can be brought upon the principal obligation. This is all that is said in the opinion as to the effect of this section, and it is apparently assumed from this that the lien of the pledge being extinguished, the pledgee can no longer retain possession of the pledged property, even though the debt for which it was given as security has not been paid. It is in attributing this effect to the extinguishment of the lien that we think the decision is erroneous.

Section 2911, adopted as a part of the original code in 1872, was designed simply to declare the rule previously laid down by the decisions of this court, to the effect that when an action upon the indebtedness is barred by the statute of limitations, action on any contract given by way of security for the debt is also barred. This rule was contrary to the rule existing at common law and in many of our sister states, under which an action might be maintained to foreclose a mortgage not barred by the statute, although the debt for which it was given as security was barred. It was, however, thoroughly established by a line of decisions rendered before the enactment of the codes, commencing with Lord v. Morris, 18 Cal. 482, in which the matter was exhaustively discussed in an opinion delivered by Chief Justice Field. It clearly appears from the note of the code commissioners to the original section that this was the reason for the elimination of the word "not" from the section of the New York code, when such section was otherwise taken as a part of our own Civil Code, the New York section reading, "a lien is not extinguished," etc., which was in accord with the rule theretofore established in that 423 state. The effect of the California rule is undoubtedly to prevent any affirmative action on the part of the mortgagee or pledgee to enforce his lien, after the debt is barred by the statute of limitations. In such a case, the lien no longer exists. It has been "extinguished." But the section was not designed to prevent the application of the equitable principle which has always been recognized as warranting courts in refusing to aid the debtor in the recovery of possession of his property from the mortgagee in possession or pledgee, or in removing any cloud upon his title created by an instrument in writing given as security, without paying his debt. This is thoroughly established in this state by the decisions in regard to mortgages, to which the section is equally applicable, and between which and pledges of personal property there is no distinction material to the question under discussion. Although the lien of a mortgage is "extinguished" by the barring of the debt by the statute

of limitations, the mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee, or maintain ejectment against his mortgagee in possession. This is firmly settled in this state by decisions rendered since the adoption of the code sections: Booth v. Hoskins, 75 Cal. 271, 17 Pac. 225; De Cazara v. Orena, 80 Cal. 132, 22 Pac. 74; Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 203, 13 L. R. A. 137; Brandt v. Thompson, 91 Cal. 458, 27 Pac. 763; Hooper v. Young, 140 Cal. 274, 98 Am. St. Rep. 56, 74 Pac. 140; Burns v. Hiatt, 149 Cal. 617, 117 Am. St. Rep. 157, 87 Pac. 196. See, also, Grant v. Burr, 54 Cal. 298. This is in accord with the practically universal rule. A debt is not satisfied or extinguished by mere lapse of time. "The rights which grow out of the relations existing between mortgagor and mortgagee, as well as the remedies for the enforcement and protection of those rights, are of equitable origin, and are to be determined by the principles of equity, whether the right be asserted or the remedy sought in an action at law or in equity. . . . . Courts look to the substantial rights of the parties for the purpose of determining the remedy to which they are entitled, irrespective of the form of the complaint under which the remedy is sought. Whenever a mortgagor seeks a remedy against his mortgagee, which appears to the court to be inequitable, . . . the court will deny him the relief he 424 seeks, except upon the condition that he shall do that which is consonant with equity. . . . . 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": Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 203, 13 L. R. A. 137. It is impossible to reconcile these decisions as to the rights of a mortgagee whose debt has not been paid with the decision. under discussion, and no attempt has ever been made to do so. Section 2911 applies alike to mortgages and pledges. The pledgee is in precisely the position occupied by the mortgagee in possession. Property has been placed in his possession by the debtor as security for the discharge of his obligation. It would be as inequitable to assist him in recovering the possession thereof without paying his debt, as to assist a mortgagor in so recovering his property. It is the general rule enunciated by courts of last resort that a pledgor cannot recover possession of the pledged property without paying his debt, although the debt be barred by the statute of

....

limitations, and this rule is based on the equitable doctrine already stated. This court has announced the same rule in regard to a pledge, although perhaps never in a case where it was necessary to the decision: See Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 203, 13 L. R. A. 137; Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786; Commercial Sav. Bank v. Hornberger, 140 Cal. 16, 73 Pac. 625. We have no doubt that it is the correct rule in the absence of express provision to the contrary, and that section 2911 of the Civil Code should not be construed as providing to the contrary. To hold otherwise not only implies a legislative intent not shown by the language of the section, but deprives our nunerous decisions as to the rights of a mortgagee of real property of the foundation upon which they are based. If Mutual Life Ins. Co. v. Pacific Fruit Co., 142 Cal. 477, 76 Pac. 67, is to be followed, either the decisions as to a mortgagee in possession must be overruled, or, accepting the doctrine of those cases as established as a rule of property which should not now be changed, we shall have two diametrically opposed constructions of section 2911, one for the mortgagee in possession and the other for the pledgee. 425 We cannot see that property rights can by any possibility be injuriously affected by our now declaring what we are satisfied is the true rule in this matter, and declining to follow. the decision under discussion.

The case of Conway v. Supreme Council, 131 Cal. 437, 63 Pac. 727, is cited in the opinion in Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67, as sustaining the views therein enunciated. The opinion in the Conway case fails to show that the claimants had received or were in possession of the policy, or that they had anything more than a mere equitable lien. The decision goes no further than to hold that in such a case it was essential to the claimant's rights to obtain possession from the beneficiaries of proceeds of the policy, that the lien had not been extinguished by the barring of the principal indebtedness.

In this case, as in Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67, the position of the beneficiary is clearly that of the pledgor or his successor seeking to recover possession of the pledged property from the pledgee without paying the debt for which it was pledged. The money paid into court as proceeds of the policy has merely taken the place of the policy held in possession by the plaintiff, and for all the purposes of this action should be deemed to be in the possession of the plaintiff.

It follows from what we have said that the issue as to the debt being barred at the time of the death of Henry was an immaterial issue in this action, and the failure of the court to find on an immaterial issue would not warrant the granting of a new trial. It also follows that the evidence without conflict showed that plaintiff's "cause of action herein" is not barred.

There was no conflict in the evidence upon the proposition that Henry assigned and delivered the policy to plaintiff in pledge as security for the debt evidenced by the note. The right of the plaintiff to collect from the insurance company the amount of the policy when it fell due, followed as a matter of law: Civ. Code, sec. 3006. A new trial could not, therefore, be granted on the ground of insufficiency of evidence to support the finding as to these matters. There is no other point made in support of the order granting a new trial. It is evident that the new trial was granted by the lower 426 court solely because of the decision of this court in Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67. The order granting a new trial is reversed.

Shaw, J., and Sloss, J., concurred.

BEATTY, C. J. I concur in the judgment, and also in the opinion, except that portion thereof referring to the case of Conway v. Supreme Council, 131 Cal. 437, 63 Pac. 727, which case was again before this court on a second appeal: 137 Cal. 384, 70 Pac. 223. I think the effect of the opinion in this case is to overrule-not only the decision of this court in the Mutual etc. Co. v. Pacific etc. Co., 142 Cal. 477, 76 Pac. 67, but also the Conway cases.

MCFARLAND, J., HENSHAW, J., and LORIGAN, J. We dissent. In our opinion the law on the point at issue was correctly declared in the case of Mutual Life Ins. Co. v. Pacific Fruit Co., 142 Cal. 477, 76 Pac. 67, and cases cited in the opinion filed in said case.

Rehearing denied.

The Effect of the Bar of the Statute of Limitations against a debt secured by pledge is discussed in the note to Menzel v. Hinton, 95 Am. St. Rep. 662. Where a note is barred by the statute of limitations, no action can be maintained on the mortgage securing it: Bruner v. Martin, 76 Kan. 862, 123 Am. St. Rep. 172.

Am. St. Rep., Vol. 125-6

MCKEE v. DODD.

[152 Cal. 637, 93 Pac. 854.]

LIMITATIONS OF ACTIONS upon Note Executed Without the State. If a note executed in another state is by its terms payable therein, and the maker is a nonresident of this state when the cause of action accrues, the statute commences to run in his favor only when he comes within the state, and if afterward he leaves, the time during which he is absent is not a part of the time within which suit must be commenced. (p. 83.)

LIMITATIONS OF ACTIONS-Place Where Cause of Action is Deemed to have Arisen.-lf a note is made and is payable in a state where the maker resides, and he subsequently removes to another state or country, a cause of action does not arise in the state or country where the default occurs, nor successively in each state or country into which he goes, but does arise in the state wherein the note was made and is payable. (pp. 85, 86.)

LIMITATIONS OF ACTION-Statute Respecting Cause of Action in Another State or Country, Construction of.-A statute relating to a cause of action which has arisen in another state or a foreign country, and providing that an action cannot be maintained thereon if it is barred by the laws of such state or country, does not bar an action in this state on a promissory note which might have been barred according to the laws of some foreign country wherein the debtor may have been or resided after its execution, if it is not barred by the laws of the state wherein the note was executed and was by its terms payable. (pp. 85, 86.)

ESTATES OF DECEDENTS- Ancillary AdministrationDebts Due Citizens of Foreign Countries, Whether can be Recognized. If ancillary administration is had in this state of the estate of a debtor dying in another state or country, the claim of a citizen of a foreign state can be recognized, allowed and enforced, there being no provision in the statute declaring otherwise. (p. 86.)

W. M. Cannon and A. P. Black, for the appellant.

Mullany, Grant & Cushing, for the respondent.

638 HENSHAW, J. This is an action on a claim against the estate of James Dodd, deceased, based upon three promissory notes which were executed in 1891 in New York to plaintiff and payable in that state, plaintiff and the deceased at that time both being residents thereof. All of these notes by their terms became due and payable before the expiration. of the year 1891. Shortly after their execution Dodd left New York and never returned. He was in Europe until May, 1892, and thence came to California, arriving here in June, 1892. He kept a liquor saloon in San Francisco until April, 1893, when he sold out his business and went to Honolulu, H. I. He entered business in Honolulu, resided, and had his domicile there until his death in January, 1900. During the time of his residence in Honolulu he made visits.