Tinsley v. Lombard

78 P. 895 | Or. | 1904

Mr. Justice Wolverton

delivered the opinion.

■ The question involved is whether the plaintiff is in a position to set up the statute of limitations as a bar to defendant’s foreclosures. The defendant is not controverting any right that plaintiff is seeking- to maintain, but is aiming only to have his mortgages foreclosed in the same suit with the plaintiff’s, completely subordinating his alleged hens upon the premises described in plaintiff’s mortgage, and his rights thereunder, to those of the plaintiff. So that, as to the right of priority of liens, whether for the principal sums or for interest, or for taxes paid, there is absolutely no dispute or contest. Such being the case, plaintiff cannot make use of the statute of limitations to cut off defendant’s rights of suit. The right to interpose the statute of limitations is a privilege, personal to the debtor, that may.be availed of by others only when they stand in the relation of privity of estate to the debtor, as a subsequent purchaser or incumbrancer of the legal title, or are in privity with the claim or demand, or have succeeded to or may be said to occupy the place of the debtor, as executor or administrator, and the like. And the pleader must show that it is a bar as between the parties to the debt. Certainly no person who is not injured by the enforcement of the demand can be heard to insist upon the plea: 2 Pingrey, Mortgages, § 1575; Wood, Limitations (3 ed.), § 41; Grattan v. Wiggins, 23 Cal. 16; Coster v. Brown, 23 Cal. 142; Cartwright v. Cartwright, 68 Ill. App. 74; Board v. Presbyterian Church, 19 Wash. 455 (53 Pac. 671); Ewell v. Daggs, 108 U. S. 143 (2 Sup. Ct. 408); Sanger v. Nightingale, 122 U. S. 176 (7 Sup. Ct. 1109); Blair v. Silver Peak Mines (C. C.), 84 Fed. 737; Hanchett v. Blair, 100 Fed. 817 (41 C. C. A. 76). Now, the plaintiff here sustains no such relation to the defendant appealing, nor is he in privity with the claims or demands that defendant is seeking to have declared liens upon the premises involved. But conceding, as defendant does, that plaintiff’s lien is prior and superior in time and right to his, the plaintiff cannot, through the right of the debtor, bar the defendant’s right of foreclosure in this suit. The decree of the circuit court will therefore be reversed, the demurrers overruled, and the cause remanded for such other and further proceedings as may seem proper. Reversed. ,