Luce v. McLoon

Dickerson, J.

On the 28th day of April, 1855, R. L. Jackson & Co. gave their promissory note for $700, payable at either bank in Rockland, in sixty days, to N. A. Farwell, William McLoon, and A. G-. Luce, who indorsed the note on the same day. The note was given for the benefit of the makers who obtained the money on it at the Rockland Bank.

The makers gave said McLoon and I. K. Kimball a mortgage to. secure this note and other notes, April 28,1855, which was seasonably recorded, and discharged, by order of the mortgagees, Oct 1, 1855.

Payment of the note was duly demanded, and notice given to each of the indorsers; and it was taken up by N. A. Farwell, Dec. 29, 1858, who demanded one-third of the amount paid by him, of the plaintiff, as administratrix of A. G. Luce, Dec. 24,1864, which she then paid by giving him her note. This action urns brought Dec. 24, 1864, to recover of the defendant the amount thus paid by the plaintiff.

The money counts are not relied upon in the argument, and if they were, this action cannot be maintained upon these counts, as the note was barred by the statute of limitations, when the plaintiff made the payment to Farwell, and no action could then have been maintained on the note against the defendant.

It will be found, upon an examination of the case, that a like fatality attends the special count in the writ. This count sets forth the facts upon which the plaintiff relies to fix the defendant’s liability, upon the ground that he took the mortgage of April 28, 1855, to secure the note in question, and discharged it without paying that note. Without determining whether the allegations in the special count, if proved, would be followed by the result claimed, it will be observed that the defendant’s liability, if any existed, growing out of the mortgage and his discharge of the same, accrued Oct. 1, 1855, when the mortgage Avas discharged. The statute of limitations would commence to run from that time. The plaintiff could not maintain an action against the defendant until she had paid the note, or a part thereof, if the defendant incurred any lia*326bility on account of the mortgage. Her cause of action, if any she had against the defendant on that account, would accrue when she made such payment. But the defendant discharged the mortgage Oct. 1, 1855, and she made the payment toFarwell Dec. 24,1864. The plaintiff’s claim, therefore, if any she had against the defendant, was barred by the statute of limitations, when she made the settlement with Farwell, and that statute having been pleaded, this action cannot be maintained.

As this objection is decisive of the case, it becomes unnecessary to consider the other points raised in defense.

Plaintiff nonsuit.

Appleton, C. J.; Cutting, Kent, Barrows, and Tapley, JJ., concurred.