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affirmed without opinion in (1916) 216 court said that if he were permitted N. Y. 746, 111 N. E. 1084, the court to maintain this defense the result said that the provision in the deed to would be that he would not pay for the defendant, by which she agreed the property all that he agreed to to pay the plaintiff's note as a part pay.

And the doctrine was quoted of the consideration of the conveyance that a vendor may direct how the purfrom certain other parties, was a chase money shall be paid, that he covenant which the plaintiff might may make such disposition of it as he enforce, and that the Statute of Limi- wishes, and if the vendee agrees to tations did not run thereon until pay according to the vendor's directwenty years thereafter.

tions he cannot set up a defense that It was held in Greenley v. Greenley the vendor was under no duty to ap(1906) 114 App. Div. 640, 100 N. Y. ply the money in this manner. Supp. 114, that the Statute of Limita

In Fender v. Haseltine (1904) 106 tions did not begin to run in favor of Mo. App. 28, 79 S. W. 1018, which is the grantee against a creditor of one to the effect that the defendants, in who conveyed property under assuming payment of a note past due agreement by the grantee to manage executed by the plaintiff, became the and dispose of the same and, after re- principals therein and the plaintiff imbursing himself for his expenses became surety, the liability of the and services, to pay the debts of the defendants for failure to pay the grantor, until the contingency speci- note was regarded apparently as subfied in the agreement had occurred; ject to a plea of limitations after the that prior to this time the grantee's expiration of the statutory period mere repudiation of the agreement from the date the note became due, would not start the Statute of Limita- and not from the date of the defendtions running in his favor and against ants' promise, but the case is not a the creditor; that the agreement was a direct authority on the point, because, continuing one, which might be en- in either event, the limitation period forced against the grantee by the had not expired. creditor of the grantor, even after

2. Debts due in future. the Statute of Limitations had run against the notes evidencing the cred

Where the indebtedness which a itor's claim.

third party assumes and agrees to pay If the statute has already run

is not yet due at the time the promagainst a mortgage debt at the time it

ise is made, the Statute of Limitais assumed by a purchaser of the

tions in favor of the promisor and property from the debtor, this as

against the creditor does not begin to sumption and promise to pay may

run until the maturity of the debt. operate as a waiver of the bar of the BOGART v. GEORGE K. PORTER CO. (restatute, or as an estoppel on the part ported herewith) ante, 1045; Carnaof the promisor to urge such bar as

han v. Lloyd (1896) 4 Kan. App. 605, a defense in an action against him

46 Pac. 323; McCaslin v. Pittsburgh by the creditor. Thus, where at the Foundry & Mach. Co. (1921) Тех. . time of the exchange of properties the

Civ, App. - 232 S. W. 887 (see this Statute of Limitations had already

case under III. a, i, supra). See run against the mortgage debt on one

also Roberts v. Fitzallen (1898) 120 of them, but payment of this debt

Cal. 482, 52 Pac. 818, infra. As to was expressly assumed, as a part of running of statute between debtor and the consideration, by the party to the

one assuming debt subsequently macontract who took this property in

turing. see Patterson

V. Colmer the exchange, it was held in Davis

(1886) 4 Sadler (Pa.) 138, 6 Atl. 758, v. Davis (1912) 19 Cal. App. 797, 127

and Crofoot v. Moore (1831) 4 Vt. Pac. 1051, that he could not there

204, after successfully set up the bar of In Carnahan v. Lloyd (1896) 4 Kan. the statute previously running as a App. 605, 46 Pac, 323, supra, it was defense in a foreclosure suit. The held that when the grantee of mortgaged premises assumes and agrees cured by deeds of trust subsequently to pay the mortgage debt (due at a executed should have a certain time future date) as a part of the pur- within which to bring suit. It was chase price, without specifying any held that the statute applied to a case time for payment, no cause of action where one to whom land was conveyed upon which the Statute of Limitations subject to a deed of trust assumed in can run accrues against him until the deed payment of the indebtedness, the debt assumed becomes due and subsequently due; that this assumppayable according to the contract of tion of the debt was for the benefit the original party, and that the of the holder of the note evidencing cause of action against the grantee the debt, and was as .effective as if does not accrue immediately on the the contract had been executed in the date of the assumption of and agree- form of a new note and deed of trust ment to pay the debt.

directly in favor of the holder of the And it was held in Roberts v. Fitz- note, instead of a contract of assumpallen (1898) 120 Cal. 482, 52 Pac. 818, tion of an obligation theretofore that where a purchaser of land in the executed by the grantor; and that the deed assumes and agrees to pay a obligation of the grantee was, theremortgage thereon, which is not yet fore, within the statute, even though due, the Statute of Limitations does limitations had run as regards the not begin to run in his favor against original debtor. the holder of the mortgage, on this

b. As between debtor and person assumpromise, at the time it is made, as a

ing debt. separate and distinct undertaking;

Different conclusions have been that the statute runs against the reached on the question whether, as mortgage obligation, and not against between the promisor and promisee, the promise as a new and independent the Statute of Limitations begins to agreement; and that the grantee, in a

run in favor of the former on his foreclosure suit brought by the

promise to discharge the latter's inholder of the mortgage debt, may be debtedness to a third person before held liable for a deficiency judgment

the latter has in fact sustained injury where the statute has not run against by payment of the debt, on breach of the mortgage.

the promise. The question would Where the bond which was secured

seem to depend upon the nature of the by a mortgage was not payable until

contract by which the debt is asthe death of a person named, it was

sumed; that is, whether it is merely held in Acton v. Shultz (1905) 69

a contract of indemnity. One line N. J. Eq. 6, 59 Atl. 876, that on a

of authorities holds that the contract conveyance of the mortgaged prop

is not one merely of indemnity, and erty and an assumption of the mort

that the Statute of Limitations begage by the grantee, the Statute of

gins to run at the maturity of the Limitations in favor of the grantee debt, as between the original debtor and against the holder of the bond

and the person who assumes and did not begin to run until the subse

agrees to pay it, even though the quent death of such person, and that

former has not discharged the same. the mere failure to pay interest on

Thus, in Patterson V. Colmer the bond for sixteen years prior to

(1886) 4 Sadler (Pa.) 138, 6 Atl. 758, the bringing of the action was not

where a part of the consideration of a bar.

the purchase price of property sold The particular terms of the stat

by the plaintiff to the defendant was ute controlled in Denman Co. v.

the payment by the latter of a certain Standard Sav. & L. Asso. (1918)

indebtedness owed by the former, Tex. Civ. App. —, 200 S. W. 1109, the subsequently maturing, it was held question being whether the assump- that as soon as this debt became due tion of the indebtedness by the pur- the defendant was bound to pay the chaser was within a statutory provi- same, and if he did not do so, or sion that the owner of all notes se- tender payment, there was a breach of his contract, and the Statute of Limi- It was held also in Crofoot v. Moore tations then began to run; that the (1831) 4 Vt. 204, that where the decontract was not one to indemnify fendant agreed to pay to a third party the plaintiff, and that the statute did the plaintiff's share of certain notes not begin to run merely when the to a third party, which were executed plaintiff was compelled to pay the by the plaintiff and another, and were debt.

due at a subsequent date, the Statute So, where a purchaser of chattels, of Limitations began to run on the who had given his note for the pur- maturity of the notes and the failure chase price, divided the property of the defendant to keep his promise, with a third person, who agreed to and not when the plaintiff suffered pay half of the note, but failed to damage by payment, the contract not do so, and the maker thereof was being one merely of indemnity. subsequently compelled to pay it in On the other hand, there are authorfull by an action brought against ities which, at least on the particular him by the payee, it was held in Joiner facts, have reached a contrary result. v. Perry (1846) 32 S. C. L. (1 Strobh.) Thus, in Sims v. Goudelock (1852) 76, that, as between the maker of 40 S. C. L. (6 Rich.) 100, the court the note and the third party, the regarded a contract by which one of cause of action in favor of the former the parties undertook to pay a debt arose when the note subsequently of the other to a third person as one became due and the third party failed of indemnity, and the cause of action to keep his promise, and not at the against the promisor and in favor of subsequent date when the maker was the promisee as arising only when compelled to pay the note in full; the latter paid the debt, on failure of that by postponing such payment, for the former to perform the undertakwhich the payee could look only to ing. the maker of the note, the latter could It was held also in Enos v. Andernot prevent the operation of the Stat- son (1907) 40 Colo. 395, 15 L.R.A. ute of Limitations upon the promise (N.S.) 1087, 93 Pac. 475, that where which the third party had made to one sold property under an agreement him.

with the purchaser that the latter And where a member of a firm sold would pay an indebtedness of the his interest therein to the other part- seller to a third person, which the ners, who agreed to pay the partner- seller was subsequently compelled to ship obligations, but the retiring pay, the Statute of Limitations did partner was subsequently held liable not begin to run against the seller on a note of the firm, and the judg- in favor of the purchaser until the ment rendered against him on this former had been compelled to pay the not was, more than two years there- debt. after, affirmed, and execution was And in Peterson v. Abbe (1920) 234 thereupon issued and his property Mass. 467, 125 N. E. 611, where a sold to satisfy the judgment, it was grantee of mortgaged property by the held in Rowsey v. Lynch (1876) 61 terms of the deed assumed and agreed Mo. 560, that the undertaking of the to pay the mortgages thereon and to remaining partners was not merely hold the grantor harmless, the court one of indemnity of the retiring part- held that the agreement was a conner, in which case a cause of action tract of indemnity, and that, if it were against them in favor of the latter conceded that the grantor might have would have accrued on the sale of brought suit against the grantee at his property, but was a promise to any time after the mortgages were pay a debt for which he was liable due and remained unpaid, yet he had and for which a right of action ac- the option to rely on the grantee's crued to him on their failure to make undertaking of indemnity, and until payment, which, at least, was not at obliged to make payment the statute any later date than the obtaining of did not run against him, in favor of the judgment.

the grantee.


So, the cause of action was said tee's sale, which deprived the plainin Poe v. Dixon (1899) 60 Ohio St. tiff of her remaining lot. This con124, 71 Am. St. Rep. 713, 54 N. E. 86, clusion was reaffirmed on a later apto accrue at the time the grantor peal in (1912) Tex. Civ. App. paid the debt, where the grantee, who 142 S. W. 999. It appears that in had assumed, as a part of the pur- this case the action would have been chase price of lands the payment of barred had the court held that the a mortgage thereon, and, having

and, having grantor's right of action against the failed to comply with his agreement, grantee accrued on the latter's failure the grantor was compelled to pay a to pay the mortgage notes when due. deficiency of the mortgage debt aris- And where land subject to ing on foreclosure, and brought an vendor's lien was conveyed to an asaction against the grantee to recover sociation, which in its purchase asthe amount so paid. But it may be sumed payment of the vendor's lien observed that in this instance no ques- note, it was held in Bexar Bldg. & L. tion was presented as to whether the Asso. v. Newman (1893) Tex. Civ. cause of action might have accrued App. 25 S. W. 461, that no cause at a prior date than the payment, the of action against the association and action being barred in any event by in favor of the grantor arose, until limitations, if, as the court held, the the latter had suffered damages by statute applicable to actions on an reason of the nonpayment of the note implied promise was the proper one by the association, and that in this to be invoked.

instance the statute had not run in Also, where the purchaser of one of favor of the grantee. two lots which were subject to a The annotation does not include mortgage agreed to pay the mortgage cases not involving the question of debt, which he failed to do, and both the Statute of Limitations, but prelots were sold to satisfy the debt, it senting the question merely of the was held in Gregory v. Green (1911) necessity of payment before recovery

Tex. Civ. App. -, 133 S. W. 481, by a debtor against one who has that the grantor's right of action assumed or agreed to pay the indebtagainst the grantee for breach of the

edness, but has failed to do so. See, contract did not accrue until the sale

for example, Meyer v. Parsons (1900) of the property, and that the claim

129 Cal. 653, 62 Pac. 216; Thomas was not, therefore, barred by the

v. Richards (1906) 124 Ga. 942, 53 Statute of Limitations. The court said that the defendant's undertaking

S. E. 400; Stokes v. Robertson (1915) was to pay off the notes and leave

143 Ga. 721, 85 S. E. 895; Trice v. the plaintiff's other lot clear, and that

Yoeman (1898) 8 Kan. App. 537, 54 this contract was not breached in such Pac. 288; Hyde v. Kirkpatrick (1915) manner that the plaintiff could main- 78 Or. 466, 153 Pac. 41, 488; Dayton tain an action against the defendant v. Gunnison (1848) 9 Pa. 347. (the grantee) thereon, until the trus

R. E. H.



Alabama Supreme Court - April 27, 1922.

(207 Ala. 527, 93 So. 416.)

Bills and notes - liability of one cashing check on forged indorsement.

1. One cashing a check on a forged indorsement and collecting it from the drawee must account to the true owner for the money received.

[See note on this question beginning on page 1068.]


Assumpsit - favored by courts.

an action for money had and received . 2. Assumpsit is an action equitable although the former had no knowledge in character, liberal in form, and of the latter. greatly favored by the courts as [See 2 R. C. L. 778; 1 R. C. L. Supp. remedy.

624; 4 R. C. L. Supp. 123.] - when lies.

Bills and notes right of true owner 3. Assumpsit will lie whenever the

to maintain action. circumstances are such that the law 6. One cashing a check on a forged ex debito justitiæ will imply a prom- indorsement and collecting it from the ise.

drawee cannot defeat recovery by the [See 2 R. C. L. 745; 1 R. C. L. Supp.

one for whom it was intended, but in617.]

to whose possession it never came, on -- necessity of privity.

the theory that he had not established 4. No privity between the parties is his ownership. necessary to sustain an action of assumpsit.

Assumpsit to recover proceeds of [See 2 R. C. L. 780; 1 R. C. L. Supp.

check. 626.]

7. Assumpsit lies in favor of one for

when – money had and received

whom a check was intended which was lies.

misappropriated without reaching 5. If one has money which ex equo

him, against the one who cashed it on et bono belongs to another, the latter a forged indorsement and collected it may, in the absence of contract modi- from the drawee, to recover the profying the general liability, maintain ceeds so collected.

APPEAL by plaintiff from a judgment of the Circuit Court for Jefferson County (Aird, J.) in favor of defendants in an action brought to recover the proceeds of a check cashed on a forged indorsement and collected by defendants from the drawee bank. Reversed.

The facts are stated in the opinion of the court.

Mr. William Henry Beatty, Jr., for judgment for defendants, after appellant.

which this appeal. Messrs. Leader & Ullman and David

Reason why the judgment should R. Solomon for appellee.

be sustained is expressed in several Sayre, J., delivered the opinion of forms, but may be fairly stated as the court:

follows: Without delivery of the The Illinois Central Railroad check to appellant or his agent, apCompany in its office in Chicago pre- pellant acquired no title, and cannot pared a check on a bank in St. Louis, maintain his action. payable to appellant, and forwarded Assumpsit is an action of an equiit to its disbursing agent at Bir- table character, liberal in form, and mingham to be delivered to appel- greatly favored by

Assumpsitlant in payment for services per- the courts as a rem- favored by formed by him for the company. In edy. Westmoreland courts. some way unknown to the company v. Davis, 1 Ala. 299. No agreement or its employee, appellant, but prob- is necessary; assumpsit will lie ably by larceny or fraudulent imper- wherever the circumstances are such sonation of the payee, plaintiff, the that the law, ex check fell into the hands of a stran- debito justitiæ, will

-when lles. ger, an impostor, who forged appel imply

imply a promise. lant's indorsement, and passed the Nor is any privity in fact between check to appellees in payment for the parties necesmerchandise. Appellees collected


necessity of Where one

privity. the money from the bank in St. man has

money Louis, and appellant sued appellees which ex equo et bono belongs to in common assumpsit for money had another, if there be no contract and received. The trial court gave modifying the general liability, the

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