47 Iowa 469 | Iowa | 1877
I. The petition alleges that, in 1867, in order to enable defendant to raise an amount of money for his own use, the plaintiff, with another, indorsed defendant’s promissory note upon which he secured a loan or advancement; that plaintiff’s indorsement of the paper was solely for defendant’s accommodation and without other consideration; after the maturity of the note, suit was .brought upon it, and judgment rendered thereon against the defendants, plaintiff and co-indorser, on the 17th day of June, 1859, for $690.15, and that this judgment became a lien upon certain real estate owned by plaintiff. The petition proceeds in the following language: ?c That thereafter, on the 17th of September, 1864, petitioner having occasion to use said real estate for the purpose of raising money thereon, and being unable to do so as long as the lien of said judgment existed thereon, made application to said defendant to remove such lien; that thereupon to accomplish this end said defendant made arrangements with one W. L. Bradley, who then owned
The answer of defendant puts in issue the payment of the judgment by plaintiff, as alleged in his petition, and the agreement therein set up. It also pleads the statute of limitations.
“ In 1864, I desired to obtain money to go to California, by mortgaging some property, or Mr. Bradley did for me as my agent. We found this judgment on record against me as one of the parties, and I requested Mr. Crawford repeatedly to remove it. After a number of interviews, Crawford stated that his property was in the hands of a friend who was protecting it for him — that he would dispose of his property in a little while and pay the debt, but that if I had the judgment levied on the property, it would injure him very much, and he asked me to raise the sum of $200 in addition to the sum I intended to raise to pay my expenses to California, or in some manner get a release from this judgment, and I did make an exchange by which I paid forty acres of land at five dollars an acre, to the administrator or attorney of this estate who held the judgment against me, and I got the release there indicated, of record, and I went to California and was gone two or three years, and returned and called Mr. Crawford’s attention to the matter in a note, and he neglected or refused to pay any portion of the indebtedness which I had advanced.”
Remembering these familiar principles, and conceding that the petition of plaintiff sets up a contract, which, if established, would operate to suspend plaintiff’s right of action (a question, however, that we do not determine), we have only to inquire whether the evidence found in the record tends to support such a contract. As we have said, the only testimony upon this point we have quoted above. We fail to discover that it has any force whatever in support of the contract pleaded by plaintiff. It shows that defendant urged plaintiff to satisfy the judgment, and promised “ that he would dispose of his property in a little while and pay the debt.” This is all. It cannot be pretended that plaintiff could not, at any time after he made the advance, have brought his action against the defendant. His right of action accrued more than five years prior to the commencement of this suit. It is therefore barred by the statute of limitations.
III. Counsel for appellant insist that “ the plaintiff is entitled to recover, even if there had been no agreement by the defendant to repay, as alleged in the amended petition, and fully proved. The plaintiff, by his act of payment as 'surety, becomes subrogated to all the rights and securities of the judgment creditorpro tanto.” The sufficient answer to this position is that the action is based upon the express agreement of defendant to pay plaintiff as alleged in the petition, and not upon his rights as surety, or the rights he holds by subrogation on account of his payment as surety. He must recover, if at all, upon the case made by his petition.
Reversed.