11 Ind. 161 | Ind. | 1858
Suit upon a note. Answer, the statute of limitations of twenty years.
Reply, that Green, the maker of the note, died within twenty years after the making of the note.
Demurrer to the reply, as not being sufficient in law, &c. Demurrer sustained, exception taken, and judgment for the defendant.
The correctness of the decision depends upon the construction of the statute of limitations.
That statute makes twenty years a bar to an action on a note. 2 R. S. p. 76. This is the general rule. Section 217, p. 77, of the same statute enacts this exception:
“ If any person entitled to bring, or liable to any action, shall die before the expiration of the time limited for the action, the cause of action shall survive to or against his representatives, and may be brought at any time, after the expiration of the time limited, within eighteen months after the death of such person.”
By this exception, an action may be brought on a note, where either party to it has died, just as long after the expiration of twenty years as eighteen months from the death of such person would extend.
In this case the answer shows that the suit was instituted after the lapse of twenty years, and presents a prima facie bar.
The reply avers that the maker of the note died within the twenty years; but that fact alone did not bring the case within this exception; for he may have died within ten or eighteen years from the making of the note, so that eighteen months from the death might have elapsed before the expiration of the twenty years. The reply should have averred, to have been any answer to the bar set up, that the maker died within the twenty years, and that the suit was brought within eighteen months from his death.
Per Curiam. — The judgment is affirmed with costs.
