I concur in the prevailing opinion. There is, however, one fact omitted therein which should be added. The omission of that fact possibly permits an inference to be drawn, and which appears in the dissenting opinion, to the effect that Mrs. Hodge has, in some way, been defrauded through the circumventive acts of the bank and Truax.
It must be borne in mind, and it is admitted, that the indebtedness to the bank upon the notes of Hodge at the time of the latter's death was $42,248.72. What should be added to the statement of the case is this: When the bank made its settlement with Truax upon the basis of twenty thousand dollars cash, it was upon the understanding and agreement that the Hodge *Page 375 notes, held by the bank, should receive credit thereon in the full sum of the unpaid balance owing on the Truax contract with Hodge, namely $35,856, although at that time that amount had not yet fully accrued. In other words, the indebtedness from Hodge to the bank was to be reduced as of the date of the settlement, in the full amount that could ever be recovered from Truax by Hodge. With the allowance of that credit, there was still owing to the bank on the Hodge indebtedness the sum of $7,392.72.
When the case is viewed in its true light, it is apparent that Mr. Hodge, or his representative, has not been defrauded out of fifteen thousand dollars, or any other sum, as the dissenting opinion infers. What Mrs. Hodge has been, and will be, prevented from doing is using the statute of limitations as a sword of offense rather than as a shield of defense. She cannot institute or maintain an affirmative action against the bank or against its assignee, Truax, for the recovery of the collateral security, upon the contention or theory that the indebtedness secured thereby has been paid. Were the bank or Truax the aggressive actor in a suit by it or him against her upon the notes, the statute would be a defense. The law upon that point is not in doubt. No less in doubt is the law that the debtor may not invoke the statute of limitations in an action brought by him or her to recover collateral security or to satisfy the lien of a mortgage, so long as the debt secured thereby has not been paid.
If Hodge, or his representative, has been defrauded in this instance, then every debtor who seeks recovery of his collateral security is defrauded, if the same is not surrendered to him, on demand, at the expiration of the statute of limitations affecting the principal *Page 376 indebtedness. But refusal to surrender the security in such a case is not fraud. It is a right protected in law.