Deaton v. Deaton , 1902 Ill. App. LEXIS 356 ( 1903 )

Mr. Justice Harker

delivered the opinion of the court.

The sole question for our decision is whether the Circuit Court erred in holding that the note and mortgage in question were barred by the statute of limitations as against the remaining interests of appellees in the land which Matilda Deaton owned at the time of her death.

The note became due on the first of March, 1889, and under section 16 of the limitations act, was barred ten years thereafter unless the bar was removed by payment, or new promise to pay, in writing. Appellants’ bill was not filed until February 5, 1901, nearly two years after the expiration of the ten years. It is contended that because of the payment made by Thomas Deaton on the 7th of February, 1891, the statute did not begin to run until that date. That is true as to Thomas Deaton, the principal maker, and as to the land owned by him, it was included in the mortgage; but not as to the land owned by his wife, Matilda Deaton. When she pledged her land to the payment of the debt, the pledge was that of a surety. The law is well settled in this state that a payment or new promise of the principal maker of a promissory note which has the effect to take the case out of the statute of limitations so far as he is concerned, does not remove the bar so far as it relates to his unadvised and non-consenting surety. Kallenbach Jr., v. Dickinson, 100 Ill. 427; Ætna Life Ins. Co. v. MeNeely, 65 Ill. App. 222; Ætna Life Ins. Co. v. McNeely, 166 Ill. 540.

A surety who executes a mortgage to secure a note and does not sign the note is entitled to all the rights and privileges of a personal surety under the statute, and whatever would, be necessary to remove the bar in the one case would be required in the other.

The decree of the Circuit Court will be affirmed.