But where third persons have acquired an interest in mortgaged property subsequent to the mortgage, they may invoke the aid of limitations as against the mortgage, even though the mortgagor, as between himself and the mortgagee, may have waived its protection: Wood v. Goodfellow, 43 Cal. 185. Of course, the exceptions to the rule are based on privity of the parties or an interest in a certain fund. Thus, in Rawlins v. Rawlins, 75 Ga. 632, it was held that while generally it is a personal privilege to plead the statute of limitations, yet where a wife files a bill against her husband and the administrator of his father's estate to subject his interest in that estate to her claim for alimony, it would be inequitable to change an uncertain and invalid claim against the husband in favor of the estate into a certain and valid claim, and thus defeat the claim of the wife for alimony out of the portion coming to the husband from his father's estate. But with respect to an ordinary creditor, as distinguished from the claim of a wife against the husband for maintenance, a contrary rule was announced in Re Sheppard's Estate, 180 Pa. St. 57, 36 Atl. 422. In that case it was held that a legatee whose share had been attached by a creditor could confess judgment in favor of the estate on a bona fide debt due decedent, which is barred by limitations, and which more than offsets the legatee's share. It is, however, said to be the duty of a municipal board to plead the statute of limitations when it can do so under the facts: Trowbridge v. Schmidt, 82 Miss. 475, 34 South, 84.

In a suit between an administrator and creditors, the plea of limitations is not strictly personal to the administrator. It is his duty to interpose it as a defense, and where he neglects or declines to do so, the heirs or any other party to the action interested in the fund liable to be reached by the creditors may set it up: McKinlay v. Gaddy, 26 S. C. 573, 2 S. E. 497. But it seems that he is not bound to plead limitations unless, under facts known to exist, it can avail as a successful defense: Roberts v. Rogers, 28 Miss. 152, 61 Am. Dec. 542. Nor is he bound to plead the statute if the personal assets in his hands are sufficient to pay decedent's debts, though it seems that he is bound to plead it where a resort to realty is necessary to raise a fund to pay such debts: Pollard v. Scear, 28 Ala. 484, 65 Am. Dec. 364. And it seems that he is not bound to plead the statute where it would be detrimental to the estate to do so: Estes v. Browning, 11 Tex. 237, 60 Am. Dec. 238. But under other circumstances it appears that he must plead the statute: Dawes v. Shed, 15 Mass. 6, 8 Am. Dec. 80; Rogers v. Rogers, 3 Wend. 503, 20 Am. Dec. 716; Batson v. Murrell, 10 Humph. 301, 51 Am. Dec. 707. On the general subject of the right of an administrator or executor to waive the statute of limitations, see the monographic note to Fletcher v. American Trust etc. Co., 78 Am. St. Rep. 188. But very often the rule that an executor or administrator is bound to plead the statute of limitations is based to a large extent on the statutes with

respect to the duties of such legal representatives. The force of such statutes was adverted to in Smith v. Pattie, 81 Va. 654, although the court, in discussing the subject, also said: "The statute of limi tations, while it is purely a personal privilege as to a living party, who may avail himself of it or not as he may choose, is not such as to an executor or administrator, because there is no privity of contract between them and a testator, or intestate's creditor, the law does not presume that they can know whether a demand is just or unjust; and hence there is a manifest distinction taken between the declarations and promises of the original debtor and those made by a personal representative, who may have no personal knowledge of the transactions.''

In Woodyard v. Polsley, 14 W. Va. 211, it was held that after a man was dead and his estate was being distributed among his creditors in a court of equity, a creditor might rely on the statute of limitations to defeat the claim of another creditor, but the decision appears to have been based upon a statutory provision requiring the legal representatives of a deceased person to avail themselves of the plea of limitations.

c. Estoppel of Right to Plead the Statute.-A party may be es topped from relying on the statutes of limitation: Davis v. Ramage, 23 Ky. Law Rep. 1420, 65 S. W. 340; Lamb v. Clark, 5 Pick. 193; Lengar v. Hazlewood, 79 Tenn. (11 Lea) 539; Park v. Prendergast, 4 Tex. Civ. 566, 23 S. W. 535. Thus, where grantees accept a deed reciting that they agree to pay and assume a mortgage, they are estopped to deny the validity of the mortgage, or that it was an existing encumbrance at the date of their deed, because of being barred by limitations: Christian v. John, 111 Tenn. 92, 76 S. W. 906. And where a toll road corporation ceases to operate its toll road, it cannot plead limitations in bar of recovery by the original owner, of land on which it had erected a toll-house: Cynthiana etc. Turnpike Co. v. Hutchinson, 22 Ky. Law Rep. 1233, 60 S. W. 378. And where | payment is provided for out of a particular fund or in a particular way, the debtor cannot plead the statute of limitations without show. ing that the particular fund has been provided or the method pursued: Davis v. Simpson, 25 Nev. 123, 83 Am. St. Rep. 570, 58 Pac. 146. See, also, Sawyer v. Colgan, 102 Cal. 283, 36 Pac. 580.

The fact that the party invoking the statute of limitations may have put it in motion by his own default in the performance of a contract is no obstacle to its operation: San Antonio etc. Loan Assn. v. Stewart, 94 Tex. 441, 86 Am. St. Rep. 864, 61 S. W. 386. But, on the other hand, it is said that the participant in the breach of a trust cannot plead the statute: Duckett v. National Mechanics' Bank, 86 Md. 400, 63 Am. St. Rep. 513, 38 Atl. 983, 39 L. R. A. 84. Thus it has been held that where a county misappropriates common school funds, it cannot set up the statute of limitations in a suit for their recovery: Board v. State, 106 Md. 531, 7 N. E. 254. For a further

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discussion of the subject with respect to occasions where trust relations exist, see subdivision IV.

A plea of limitations will not be allowed where it would be inequitable and would perpetuate a fraud upon the creditor in the face of the oral promises not to plead the statute in consideration of delay or forbearance in pressing the claim: Cecil v. Henderson, 121 N. C. 244, 28 S. E. 481; Bridges v. Stephens, 132 Mo. 524, 34 S. W. 555. In the same manner, an agreement to arbitrate the claim may estop the debtor from pleading the statute: Davis v. Dyer, 56 N. H. 143. So, also, where the defendant had negotiated for the settlement of certain notes against an estate, and had led the plaintiff to believe that no resistance would be made to the allowance of the notes, the court held that the defendant could not plead the statute of limitations: Wilson v. McElroy, 83 Iowa, 593, 50 N. W. 55. See, also, Renackowsky v. Board of Water Commrs., 122 Mich. 613, 81 N. W. 581, to the same general effect. Likewise, one who willfully led plaintiff to believe that payments made at plaintiff's request to a creditor of plaintiff were payments on a certain debt, is estopped from asserting that they were not such payments, and thus make the statute of limitations available: Chase v. Carney, 60 Ark. 491, 31 S. W. 43. In Newton v. Carson, 80 Ky. 309, where plaintiff delayed suit for twenty days on the promise of a surety to confess judgment on the note in controversy at the end of that time, the court held that the delayed time should be excluded in computing the period of limitations. The general rule in this respect is this, namely, that where a party obtains delay by promising not to avail himself of the bar of limitations, he is estopped from pleading limitations: Holman v. Omaha etc. Co., 117 Iowa, 268, 94 Am. St. Rep. 293, 90 N. W. 833; Missouri Pac. Ry. v. Coombs etc. Co., 71 Mo. App. 299; Barcroft v. Roberts, 91 N. C. 363.

But it was held in Cameron v. Cameron, 95 Ala. 344, 10 South. 506, where the payee of a note asks maker to renew it, and he replies that it would never run out of date, his personal representatives, in an action on the note after his death, are not estopped from pleading limitations.

So, also, it is held that no equitable estoppel can arise after limitations have run against action for subscription to stock, so as to prevent a subscriber from pleading limitations: Pittsburgh etc. Co. v. Graham, 36 Pa. St. 77. In this connection see the monographic note on acknowledgment or new promise to suspend the running or remove the bar of the statute of limitations, attached to Warren v. Cleveland, 102 Am. St. Rep. 751.

III. General Bule as to Who may Plead the Statute of Limitations. The right to plead the statute of limitations is privilege which is personal to the debtor and may be availed of by others only when they stand in the relation of privity of estate to the debtor, such

as a subsequent purchaser or encumbrancer of the legal title, or one in privity with the claim or demand, or one who has succeeded to or may be said to occupy the place of the debtor: Tinsley v. Lombard (Or.), 78 Pac. 895; or as was said in the principal case (Hopkins v. Clyde, ante, p. 737), anyone in privity with a lien sought to be foreclosed against premises or anyone who can be said to stand in the place of the person in whose favor the statute of limitations runs is entitled to plead it.

In a general way, the authorities recognize the rule to be that the right to plead the statute of limitations is extended to all persons in privity with the person who originally had the right to plead the statute: Wood v. Goodfellow, 43 Cal. 185; Watt v. Wright, 66 Cal. 202, 5 Pac. 91; Thompson v. Sickles, 46 Barb. 49; Hill v. Hilliard, 103 N. C. 34, 9 S. E. 639; McClaugherty v. Croft, 43 W. Va. 270, 27 S. E. 246; Walker v. Burgess, 44 W. Va. 399, 67 Am. St. Rep. 775, 30 S. E. 99; Dawson v. Calloway, 18 Ga. 573.

Where the bar of limitations is complete against the owner of land, it is complete against one claiming through him, whatever may be the character of the claim: Smith v. Uzzell, 61 Tex. 220.

The relation of privies may be created by operation of law, by descent or by voluntary or involuntary transfers from one person to another and denotes mutual or successive relationship to the same rights of property: Nelson v. Trigg, 4 Lea, 701.

The personal representatives having the exclusive right to bring suit in behalf of the estate for the benefit of creditors, heirs a devisees, where an action is barred against such representatives, ic is also barred against the heirs, even though they be under disal ity: McLeran v. Benton, 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 87" So, also, where executors, administrators and other trustees for infants fail to sue for personal property within the statutory time, th infants are bound: Worthy v. Johnson, 10 Ga. 358, 54 Am. Dec. 393 And where a person during his lifetime, as executor, stands in the relation of trustee to a fund and cannot plead the statute of limitations in respect thereto, his representatives, after his death, stand in no better position and cannot plead the statute: Fox v. Tay, 89 Cal. 339, 23 Am. St. Rep. 474, 24 Pac. 855, 26 Pac. 897.

Hence we see that in determining who may plead the statute we find that the classes of persons who may do so are those who have the original right to do so, and those who have that right by reason of privity with those who have such original right.

IV. Application of the Rule to Various Classes of Persons. a. As Dependent upon Legal Capacity of Party Invoking the Privilege.

1. Nonresidents.-There is a marked difference between the status of an absent resident and that of a nonresident with respect to the ability of the creditor to pursue them: Connecticut Trust etc. Ca

▼. Wead, 172 N. Y. 497, 92 Am. St. Rep. 756, 65 N. E. 261. The rights of nonresidents to plead the statute of limitations is a matter which naturally、is determined by the statutes of the various states. In Milton v. Babson, 6 Allen, 322, it was held under the Massachusetts statutes that one who had never lived in Massachusetts could not avail himself of the statute of limitation in an action on a note given in that state. In Wetmore v. Marsh, 81 Iowa, 677, 47 N. W. 1021, a nonresident mortgagee was held not entitled to plead limitations in a proceeding to foreclose a mechanic's lien. While in Bannon v. Lloyd, 64 Md. 48, 20 Atl. 1023, nonresidents were held entitled to plead the statute of limitations.

2. Foreign and Domestic Corporations.-In Larson v. Aultman etc. Co., 86 Wis. 281, 39 Am. St. Rep. 893, a foreign corporation was held to be a person "out of the state" and not entitled to avail itself of the statute of limitations. In this connection see Barstow v. Union etc. Co., 10 Nev. 386; Rathbun v. Northern Central R. Co., 50 N. Y. 656; Kirby v. Lake Shore etc. Co., 14 Fed. 261; Tioga R. Co. v. Blossburg etc. Co., 20 Wall. 137, 22 L. ed. 331. But a foreign corporation, having a local existence and domicile in the state for the purpose of suing and being sued, may rely on the statute of limitations to the same extent as though chartered by the state: Huss v. Central etc. Co., 66 Ala. 472; Lawrence v. Ballou, 50 Cal. 258; King v. National Min. etc. Co., 4 Mont. 1, 1 Pac. 727; Thompson v. Texas I and etc. Co. (Tex. Civ.), 24 S. W. 856; Connecticut Mut. Life Ins. J. v. Duerson, 28 Gratt. 630.

With respect to domestic corporations, it seems that the statutes nerally contain ample provisions to include them within those 'persons" who may plead the statute of limitations. Thus in the

arly case of People v. Rector etc. of Trinity Church, 22 N. Y. 44, a orporation was held to be a "person" within the meaning of the statute of limitations with respect to the persons who could plead the statute: See monographic note to Boyd v. Mutual Fire Assn., 96 Am. St. Rep. 972, on the statute of limitations in actions against officers and stockholders of corporations.

b. As Dependent upon Personal or Official Relations of the Parties. 1. Marital Relations.-The statute of limitations does not apply as between a husband and wife as a general rule: Collins v. Babbitt (N. J.), 58 Atl. 481; Burnham v. McMichael, 6 Tex. Civ. 496, 26 S. W. 887. In Gudden v. Gudden's Estate, 113 Wis. 297, 89 N. W. 111, it was said that limitations do not run against a wife as between herself and husband so as to bar her claim against his estate for money loaned to him. But limitations run from the death of one of the spouses: Gracie's Estate, 158 Pa. St. 521, 27 Atl. 1083.

2. Fiduciary Relations.

A. In General.-As long as there is a continuing and subsisting trust, acknowledged or acted upon by the parties, the statute of