¶1 (dissenting). Four paragraphs of the mortgage are set forth in full in the opinion of the inajority. They- contain promises to pay which are to :be found in the mortgage, only. If the mortgagor fails to pay taxes, the mortgagee may pay them, and they ishal'l be “repayable by the mortgagor.” This,- surely, is'the equivalent of' an “express promise to,-pay” *17 though the word “promise” is not employed. It is also provided that under certain circumstances the mortgagors shall pay the cost of searching records and the like. Along with these provisions, promissory in nature and upon which action based on the mortgage alone might be brought, there appears the final paragraph to the effect that “the mortgagors consent to a personal judgment for the payment of the debt hereby secured, irrespective of this security.” If, in lieu of those words, the instrument had provided that the mortgagors agree to pay any deficiency after the sale on foreclosure of the mortgaged property there would, I suppose, be no question as to the right of the plaintiff to recover. TTpon such a promise a personal judgment would be rendered. The fact that the mortgagors “consent to a personal judgment” seems to me to be a distinction without a difference. Consent implies an affirmative agreement to the very action of the court which would be taken upon a direct promise to pay. It is at least a covenant to confess judgment, and I construe it to be the substantial equivalent of an express covenant for payment. To hold that an agreement for a personal judgment does not include the duty to pay, which duty is always imposed by a personal judgment, seems to me to rest upon an unduly narrow construction of the words used. No personal judgment could have been rendered against the mortgagors in the State of Washington, where they were not present. The mortgage was foreclosed against the real property. There was a deficiency. “Irrespective of this security” the plaintiff, having secured personal jurisdiction of the mortgagors in Oregon, should, I think, be entitled to a personal judgment for that deficiency based upon the affirmative consent thereto as contained in the mortgage. We cannot by a process of construction excise the *18 provision in question from the mortgage. Yet, if it be not given effect in this case it is difficult to conceive of any probable circumstances under which it would ever be given any effect.
¶2 Although we are authorized in construing the instrument to consider the circumstances under which it was made and the situation of the subject of the instrument and of the parties to it, such an aid to construction seems to me unnecessary in view of the clear language used.
¶3 With due deference to the weighty opinion of the majority, I think that the two judges of the circuit court, who passed upon the question, correctly held that consent to a personal judgment for the payment of the debt irrespective of the security should be deemed to be an express promise to pay within the meaning of the statute O. C. L. A. 68-101.
¶4 I am also persuaded that the claim for deficiency based on that covenant was not barred by the statute of limitations, for the reason that the running of the statute was tolled by payments made by Grinstead, the grantee of the mortgagor, before the statutory period had run. Since the majority entertains a contrary view concerning the first question, and the case is therefore to be reversed upon the ground that there is no express promise to pay, it becomes unnecessary for me to amplify my views on the statute of limitations.
¶5 Being of the opinion that the judgment should be affirmed, I dissent.
¶6 (specially concurring). The mortgage in this case contained the following provision:
“The mortgagors consent to a personal judgment for the payment of the debt hereby secured, irrespective of this security.”
¶7 As an express promise or covenant, this provision is exactly what it purports to be and no more, viz., *16 consent to the entry of a personal judgment against •the mortgagors, “for the payment of the debt”. It is as if they had said, “if suit is brought to foreclose this mortgage, we consent to a personal judgment against us ‘for the payment of the debt hereby secured’ or, “we consent that a personal judgment may be taken against us in respect of this debt”. In order to construe the proviso into a covenant to pay, it is necessary to say that the language used, which does not express a promise to pay the debt, implies one. However, in Oregon, a mortgage cannot be construed so as to imply such a promise. (Section 68-101, O. C. L. A.)
¶8 The majority opinion points out that, at the time when the complaint was filed, the note was barred by the six-year statute of limitations. (Section 1-204, O. C. L. A.; 34 Am. Jur., Limitation of Actions, sections 338, 339 and 353.) By the same statute, the debt itself was barred likewise.
¶9 The right of action in personam upon the debt having been barred by the statute of limitations, it seems clear that there can be no action upon the covenant to permit personal judgment to be entered upon the debt. •The covenant cannot possibly have the effect of galvanizing a dead debt into life. The judgment should be reversed.