Two questions are thus presented for consideration on the pleadings in the case. The first of these may be said to be this plea of the statute of limitation; the second, the question of actual fraud in the foreclosure of the Spalding mortgag, and the transfer of title thereby to the children of Phineas M. Nightingale.
As regards the statute of limitations, it is observable that the foreclosure suit was brought in the name of Spalding, the original mortgagee, for the use of Johnston, administrator of the estate of Molyneux, for reasons explained by the attorneys who brought it. The suit was against Phineas M. Nightingale himself, who lived until the whole proceeding was ended and the property sold, and who died a few months afterwards. The proper, if not the only, time and place that this statute of limitations could have been pleaded was in that suit. Nightingale himself, who was the debtor and was in possession, had no equitable defense against the debt for which a judgment at law had been already obtained against him in one of the courts of Georgia, did not plead the statute of limitation. It would hardly be insisted by anybody that he was under any personal, legal, or moral obligation to plead that statute. He had obtained from Mrs. Molyneux a very favorable settlement of a debt of over $100,000. Dunginess, which was accepted at the price of $25,000, is stated in the oral testimony to have been sold not long afterwards for $15,000. The value of the slaves was adjusted on some fair basis, and corresponding deduction was made on that account, so that the sum of $51,250, which was yet due on the mortgage, was in every sense an honorable and just debt which Nightingale owed to the estate of Molyneux, and a plea of the statute of limitation to that debt, if it could have been sustained after the payments made upon it within the period of limitation, would have been an unjust exercise of his right to make such a plea, which could only result in favor of the plaintiff, Nightingale.
The right to plead the statute of limitations has been always held to be a personal privilege, of which the debtor could avail himself or not, as he might choose. See Pittman's Adm'x v. Elder, in the supreme court of Georgia, March term, 1886. It is true there are some authorities which go to show that a purchaser with the legal title, whose right accrued subsequent to the debt which may be barred by the statute, can also avail himself of the statute when he is sued to foreclose this equity of redemption. While this proposition is not undisputed, the cases in which this privilege has been sustained by the courts of Georgia are those in which the party setting it up has become the owner of the title or the entire equity of redemption, or has been found in possession of the mortgaged property. And in the case of Ewell v. Daggs, 108 U.S. 143, 2 Sup. Ct. Rep. 408, this court said that, though the subsequent purchaser might set up the plea of the statute, the plea must show that the action is barred as between the parties to the debt, because, as the owner of the equity of redemption, it is that debt he has to pay.
The statute of limitation applicable to this case is section 6 of the act of March 16, 1869, (Pamph. Laws Ga. 1869, p. 133,) which reads as follows: 'That all other actions upon contracts, express or implied, or upon any debt or liability whatsoever to the public, or a corporation, or a private individual or individuals, which accrued prior to first June, 1865, and are not now barred, shall be brought by first January, 1870, or both the right and right of action to enforce it shall be forever barred.'
This being a law of the state of Georgia, we must follow its construction by the courts of that state, so far as it has been construed. It is said in the argument in this case, but not much insisted upon by the plaintiffs, that this is a peremptory discharge of the debt, and is not a mere statute of limitations, which, to be available, must be pleaded, as is the case with other limitation acts. The proposition is that the statute in effect destroys the right of action, but this doctrine has been overruled repeatedly by the supreme court of Georgia, in which it has been held to be an ordinary statue of limitations. See George v. Gardner, 49 Ga. 441, 449; Harris v. Gray, Id. 585. In Parker v. Irwin, 47 Ga. 405, it was decided that the pleading of the statute was only a personal privilege of the debtor, and that to avail himself of the statute he must plead it. See, also, Baker v. Bush, 25 Ga. 594.