. St. Rep. 318. Hence the decisions therein are not conclusive of the point presented. It has always been the rule of this court that a defendant in ejectment, even under a general denial, may interpose any defense which he may have, either in its nature legal or equitable, tending to rebut the right of plaintiff to the possession of the premises, or tending to establish the right of defendant to possession. Hall's Heirs v. Dodge, 18 Kan. 277; Wicks v. Smith, Id. 508; Clayton v. School Dist., 20 Kan. 256; Armstrong v. Brownfield, 32 Kan. 116, 4 Pac. 185; Chandler v. Neil, 46 Kan. 67, 26 Pac. 470. This rule, however, does not obtain in the federal courts and in those states where the distinction between actions at law and suits in equity is preserved. Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; Hooper v. Scheimer, 23 How. 235, 16 L. Ed. 452; Smith v. McCann, 24 How. 398, 16 L. Ed. 714; Foster v. Mora, 98 U. S. 425, 25 L. Ed. 191; Iron Co. v. Thoney, 89 Mich. 226, 50 N. W. 845; Paldi v. Paldi, 95 Mich. 410, 54 N. W. 903; Moran v. Moran, 106 Mich. S, 63 N. W. 989, 58 Am. St. Rep. 462. Hence in those jurisdictions the equitable right to withhold possession peaceably obtained until payment of the mortgage debt cannot be inLerposed as a defense in the ejectment action;

such defense being not a legal, but an equitable, defense. Humphrey v. Hurd, 29 Mich. 44; Newton v. McKay, 30 Mich. 380. In this state all distinctions between actions at law and suits in equity are abolished by section 10 of the Code. Hence such equitable defense is, under our practice, admitted.

It being shown by the findings made from the evidence that defendant Kelso is "a mortgagee in possession," can the plaintiff and her defendant brother recover possession of the premises in ejectment without payment of the mortgage debt? It is conceded that the mortgage debt has not been paid. It is admitted, at common law, where the mortgage operates as a conveyance of the title to the property, defeasible upon condition of payment of the mortgage debt, a mortgagee obtaining peaceable possession under his title thus conveyed by the mortgage cannot be ejected, and only a suit by the mortgagor, his heirs, or those holding under him, subject to the mortgage, will lie. Such is undoubtedly the law. But it is insisted by counsel for defendants in error that such is not the rule in those states where a mortgage does not operate as a conveyance of the property, but is a mere incident to the debt secured. This is the legal effect of a mortgage in this state and most states of the Union. The question arising for our determination, therefore, is, what is the true rule in those jurisdictions where the distinction between actions at law and suits in equity is abolished, and by statute the mortgage conveys no title, but is a mere incident to the debt? A decision coming close to a determination of this question was made in this court in Cross v. Knox, 32 Kan. 725, 5 Pac. 32, in which it is said: "The relation of the defendant to the tract of about twenty-two acres of land to which the plaintiff holds the equity of redemption is that of a mortgagee in possession, and he cannot be dispossessed by an action at law, and the only means for lawfully obtaining the possession the plaintiff has is by a redemption of the land from the lien of the mortgage. She has the right to bring suit in equity to redeem, and this suit was properly brought for that purpose." 3 Pom. Eq. Jur. §§ 1189, 1190. Mr. Jones, in his work on Mortgages (4th Ed., § 674), says: "A mortgagor cannot maintain ejectment against the mortgagee in possession so long as there is any question whether the mortgage debt has been paid in full, or there remains a question of account to be settled between the parties. He must resort to a bill to redeem. * Even in states where a mortgagee has no right to take possession until foreclosure is absolute, if the mortgagor voluntarily puts the mortgagee in possession his possession is rightful, and ejectment cannot be brought against him unless some action is previously taken which will terminate his right and render his continuance in occupancy wrongful." Again, at section 702, the same author

says: "It has already been noticed that in several states the mortgagee's right, before foreclosure, to maintain ejectment against the mortgagor, or to recover possession in any way, has been taken away by statute.

* * But even under such statutes it is generally held that a mortgagee, who has gone into peaceable possession of the premises after a default, cannot be ejected by the mortgagor while the mortgage remains unsatisfied." In the case of Cooke v. Cooper, supra, it is held: "Under section 326, Hill's Ann. Laws Or., a mortgagee is precluded from recovering possession of the mortgaged premises after forfeiture by action; but, if he can obtain possession of such premises in any lawful or peaceable mode (that is, without force), he may retain possession of such premises, as against the mortgagor or any person claiming under him subsequent to the mortgage, until his mortgage debt is paid." In the case of Spect v. Spect, 88 Cal. 437, 26 Pac. 203, 13 L. R. A. 137, 22 Am. St. Rep. 314, it is held: "A mortgagor who has placed his mortgagee in possession of the mortgaged premises cannot maintain ejectment against him while the debt for which the mortgage was given remains unsatisfied, even though an action by the mortgagee for the recovery of the debt is barred by the statute of limitations." In the opinion it is said: "Whenever a mortgagor seeks a remedy against his mortgagee which appears to the court to be inequitable, whether it be to cancel the mortgage as a cloud upon his title, or to enjoin a sale under the power given by the security, or to recover from the mortgagee the possession of the mortgaged premises, the court will deny him the relief he seeks, except upon the condition that he shall do that which is consonant with equity. In accordance with these principles, it is a settled rule that a mortgagor cannot maintain ejectment against his mortgagee until the debt is paid. Phyfe v. Riley, 15 Wend. 248, 30 Am. Dec. 55; Hubbell v. Moulson, 53 N. Y. 225, 13 Am. Rep. 519; Fee v. Swingly, 6 Mont. 596, 13 Pac. 375; Roberts v. Sutherlin, 4 Or. 220; Cooke v. Cooper, 18 Or. 142, 22 Pac. 945, 7 L. R. A. 273, 17 Am. St. Rep. 709; Frink v. Le Roy, 49 Cal. 314; Tallman v. Ely, 6 Wis. 244; Brinkman v. Jones, 44 Wis. 512; Sahler v. Signer, 44 Barb. 614; Madison Ave. Baptist Church v. Oliver St. Church, 73 N. Y. 82; Wright v. Wright, 7 N. J. Law, 175, 11 Am. Dec. 546; Wells v. Van Dyke, 109 Pa. 335; Duke v. Reed, 64 Tex. 705; Jones, Mortg. § 715. The debt is not satisfied or paid by mere lapse of time.

The statute of limitations is a bar to the remedy only, and does not extinguish or even impair the obligation of the debtor. It is available in judicial proceedings only as a defense, and can never be asserted as a cause of action in his behalf, or for conferring upon him a right of action. It is to be used as a shield, and not as a sword." In the case of Bryan v. Brasius (Ariz.) 31 Pac. 519,

Gooding, C. J., in rendering the opinion, says: "But it is claimed by appellant that the debt secured by the mortgage was barred by the statute of limitations at the commencement of this action, and therefore need not be paid. I do not think a court of equity would ever allow the statute to have that effect. It would be so inequitable and shocking to all sense of right that a court exercising equitable powers, as this court does, and recognizing equitable defenses, in an action of ejectment, would never disturb the possession of a mortgagee in peaceable and quiet enjoyment under legal proceedings, valid or invalid, until the mortgage debt was paid and all other requirements of equity fully met." The above cases arose in states in which the mortgage was of similar legal effect as in our own. Of like import, see Newell, Ej. 11; 3 Pom. Eq. Jur. § 1189; Hildreth v. James, 109 Cal. 299, 41 Pac. 1038; Van Duyne v. Thayre, 14 Wend. 234; Phyfe v. Riley, 15 Wend. 248; Miner v. Beekman, 50 N. Y. 337; Fee v. Swingly, 6 Mont. 596, 13 Pac. 375; Johnson v. Sandhoff, 30 Minn. 197, 14 N. W. 889; Stark v. Brown, 12 Wis. 572, 78 Am. Dec. 762; Wright v. Wright, 2 Halst. 175, 11 Am. Dec. 546; Duke v. Reed, 64 Tex. 705. In no jurisdiction where equitable defenses may be interposed to an action in the nature of ejectment for the recovery of real property do we find a different holding. Whether the mortgage there operates, as at common law, to convey a defeasible title, or as a mere security contract incident to the debt, does not change the rule. In neither case will the mortgagor, or one claiming under him by conveyance subsequent to the mortgage or by operation of law, be permitted to maintain ejectment against one shown to be a mortgagee in possession of the premises, whether at the time the action is brought to recover possession the statute of limitations would or would not bar an action by the mortgagee to foreclose his mortgage. Not only is this the law in other jurisdictions having similar statutory provisions with relation to the legal effect of mortgages and the defenses which may be interposed in actions of ejectment, but it so accords with that which is just, right, and equitable between the parties in this and all other cases where some technical defect in legal proceedings is relied upon to obtain a nullification of such proceedings, and the acts and acquiescence of the parties therein for many years, that the rule commends itself to our judgment as sound and wholesome.

We therefore hold, upon the findings made, plaintiff in error to be "a mortgagee in possession," entitled to retain such possession until the mortgage debt is paid or adjusted. This action of ejectment cannot be maintained against him. Whether, in the light of the findings made, the heirs, if so advised, may maintain their action to redeem the property from the mortgage debt, is not before