I am in full accord with the conclusion that the alleged agreement to cancel the mortgage indebtedness, in consideration of professional services rendered by respondent, is not sustained by the evidence. Although in his answer respondent does not undertake to set up a counterclaim or offset for the value of the medical services rendered to the Anderson family, I see no objection to remanding the case for the purpose of determining the fair and reasonable value of these services and crediting the amount so found on the mortgage debt. But I think the majority opinion goes entirely too far in applying the well-known maxim of equity that "he who seeks equity must do equity".
The result of our conclusion that respondent has failed to establish his affirmative defense is this: Appellants hold a past due note and mortgage of respondent which they are entitled to foreclose in a court of equity, but under the holding of the majority opinion they are permitted to do so only at the price of waiving the statute of limitations on this claim for medical services. Although this claim is frequently referred to in the testimony in connection with the mortgage debt, it does not grow out of the mortgage transaction and is an entirely separate matter. The limitation on the application of this maxim is stated in Pomeroy's Equity Jurisprudence, 3rd Ed., Section 387, as follows: "Finally, the principle will not apply so as to compel the plaintiff to do equity, where the relief sought by the plaintiff, and the equitable right or relief secured or awarded to the defendant, *Page 268 belong to or grow out of two entirely separate and distinct matters. The true meaning of the rule in this respect is, that the equitable right or relief secured to or conferred upon the defendant must be something connected with the subject-matter of the very suit or controversy for the proper decision of which the principle is invoked. Or, to state the same doctrine in more detailed and particular terms, `the rule is applied where the adverse equity to be secured or awarded to the defendant grows out of the very controversy before the court, or out of such transactions as the record shows to be a part of its history, or where it is so connected with the cause in litigation as to be presented in the pleadings and proofs, with full opportunity afforded to the party thus recriminated to explain or refute the charges.'"
Various cases involving the application of the maxim and the restrictions which the courts have placed upon it are ably reviewed in Malcolm et al. v. Talley, 89 W. Va. 531,109 S.E. 613. Also see 30 C.J.S., Equity, § 91.
It is stated in 37 Am. Jur., page 63, that "in an action to foreclose a mortgage, claims against the mortgagee which are barred by limitations may not, in the absence of statute, be set off against the debt secured by the mortgage". Under the authorities heretofore mentioned this would be particularly true where, as here, the claim is entirely distinct and separate from the mortgage debt. It was so held in Bankof Columbia v. Gadsden, 56 S.C. 313, 33 S.E. 575.
But if we assume that a court of equity is empowered to impose the condition that no part of this claim for medical services shall be barred by the statute of limitations, I do not think it is a power which should be exercised under the facts of this case. Although respondent says it was not until 1934 that he got the idea that Mr. Anderson did not intend to enforce the collection of this mortgage, he admits he did not keep a record of the services rendered to the Anderson family or enter any charge therefor upon his books during any portion of the period covered by this claim. No demand *Page 269 was ever made upon decedent for payment, nor did respondent ever state to him that he intended to make a charge for these services. Respondent now seeks to establish a claim covering a period of twenty-five years from mere memory, which necessarily has become obscure from lapse of time. He admits that he does not recall the number of visits made to the Anderson home or the particulars of all the services rendered. Anderson is now dead and appellants are deprived of his knowledge relating to this matter. It seems to me inequitable to require his legatee and the assignees of this mortgage to surrender the bar of the statute of limitations to the greater portion of this stale claim which respondent negligently failed to assert during the lifetime of Mr. Anderson. I think the Court has not given effect to another important maxim, "Equity aids the vigilant, not those who slumber on their rights".
I would remand the case for the purpose of allowing the respondent to set up his claim by way of offset, but with the right accorded to appellants of interposing the plea of the statute of limitations or any other defense they may have.
TAYLOR, J., concurs.