Nix & Story v. Cardwell , 2 Posey 266 ( 1880 )

Opinion.— The rule is well established that in suits for ' foreclosure of mortgages and other liens, all subsequent incumbrancers, of whose claim notice is given before the tiling of the suit, either by possession or registration, must be made parties or they will not be affected in any manner by such foreclosure. Peters et al. v. Clements, 46 Tex., 114; Cannon v. McDaniel et al., id., 303; Wright v. Wooters et al., id., 380; Byler v. Johnson et al.,45 Tex., 509; Delespine et al. v. Campbell et al., id., 628; Davis v. Rankin et al., 50 Tex., 279.

As a general rule the defense or plea of the statute of limitations is a personal privilege of the debtor which may be asserted or waived at his election; however, if he has parted with his interest -in property which might be affected by the defense of limitation, either by absolute conveyance or mortgage, then the person standing in the place of the debtor, with respect to the particular property, may avail himself of that defense to protect his rights to the same.

After the execution of the mortgage to Cardwell the mortgage could not renew the barred debt of Collins so as to affect Cardwell’s right to, or interest in, the property. Lord v. Morris et al., 18 Cal., 482; Grattan v. Wiggins, 23 Cal., 16; Connor v. Brown, 23 Cal., 143; Dawson v. Calloway, 18 Ga., 573; Wood on Limitation of Actions, sec. 41; Wait's Actions and Defenses, vol. 2, p. 236. It would have, been a sufficient defense to defeat a recovery by appellants to have asserted that Cardwell had not been made a party to the foreclosure suit by Collins; hence those claiming under the Cardwell mortgage have the superior right to the property in controversy.

Affibmed.