which she possessed, did not pass as part of the interests acquired at the judicial sale; but it is equally true that her estate which was covered by the mortgage, and which would be taken from the plaintiff in error, did pass to and vest in him at the judicial sale. It is no longer a plea against the personal liability on the note, but a plea against the enforcement of a mortgage which, but for the justness of the plea, would deprive the purchaser at judicial sale of his property. It therefore is not so much an inquiry as to whether the judicial sale carried with it the right of Mrs. Davis to plead the statute of limitations as it is whether he may not assert it in his own right as a purchaser of part of the mortgaged premises.

We think a summary of the authorities on the subject indicates the general rule that anyone in privity with the lien sought to be enforced against the premises, and anyone who can be said to stand in the place of the person in whose favor the statute runs is entitled to plead it.

As said in Corbey v. Rogers, 152 Ind. 169-171, 52 N. E. 748: "The general rule is that the right to plead the statute of limitations is a personal privilege, but persons standing in the place of the party having the personal privilege, such as grantees, mortgagees, executors, administrators, trustees, heirs, devisces or other persons holding under him may set up such 148 defense." The court then cites in support of the rule numerous cases decided in other jurisdictions.

Had Mrs. Davis retained her share of real estate, it is conceded she could have plead the statute in bar of foreclosure. Why? Because she would be holding under the mortgagor and in privity of estate with him. So does her grantee hold under him, and in this sense the purchaser at judicial sale is her grantee, and stands in her place in the chain of title, and therefore he holds under the mortgagor.

We think it has been well decided in several cases that the holder of a junior mortgage may plead the statutory bar against the enforcement of a senior mortgage: See 19 Am. & Eng. Ency. of Law, 185; Lent v. Shear, 26 Cal. 361-370; Hill v. Hilliard, 103 N. C. 34, 9 S. E. 639. Two sections of the syllabus in the latter case are: "2. A subsequent mortgagee or purchaser of the equity of redemption has the right to avail himself of the statute of limitations as a defense to the first mortgage, and after the rights of the first mortgagee are barred by the statute, no act or acknowledgment on the part of the mortgagor can revive the mortgage as to subsequent mortgagees or

purchasers. 3. A subsequent mortgagee or purchaser of the equity of redemption can avail himself of the protection of the statute of limitations against a prior mortgage, although the mortgagor is a party to the action and refuses to plead the statute." The opinion in that case cites Jones on Mortgages, sec. 1509; Lent v. Shear, 26 Cal. 361; Medley v. Elliott, 62 Ill. 532; Fox v. Blossom, 17 Blatchf. 352, Fed. Cas. No. 5008.

If a junior mortgagee may so defend, so may a subsequent purchaser.

149 In the case at bar, while the death of the mortgagor occurred before the statute had fully run, yet it had run its full course at the date of the order of sale and the sale of the interests of Mrs. Davis in the mortgaged premises. At that time she and the other heirs at law of the mortgagor held but the equity of redemption. The equity of redemption in favor of Mrs. Davis was certainly sold to the plaintiff in error and he acquired it at the judicial sale above referred to. Hence, on the ground that he holds the equity of redemption in one-fifth of the encumbered premises, he is entitled to plead the statutory bar for the protection of his title.

The authorities to support the doctrine of this opinion are very numerous, if not unanimous, as witness Trimble v. Fariss, 78 Ala. 260; McCarthy v. White, 21 Cal. 495, 82 Am. Dec. 754; Lent v. Shear, 26 Cal. 361; Houston v. Workman, 28 Ill. App. 626; Schmucker v. Sibert, 18 Kan. 110, 26 Am. Rep. 765. We quote from the latter case the following: "Again, when the note is barred, the mortgage is also barred, and a grantee of the mortgagor may interpose this defense to an action to foreclose the mortgage whether the mortgagor does or not. He may protect the property conveyed to him by a plea of the statute, as to any lien sought to be charged against it. He cannot interpose the plea beyond the extent of his interest, and therefore only to prevent a foreclosure."

"In Coster v. Brown, 23 Cal. 142, the court decided that ‘a purchaser of an estate subsequent to the mortgage, may intervene and plead the statute,' and further, when the debt to secure which a mortgage is given is barred by the statute of limitations, the mortgage is also barred, and if an action is 150 brought to foreclose it, one who has purchased or acquired a lien on the property subsequent to the mortgage has a right to intervene in the action and plead the statute of limitations": See, also, Ewell v. Daggs, 108 U. S. 143-147, 2 Sup. Ct. Rep. 408, 27 L. ed. 682.

It would seem that reasoning from any view point we may have of the question the answer and cross-petition of plaintiff in error contains a good defense against foreclosure as to his share of the premises, and if true, that he is entitled to have the cloud of the mortgage thereon removed.

The judgments of the lower courts are reversed and the demurrer to the answer and cross-petition overruled, and the cause is remanded to the common pleas court for further proceedings according to law.

Spear, C. J., Davis, Shauck and Crew, JJ., concur.
Summers, J., not sitting.

WHO MAY PLEAD THE STATUTE OF LIMITATIONS.

I. Scope of Note, 743.

II. Nature of the Right to Plead the Statute of Limitations. a. The Right as a Personal Privilege, 743.

b. Right to Waive the Privilege, 744.

c. Estoppel of Right to Plead the Statute, 746.

III. General Rule as to Who may Plead the Statute of Limitations, 747.

IV. Application of the Rule to Various Classes of Persons.

a. As Dependent upon Legal Capacity of Party Invoking the Privilege.

1. Nonresidents, 748.

2. Foreign and Domestic Corporations, 749.

b. As Dependent upon Personal or Official Relations of the Parties.

1. Marital Relations, 749.

2. Fiduciary Relations.

A. In General, 749.

B. As Affecting the Trustee, 750.

C. As Affecting the Cestui Que Trust, 751.

D. As Affecting Strangers to the Trust, 752.

E. Sheriff or Attorney Collecting Moneys, 752.

3. Church Officials or Trustees, 752.

4. Creditors Suing on Behalf of Themselves or Other Creditors, 752.

5. Principals and Sureties, 754.

6. Persons Entitled to Subrogation, 755.

7. Partners and Their Creditors, 755.

8. Garnishees, 756.

9. Receivers and Assignees for Benefit of Creditors, 756.

10. Executors and Administrators, 756.

11. Parties Plaintiff or Defendant.

A. In General, 757.

B. Joint Plaintiffs or Defendants, 757.

12. Discharged Insolvent Debtors, 760.

c. As Dependent upon the Interest or Estate of the Parties

in Property.

1. Owner of Land Entitled to Sue, 760.

2. Joint Tenants and Tenants in Common, 760,

3. Tenants in Tail and Tenants by the Curtesy, 762.
4. Remaindermen and Reversioners, 763.

5. Mortgagors and Mortgagees.

A. In General, 763.

B. Junior Mortgagees, 763.

6. Persons Entitled to Redeem from Mortgage Sales, 764. 7. Holder of Void Tax Title, 764.

8. Persons Entitled to Liens, 765.

9. Persons Entitled to Distribution in Receivership Proceedings, 765.

d. As Dependent upon the Mode of Acquisition of the Interest or Estate in Property.

1. Judgment Creditors and Their Assignees, 765.

2. Assignees or Purchasers in General.

In this note we shall discuss only those cases which adjudicate the right of a person, based on his status, to plead the statute of limitations as distinguished from those cases in which the right of the person to do so is conceded, provided that he brings himself within the terms and conditions of the statute, or, in other words, we shall endeavor to exclude from our consideration those cases involving the question whether the facts and circumstances are such as to make the statute of limitations operative. Hence, we shall exclude from our consideration all cases involving a suspension of the running of the statute of limitations by reason of such disabilities as coverture, infancy, insanity and the like. The right to plead the statute where governmental bodies are parties litigant, having been treated by us in the very recent note to Bannock County v. Bell, 101 Am. St. Rep. 144, we shall not discuss the subject in this note. Nor shall we discuss the general principles, theories or policy of statutes of limitation. For a discussion of the subject from that standpoint, see the monographic notes to Menzel v. Hinton, 95 Am. St. Rep. 656, and Bannock County v. Bell, 101 Am. St. Rep. 144. And for a discussion of the requirements of an acknowledgment or new promise to suspend or remove the bar of the statute, see the monographic note to Warren v. Cleveland, 102 Am. St. Rep. 751.

II. Nature of the Right to Plead the Statute of Limitations. a. The Right as a Personal Privilege.-The right to interpose the statute of limitations in a suit is a privilege which is personal to the person entitled to plead the statute: Cartwright v. Cartwright, 68 Ill. App. 74; Schuberth v. Schillo, 177 Ill. 346, 52 N. E. 319; Dunton v. McCook, 93 Iowa, 258, 61 N. W. 977; Gentry v. Field, 143

Mo. 399, 45 S. W. 286; Trustey v. Lombard (Or.), 78 Pac. 895; Mason v. Taft, 23 R. I. 388, 50 Atl. 648; Welton v. Boggs, 45 W. Va. 620, 72 Am. St. Rep. 833, 32 S. E. 232; McCartney v. Tyrer, 94 Va. 198, 26 N. E. 419; Hanchette v. Blair, 100 Fed. 817; Sanger v. Nightingale, 122 U. S. 176, 7 Sup. Ct. Rep. 1109, 30 L. ed. 1105. Hence the court cannot of its own motion interpose the plea: Smith v. Hutchinson, 78 Va. 683. Nor can the unsecured creditors of a debtor compel the debtor to plead the statute of limitations as a bar to a recovery by other creditors: Anderson v. McNeal, 82 Miss. 542, 34 South. 1; Christie v. Bridgman, 51 N. J. Eq. 331, 25 Atl. 939, 30 Atl. 429. Since the statute of limitations is generally considered as not extinguishing the debt, but merely taking away a remedy for its enforcement (Colton v. Depew, 60 N. J. Eq. 454, 83 Am. St. Rep. 650, 46 Atl. 728; Menzel v. Hinton, 132 N. C. 660, 95 Am. St. Rep. 647, 44 S. E. 385; Relyea v. Tomahawk Paper etc. Co., 102 Wis. 301, 72 Am. St. Rep. 878, 78 N. W. 412), the legislature may make such statutes apply to nonresidents and minors as well as to others: Sweet v. Boston, 186 Mass. 79, 71 N. E. 113. Though the general rule is as has been stated, namely, that the plea is purely a personal privilege, still there are some apparent exceptions to the rule. The rule in this regard was illustrated by Chief Justice Field in the oft-cited case of Lord v. Morris, 18 Cal. 482, in the following language: "But it is said that the plea of the statute is a personal privilege of the party and cannot be set up by a stranger. This, as a general rule, is undoubtedly correct with respect to personal obligations, which concern only the party himself, or with respect to property which the party possesses the power to charge or dispose of. But with respect to property placed by him beyond his control or subjected by him to liens, he has no such personal privilege. He cannot at his pleasure affect the interests of other parties. His grantees or mortgagees, with respect to the property, stand in his shoes, and can set up any defense that he might himself have set up to the action, either to defeat a recovery of the property or its sale': See, also, Grattan v. Wiggins, 23 Cal. 16, to the same effect.

b. Right to Waive the Privilege.-From what has been said in the preceding paragraph it naturally follows that if the rights of others are not concerned as a matter of right, the debtor may waive the defense of the statute of limitations: Bell v. Rice, 50 Neb. 547, 70 N. W. 25; Quick v. Corlies, 39 N. J. L. 11; Clark v. Augustine (N. J. Eq.), 51 Atl. 68; Noyes v. Hall's Estate, 28 Vt. 645. Hence it has been declared that other creditors cannot complain because the debtor has waived the statute of limitations as to claims due him: Brigham v. Fawcett, 42 Mich. 542, 4 N. W. 272. So, also, a debtor not being obliged to plead the statute, it is held no objection to an assignment for the benefit of creditors that a debt barred by limitations was included in the list of liabilities: Swearingen v. Hendley, 1 Posey (Tex.), 639.