The demurrer filed by the plaintiff disputes the legality of the defence set forth in the second plea, in its limitation of time for recovery on the bond. This limitation is based on section 2 of the act of the legislature passed March 23d, 1881, {Pamph. L.,p. 184,)entitled “An act to amend an act entitled ‘An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder/” approved March 12 th, 1880. Pamph. L., p. 255. This second section enacts “ that in all cases where a bond and mortgage has or may hereafter be given for the same debt, all. proceedings to collect said debt shall be, first, to foreclose the mortgage, and if at the sale of the mortgaged premises under said foreclosure proceedings the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in that case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from, the date of the sale of said mortgaged premises, and judgment shall be-rendered and execution issue only for the balance of debts and costs of suit.” The change made in the former law by this-amended section was mainly the introduction .of the limitation of six months for action on the bond for deficiency. The purpose is obvious, when we read the third section of the act, which gives the recovery on the bond for the balance of the debt, the effect of opening the foreclosure and sale of the mortgaged premises, and right of redemption, to the owner of the property at the time of the foreclosure and sale. As the law stood under the act of 1880 the holder of the bond could wait after the sale of the mortgaged premises until the sixteen years’ limitation of action was about to expire, and on recovery for balance due on the bond, the foreclosure sale would be opened for redemption, leaving the title for a long time unsettled. To obviate this delay, and shorten the time for redemption, the limitation of six months was introduced by amending the act of 1880, as has been stated. What effect this amendment has upon suits on bonds executed prior to the act of
In these cases, it is now said, the court has passed on the-effect of the 1-aw as it attempted to control the obligee and mortgagee’s right to prefer either his bond or mortgage by suit in enforcing his remedy for the debt thereby secured, but it does not directly say, because it was not called for by the-facts of these cases, that when this preference is made by first foreclosing the mortgage the holder of the bond is not subject to the limitation to bring his action on it within six months from the date of the sale of the mortgaged premises. It is-claimed by this plea, and the argument for its legality, that the limitation to the suit on the bond after foreclosure is-separable from the faulty parts of the statute. This supposed-distinction is based on the rule that where one part of a statute is unconstitutional because it is not within the scope of legislative power to pass it, another part of the same act may not be obnoxious to the same objection but may be enforced as if made in a different statute. But the principle thus invoked is subject to the limitation that the enactments thus separated as constitutional and unconstitutional must be wholly independent of each other. If they are so connected and dependent as to warrant the belief that the legislature intended them as a whole, they must stand or fall together. Warren.
The entire scheme and purpose of the act of 1881 is to control the remedies given by law to the obligee and mortgagee, before the enactment of this new law, for the benefit of the obligor and mortgagor in every feature of the statute. This clearly appears in the third section, where the recovery on the bond, after the foreclosure of the mortgage, is made to operate as an opening of the foreclosure sale, and the time given for the redemption of the mortgaged land, to the person against whom the judgment has been recovered. It- is intended to make the secondary security which binds only the mortgaged land the primary remedy, instead of the bond which reaches all the personal and real property of the obligor. It says in effect to the mortgagee, Make your money out of your mortgage ; if you do not, we will put hindrances on the collection •of your bond, first, by requiring you to bring your suit thereon in six months after the foreclosure sale, under penalty of losing this security; and if you bring suit on the bond the mortgagor may redeem his land to keep his other property from seizure and sale by payment of the debt he owes at the end of all legal proceedings. The time given for suit on the bond and redemption of the land are mere qualifications and incidents to the main purpose of the act, and so connected as to ■be inseparable. The six months’ limitation to the action on the bond has no significance unless coupled with the previous sale of the mortgaged lands, and the subsequent right of redemption.
The plea which sets up the six months’ limitation under ■this statute to defeat the recovery of the deficiency on the sale of the mortgaged premises, by action on the bond given prior ito the act, is bad, and the demurrer will be sustained.