Suit by Constantia B. Thomlinson against George H. Moffett, Mary M. Delaney and others. From an adverse judgment Mary M. Delaney appeals. Mr. John P. Grace, for appellant, cites: Right of lien afterperiod of limitation: 104 S.C. 508; 89 S.E., 500; 21 S.C. 70; 39 S.C. 259; 17 S.E., 638. Statute of limitations tobe interposed by debtors: 129 U.S. 465; 32 L.Ed., 732; 92 Ill., 543; 43 N.E., 367; 61 N.W., 977; 7 Pac., 606; 108 U.S. 143; 27 L.Ed., 682; 100 Fed., 817; 122 U.S. 175. Right of junior mortgagee to plead statute: 107 Ala., 248; 18 S., 126; 25 Pac., 862; 78 Pac., 895; 53 S.W. 342; 53 Pac., 671; 78 So., 421; 222 S.W. 832; 18 Ga. 632; 194 Pac., 117; 103 N.C. 34; 9 S.E., 639; 1 McC. Eq., 395. Evidence: 31 S.C. 1; 9 S.E., 726; 71 S.C. 391; 51 S.E., 113; 64 S.C. 434; 42 S.E., 194; 117 S.C. 391; 51 S.E., 113; 32 S.E., 232; 27 S.E., 246. Constitutionalityof act: Sec. 8864, Code 1932, 149 S.C. 52; 146 S.E., 686; 277 U.S. 389; 48 Sup. Ct., 553; 72 L.Ed., 927; 278 U.S. 515; 73 L.Ed., 483; 171 S.C. 511; 172 S.E., 857. Messrs. Huger, Wilbur, Miller Mouzon, for respondents, cite: Right of junior mortgagee to plead statute: 71 S.C. 391; 104 S.C. 508; 31 S.C. 1; 72 N.E., 846; 104 A.S.R., 737; 1 Ann. Cas., 1000; 18 So., 126; 78 Pac., 895; 53 S.W. 342; 53 Pac., 671; L.R.A., 1918-C, 1021; 78 So., 421; 32 S.E., 232; 37 C.J., 719; 77 Pac., 905; 59 Pac., 302; 115 N.W., 321; 9 S.E., 639; 72 N.E., 846; 23 S.W. 42; 104 Pac., 117; 26 L.R.A. (N.S.), 898; 30 L.Ed., 1105. Consideration of constitutional question onappeal where not raised in lower court: 30 S.C. 450; 9 S.E., 412; 57 S.C. 317; 34 S.E., 553; 62 S.E., 281; 40 S.E., 679; 63 S.C. 149; 41 S.E., 26; 74 S.C

( Lord v. Morris, 18 Cal. 482; Denny v. Palmer, 26 Wn. 469, 90 Am. St. 766, 67 P. 268; Bush v. White, 85 Mo. 339; Brandenstein v. Johnson, 140 Cal. 29, 73 P. 744.) Action to foreclose a mortgage on real property is a remedy distinct from the remedy by which the creditor may enforce the personal obligation for the debt secured by the mortgage, and may become barred by the statute of limitations even though the debt is not outlawed. ( Hill v. Hilliard, 103 N.C. 34, 9 S.E. 639; Stancill v. Spain, 133 N.C. 76, 45 S.E. 466; Hopkins v. Clyde, 71 Ohio 141, 104 Am. St. 737, 72 N.E. 846; Authur v. Screven, 39 S.C. 77, 17 S.E. 640; DeVoe v. Runkle, 33 Wn. 604, 74 P. 836; Colonial and U.S. Mtg. Co. v. Northwest Thresher Co., 14 N.D. 147, 116 Am. St. 642, 103 N.W. 915, 70 L.R.A. 814.) Frank L. Moore and Latham D. Moore for Respondent.

This request implies no more than a promise by the defendant to pay his half which the law raised from the fact of payment without any express promise. There was no promise not to plead the statute if delay was given, as is held necessary, Hill v. Hilliard, 103 N.C. 34; nor, indeed, was there any promise to delay given by plaintiff. The indorsement of the note to the plaintiff, one of the obligors, by the creditor, in no wise altered the fact that it was a payment and that the note was canceled thereby.

The courts cannot dispense with the statute upon such evidence. In Hill v. Hilliard, 103 N.C. 34, the point is fully discussed by Shepherd, J., who holds that, to waive the statute, there must be an "agreement, either express or implied, not to plead it." Here there is no agreement, which requires two parties, but merely a request not to sue and an expression of opinion that the matter would be adjusted.

His Honor overruled the exception to said finding, and rendered judgment accordingly, from which the defendant Coxe appealed. The plaintiff insists that a second mortgagee may plead the statute of limitations against a prior mortgagee, and for that position relies upon the decision of this Court in Hill v. Hilliard, 103 N.C. 34. That case came before the Court upon an agreed state of facts in which the simple question submitted was whether a subsequent mortgagee has the right to avail himself of the statute of limitations as a defense to the first mortgage. This proposition was held in the affirmative, and we think correctly so. In this case the first mortgagee, Coxe, has not instituted any action to foreclose his mortgage, nor does he in his answer ask for any affirmative relief. It is difficult to perceive how the subsequent mortgagee can bring the defendant into court for the purpose of having his mortgage canceled, because, as he avers, an action upon it would be barred if the statute was set up in an answer.

The defendant is not estopped to plead the statute, as his promise was not an agreement not to plead it, as it was in Haymore v. Commissioners, 85 N.C. 268. A request not to sue will not stay the statute, it must be an agreement not to plead it. Hill v. Hilliard, 103 N.C. 34. Plaintiff can not recover the $50, as there is no evidence that any option "went through." We can find no error in law, and we can not deal with the morality of the matter.

In considering that section of the Code this Court held, in the exercise of its equitable jurisdiction, that a plea of the statute of limitations would not be allowed as a defense when it would be unconscientious and inequitable and would perpetrate a fraud on the creditor in the face of such promise, although they were not in writing. Joyner v. Massey, 97 N.C. 148; Hill v. Hilliard, 103 N.C. 34; Wood on Limitations (2d Ed.), 228, sec. 76. Under the issues submitted, the defendant was at liberty to make any defense which could avail him on the trial of the matter in controversy, and the issue tendered by him was unnecessary. Affirmed.

The reply of the administrator to the plaintiff that it was not necessary to get a lawyer and that he "would see the judge and do whatever he said," was not conduct which waived the statute and justified the plaintiff in not bringing action. Hill v. Hilliard, 103 N.C. 34; Joyner v. Massey, 97 N.C. 148. Besides, the claim was already barred, and the plaintiff was not prejudiced by the delay.

And now the bar of our present statute of limitations may be overcome by proof of a promise or acknowledgment, but the proof must be in writing, unless the new promise be one that the law implies from a part payment. Hill v. Hilliard, 103 N.C. 34. New trial.

{¶ 26} While I concur, I write separately to address the dissent. Not acknowledged or addressed is Hopkins v. Clyde , 71 Ohio St. 141, 72 N.E. 846 (1904), wherein the Supreme Court cited with approval Hill v. Hilliard , 103 N.C. 34, 9 S.E. 639 (1889) : {¶ 27} " ‘A subsequent mortgagee or purchaser of the equity of redemption has the right to avail himself of the statute of limitations as a defense to the first mortgage, and after the rights of the first mortgage are barred by the statute no act or acknowledgement on the part of the mortgagor can revive the mortgage as to subsequent mortgagees or purchasers .’ "