The opinion
McKee, J., specially concurring.
I concur. Where a purchaser of real estate from a mortgagor assumes payment of the mortgage debt, as a part of the consideration of his contract of purchase, there arises out of the transaction, upon the principle of subrogation, a .anee of action for the benefit of the mortgagee, which he may enforce, at any time within the life of his mortgage, by an action at law or in equity against the purchaser. But if, as in the case in hand, the mortgagee sleeps upon his remedial rights against the mortgagor and purchaser, until the? time of the Statute of Limitations has run against the mortgage debt, and the lien of the mortgage has become extinguished, and the purchaser and mortgagor have rescinded their contract, there is no remedial right which can be enforced at law or in equity by the mortgagee against the mortgagor or the purchaser. (Simpson v. Brown, 68 N. Y. 355 ; Durham, v. Bischof, 47 Ind. 211 ; Kelly v. Roberts, 40 N. Y. 432 .)