Former opinion modified and rehearing denied February 23, 1921.
On Petition for Rehearing.
BEAN, J.Defendants petition for a rehearing and urge further consideration of some of the questions involved in the case. Among other things it is urged that the court erred in rejecting, as a part of the consideration for tract C, the note of J. M. and R. A. Kitson, amounting to $400. It was held in our former opinion that Samuel McLain was not hound to pay this note for the reason that he did not sign it and that no agreement on his part to pay the same was evidenced in writing.
15. It is contended by the defendants that there is no authority for giving a third person the right to question the validity of that consideration; that the right to claim the benefit of the statute of frauds is personal to the debtor, and that a creditor cannot make such claim. We are referred to 20 Cyc. 306, 307.
The defense of the statute of frauds is personal, and cannot be interposed by strangers to the agreement. It can only be relied upon by the parties to the contract or their representatives or privies. Like *385many other defenses, such as usuary and infancy, it might he waived: 29 Am. & Eng. Ency. of Law, 807.
16. This suit is brought by plaintiff as administrator with the will annexed of the estate of Samuel McLain. It is not maintained by a stranger to the oral agreement alleged to have been made by Samuel McLain to answer for the debt of the Kitsons. As a general rule an executor or administrator has practically the same remedies at his disposal, and may make the same defenses, as those available to the decedent in his lifetime: 11 R. C. L., p. 258, § 293. The personal representative of a decedent may set up the defense of the statute of frauds where it is sought to charge the estate on a contract within the statute: 25 R. C. L., p. 735, § 384. While the plaintiff represents the creditors of the decedent, he also represents the estate of Samuel McLain, deceased, and it was his duty and privilege to see that only valid claims were allowed against such estate.
17. Complaint is made that defendants were not bound by the former judgment on the note, in the action of Ingle v. Parker as executor of the last will and testament of Samuel McLain, deceased. There were allegations on the part of defendants to the effect that the note was not valid as against them, but the allegations were not sustained by the testimony in this case. We referred to the fact that the note has been twice contested. The burden is unquestionably upon the defendants to maintain the allegations of their answer.
The plaintiff files a motion for the allowance of expenses of administration of the estate of Samuel McLain, deceased, in addition to the costs and disbursements of this suit. This matter was overlooked. The former opinion will be modified, so that, subject *386to the prior and superior right and lien of the defendant, Philomath College, to tract C in the sum of $1,614.93, the conveyances to tracts A, B and C will be decreed to be void as against the plaintiff, as administrator cum testamento annexo of the estate of Samuel McLain, deceased, to the extent of the judgment against said administrator, in favor, of J. W. Ingle, the costs of this suit and the expenses of administration of said estate, as determined by the County Court of Benton County, Oregon; that this cause be remanded to the Circuit Court of Benton County, Oregon, to decree the amount of such expenses of administration; that upon the satisfaction in full of said judgment, costs and expenses of administration within six months from the entry of decree on the mandate of the lower court the title to tracts A, B and C shall be confirmed in the defendant, Philomath College, and its grantees, successors and assigns; and that in the event such payments are not made within said time, then the lands described as tracts A, B and C or so much thereof as may be necessary shall be sold as upon execution, subject to the superior right and lien of the defendant, Philomath College, upon tract C in the sum of $1,614.93, and the proceeds of such sale applied in satisfaction of said judgment, costs of this suit, and the expenses of administration of said estate.
With this modification the former opinion is adhered to, and the petition for rehearing denied.
Modified and Rehearing Denied.
Johns, McBride and Benson, JJ., concur.