Roads v. Whitcock's Adm'r ( 1873 )

'Opinion by

Judge Pryor :

There is no reason why the statute of limitation is not available as a defense in this action. The appellee was the surety on the note and there has been no period since its execution that appellant could not have instituted an action upon it against the surety save the time in which he was precluded by the statute from suing his administrator (six months). If suit had been instituted within the seven years against the principal, the surety might have secured himself in his liability as such. It is true the appellant -had received the money from the administrator of the principal and supposed that his debt was satisfied. This, however, does not stop the statute from running. It is also conceded that - the money was paid through á mistake by the administrator and received by the appellant without any knowledge of the condition of his deceased intestate, but ignorance of his rights is no response to the statute, and if there was any obstruction it was caused by the act of those over whom the appellant had no control. The substance of the defense, that the appellant supposed the estate of the principal was ample to pay the debts, and for that reason no effort was made to compel the surety to pay; that he had good cause for believing this when he had, in fact, received the money is certain, but still no such exception is to be found in the statute that can relieve him from an honest mistake indulged in by himself and his debtor, without the knowledge even of the surety.

The judgment is affirmed.