By the Court

I think our statute limiting the time for the commencement of actions, applies as well to equitable as to legal proceedings. The first section of the chapter on limitations provides that “ the distinctions between forms of actions at law heretofore existing are abolished, and there shall be in this Territory hereafter but one form .of action at law? Section 3, of the same chapter, provides that *470“ actions can only be commenced within the periods prescribed in this chapter.” It will be observed that the application of the first section is limited to “ actions at law” as distinguished from equitable actions, while the language of the third section applies to actions generally. Subdivision 6 of section 6 of the same chapter, limiting the time of commencing “ an action for relief on ground of fraud,” and section 12, limiting the time of commencing “ an action for relief not being before (not hereinbefore) provided for,” seem clearly to refer to equitable proceedings. These sections are taken verbatim from the original report of the commissioners of practice and pleadings in New York, (see Report, Sec. 574, subd. 6, and Sec. 580,) and they were taken substantially by said commissioners from the revised statutes of said State, in which they expressly referred to proceedings in equity. This had been the law of New York since 1830 — long before the distinction between legal and equitable remedies was abolished. (See 2 N. Y. Rev. Stat. Part 3, Ch. 4, p. 302, and revisor’s notes to said chapter.) The New York revisors, in adopting this section, truly said: “ It is conceived that every reason for the existence of a statute of limitations as to suits at law, applies with greater force to cases in equity.” I think it may be legitimately inferred that our Legislature, in adopting this statute, intended, also, to adopt the construction or meaning given to it in the State from which it was taken, there being no reason for holding that meaning or construction inapplicable to the condition or practice of our State. It has been held in England that equitable proceedings are not within the words of the statute, because the words apply only to particular legal remedies, and so it has also been held in many of the States of the Union. But it cannot be so held under our statute, for, as we have seen, the Legislature did not give to the term “ actions” such limited signification. When they wished to limit its application to legal, as contra-distinguished from equitable, proceedings, they used the expression, “actions at law.” We find, *471too, in the same chapter that prescribes the time within which actions may be commenced, a section prescribing the place of trial of an “ action for the foreclosure of a mortgage of real property,” which is, of course, an equitable proceeding. But whatever view may he taken of this question, the defense set up must be overruled. Subdivision 1, of chapter 6, of this chapter of our statutes above referred to, provides that “ an action upon a contract, or other obligation, express or implied,” shall be commenced within six years after the cause of action accrues, which the defendant’s counsel insists is a bar to this action. This view, which is based on the hypothesis that this is an action upon a contract — the mortgage — does not seem to me tenable, though there are many dicta that seem to support it. In the examination of this case, we need not notice the accidental fact that the mortgage was accompanied by a note, for it is clearly unimportant, so far as the application of the statute of limitations is concerned, whether the mortgagor has, in any way, become personally liable for the sum secured by the mortgage. So, too, I think it is unimportant whether the mortgage contains a power of sale. The. question in this case, fairly presented, is, whether an action or suit to foreclose a mortgage, is an action on a contract, within the meaning of our statute above cited. If it is, it must be for the enforcement of such contract, or for damages for its breach, and we must look to the contract to ascertain the nature of the relief, or the measure of damages to which the plaintiff is entitled. An action to foreclose a mortgage (as the expression is ordinarily, hut inaccurately, used) is manifestly not an action to enforce any stipulation or contract expressed in the- mortgage, or implied from its language. There is no covenant implied in a mortgage for the payment of the sum intended to be secured, nor are the respective rights of mortgagor and mortgagee (the reciprocal rights of redemption and foreclosure) which exist between these parties secured by their contract; such rights would *472equally exist if the parties had expressly stipulated to the contrary. No damages can be awarded to the plaintiff unless where the mortgagor has, in some manner, made himself personally liable for the sum secured. There has been no breach of any contract contained in the mortgage, either express or implied, and, therefore, there is no right of action on suoh contract, either for damages or for a specific performance. The right to apply to the court, either to redeem the premises or foreclose the mortgage, is a right incident to the relation of mortgagor and mortgagee — secured by law and not by contract. A mortgage is, in form, a conveyance, to be void on the performance of certain conditions. It is true that equity looks upon and treats it merely as an incident to the debt secured — as a lien — but this is not by virtue of the agreement of the parties, but in pursuance of those equitable maxims and rules that have come to be acknowledged as the law of the land'. According to -the contract of the parties the plaintiff would be the owner in fee- absolute of the mortgaged premises, but equity secures to' the mortgagor a right of redemption, and to bar and foreclose the defendant of such equitable right, this action is brought.

Nor is it material whether the court orders a strict foreclosure, as in some places is the practice, or a sale of the premises. The direct operation of the judgment is, in either case, to enforce the lien, and incidentally, in both cases, it ordinarily secures the debt; but from this it does not follow that such action is an action for the recovery of the sum secured, for it is only in such cases where the mortgagor has assumed a personal liability that a personal judgment can be rendered against him. From the fact that a mortgage is now held to be a mere lien, or security, for the debt, it does not follow that, because an action for the recovery of the debt is barred, the enforcement of the lien is also barred. The language of the statute does not justify such conclusion, and the decisions of the courts are nearly unanimous against *473it. It is well settled that whether the security for a simple contract debt is a lien on personal or real property, the lien is not impaired in consequence of the debt being barred. Belknap v. Gleason, 11 Conn. 160; Ang. on Lim. Sec. 73, and notes, and cases cited in notes. I think it admits of doubt whether subdivision 1, of section 6, of our statute, above cited, applies at all to equitable proceedings, but even if it does, this case is not within either its letter or spirit, and I think the order appealed from should therefore be reversed, and the cause remanded.

I think this is an action upon a contract, but that it is also an action for relief within the meaning of section 12, page 533, Pub. Stat.j that section 12 controls in cases of this kind, and fixes the period of limitation at ten years under the statute, as it was when this action was brought. This view, of course, leads me to concur in the disposition of the case.