122 Iowa 302 | Iowa | 1904
The claims herein were first filed against the defendant as administratrix of the estate of Prank P. Van Patten, deceased, March 25, 1899, and within five years after their payment by the plaintiff in the fall of 1894. At that time the demand for their allowance was based upon plaintiff’s affidavit that he was owner of the notes, and that they were entirely unpaid. This filing.was equivalent to the beginning of an action. Fritz v. Fritz, 93 Iowa, 27. Not until November 1, 1900, more than five years after such payment, were the claims amended so as to assert that plaintiff had signed the notes as surety of deceased, and had subsequently paid-them. A surety, in paying a note on which he is obligated as such, does not become owner of the note, and cannot maintain an action thereon. His remedy is on an implied promise of the principal to indemnify him for the amount actually paid for his benefit. As this promise is not in writing, an action thereon is barred in five years from the time it takes effect. Harrah v. Jacobs, 75 Iowa, 72; Lamb v. Withrow, 31 Iowa, 164.
As more than five years from the time plaintiff paid the notes had elapsed when the amendment was filed, appellant contends that the claims were barred by the- statute of lim