DocketNumber: L.A. No. 2975.
Judges: Sloss
Filed Date: 1/9/1913
Status: Precedential
Modified Date: 10/19/2024
The defendant appeals from a judgment against him, and from an order denying his motion for a new trial.
The action was brought to foreclose a mortgage on land in Riverside County. It is alleged in the complaint that in *Page 473 November, 1894, the defendant's intestate, E.P. Reynolds, Jr., who was then indebted to plaintiff in the sum of three thousand dollars for money loaned, borrowed of plaintiff the further sum of one thousand five hundred dollars, and promised to pay plaintiff the entire sum of four thousand five hundred dollars "whenever he, the said E.P. Reynolds, Jr., should be able to do so." This transaction took place at Wymore, Gage County, Nebraska. At the same time and place, Reynolds executed and delivered to plaintiff an instrument, in form a bargain and sale deed of the property above mentioned, the instrument being given and accepted as a mortgage to secure the payment of said sum of four thousand five hundred dollars. With the exception of three hundred and fifty dollars, the debt is unpaid. Reynolds died in December, 1907, and the defendant was, by the superior court of Riverside County, appointed administrator of his estate. Recourse against any property, other than that mortgaged, is waived.
The answer denies the making of the loan, and the execution of the mortgage. It also pleads the bar of the statute of limitations, specifying sections 361, 339 (subd. 1), and 337 (subds. 1 and 2) of the Code of Civil Procedure.
The findings were in favor of the plaintiff, and judgment of foreclosure followed.
The appellant's principal contention is that the evidence establishes that the action was barred by the statute of limitations, and particularly by section 361. Under that section, an action based upon a cause of action arising in another state cannot be maintained in this state after the lapse of time within which an action might have been maintained in the state in which the cause of action arose. There is an exception in favor of citizens of this state, but the plaintiff is not within the excepted class.
If, then, at the date of the filing of the complaint herein, an action on the debt could not have been maintained in Nebraska, the state in which the cause of action arose, the suit to foreclose the mortgage must be held to be barred here. (Allen v.Allen,
On the propositions just stated there is no dispute between the parties. They advance opposing views, however, regarding the time when a cause of action on the debt accrued. The loan was made in November, 1894. Reynolds died in December, 1907, and this action was commenced in May, 1910. There was, accordingly, a lapse of thirteen years after the making of the loan, until Reynolds's death, and over fifteen years until the filing of the complaint.
The appellant contends that where a promisor agrees to make a payment "when able," his obligation is to pay within a reasonable time, and that the right to sue is barred at the expiration of such reasonable time. If the rule be as claimed, it will not be doubted that a delay of fifteen years is, prima facie, long enough to permit a reasonable time within which to sue, together with two years thereafter, to elapse several times.
But the authorities in this state seem to establish a different rule for construing a promise to pay "when able." They support the respondent's contention that such a promise is conditional, and that no cause of action accrues until the condition is performed, that is to say, until the debtor is able to pay. InCurtis v. City of Sacramento,
Since the statute of limitations is an affirmative defense, it became incumbent upon the defendant, in order to establish this plea, to show that Reynolds had the ability to pay his debt, and that, accordingly, a cause of action against him accrued more than the statutory time before the filing of the complaint. The evidence on the subject is rather meager, and we think the court below was justified in making a finding, implied in the finding that the action was not barred, that Reynolds had not had such ability.
But if the views above expressed are sound, the very fact that prevents the statute from running (i.e., the lack of ability, on Reynolds's part, to pay his debt), operates also to prevent the plaintiff from maintaining his action. The reason that the statute does not run is that the promise is conditional upon the debtor's ability to pay, and that a cause of action does not accrue until such ability exists. If the promise is conditional upon such ability, it is, as is said in Rodgers v. Byers,
The result of these views being that the judgment must be reversed, it is unnecessary to consider the further points made by the appellant.
The judgment and the order denying a new trial are reversed.
Shaw, J., and Angellotti, J., concurred.