To a petition for rehearing—
JUDGE HINESdelivered the following response:
If it be conceded that the statute of limitations is not ■ pleaded in such a way as to give appellants the benefit of it, our opinion that the judgment should be reversed as to the • claim of Burtle is not altered. The evidence is not sufficient to support the claim as a subsisting liability. The mortgage being only an incident to the debt, amounts in evidence to nothing more than an oral declaration made by the decedent in 1861 that he was at that time indebted to Burtle, on • account, the sum mentioned in the mortgage, and when ■ considered in connection with the fact that no effort is made to account, for the disposition of the property covered by "the mortgage, and no effort made to enforce the payment of the debt until more than thirteen years after the date of the mortgage, and until more than eight years after the • claim would have been barred by limitation, there is clearly a failure of proof that the claim is a subsisting demand. The answer and exceptions of the guardian ad litem put in issue every fact necessary to be established to authorize a •recovery; that is, the creation of the debt and that it has not been paid, and as this goes to the merits of the claim, the • adults are as much entitled to shelter themselves behind it *292as the infants. (Leach v. Kendall’s adm’r, 13 Bush, 426.) There is no proof of the debt except the mortgage, and. that, under the circumstances of this case, is not sufficient.
Petition- overruled.