This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The defense of limitations is usually treated as one personal to the debtor.1 Since it is personal to him, he may waive it if he sees fit to do so.2 His waiver of such defense by a new promise, acknowledgment or part payment is discussed elsewhere.3 He may also waive such defense by failure to plead it in an action against him on the cause of action barred by the statute.4 Persons who represent and stand in the place of the person to whom the privilege of pleading limitations belongs may also plead the statute.5 An executor represents his decedent and may plead limitations on behalf of the estate.6 If an attempt is made under statutes authorizing the sale of realty to pay the debts of the decedent, to sell realty to pay debts barred by the statute of limitations, the heir to whom such realty has descended may interpose the defense of the statute.7 It has been held that the assignee of a claim may plead limitations against a set-off if his assignor could have pleaded it.8 Since the right to plead the statute is personal, others cannot invoke it as a defense if the judgment debtor wishes to waive it.9 Thus a second mortgagee cannot compel his debtor to plead the statute of limitations as against a first mortgagee,10 and unsecured creditors cannot compel the debtor to set up limitations as a defense against other creditors whose claims are secured.11 A judgment creditor having a second lien cannot compel the debtor to plead limitations against another judgment creditor who has a lien, prior, but barred by limitations,12 and failure to plead the statute cannot be treated as fraudulent on the application of other judgment creditors.13 In foreclosure proceedings one who does not allege an interest in the realty mortgaged cannot plead the statute of limitations against the mortgage debt.14 A different rule is followed in some jurisdictions, and it is held that a creditor may plead limitations for his debtor against another creditor.15 This last rule is, however, usually limited to cases of insolvency.16
1 Sanger v. Nightingale. 122 U. S. 176; Corbey v. Rogers, 152 Ind. 169; 52 N. E. 748; In re Passmore, 104 Pa. St. 632; 45 Atl. 417. "The right to plead the statute of limitations has always been held to be a personal privilege of which the debtor could avail himself or not, as he might choose." Sanger v. Nightingale, 122 U. S. 176. 183.
2 Clark v. Augustine, 62 N. Y. Eq. 689; 51 Atl. 68.
3 See Sec. 1673 et seq.; 1679 et seq.; 1687 et seq.
4 Allen v. Smith, 129 U. S. 465; Parker v. Irvin, 47 Ga. 405; Anderson v. McNeal, - Miss. - ; 34 So. 1.
s" 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, devisees, or other persons holding under him, may set up such a defense." Corbey v. Rogers, 152 Ind. 169, 171; 52 N. E. 748.
6 Michetree v. Veach. 31 Pa. St. 455. .
7 Steele v. Steele, 64 Ala. 438; 38 Am. Rep. 15; Riser v. Snoddy, 7 Ind. 442; 65 Am. Dec. 740; Rogers v. Rogers, 3 Wend. (N. Y.) 503; 20 Am. Dec. 716; Smith v. Brown, 99 N. C. 377; 6 S. E. 667; Gilman v. Tisdale, 1 Yerg. (Tenn.) 285.
8 Walker v. Burgess, 44 W. Va. 399; 67 Am. St. Rep. 775; 30 S. E. 99.