Furst v. Building & L. Ass'n

Citations

• 128 Pa. 183
• 18 A. 341
• 1889 Pa. LEXIS 781

Syllabus

<p>1. If, in a suit brought in the name of X, it becomes apparent that X has no right of. action in his own name, an amendment making P (the proper party to sue) the legal plaintiff and X the use plaintiff be applied for after P’s right'of action is barred by the statute of limitations, such amendment will not be allowed to affect defendant’s right to plead the statute.</p> <p>2. Upon an agreement to indemnify a mortgagor against liability upon a mortgage, the statute of limitations begins to run as soon as the mortgage debt becomes due, and, in an action brought thereon more than six years thereafter, the statute is a complete defence unless the evidence disclose something to take the case out of it.</p> <p>(a) In an action by P to the use of X, a building association, brought December 12, 1885, against D., another association, upon an unsealed agreement, dated June 16, 1877, and given by D to P, by which D undertook to assume and indemnify P against a certain mortgage given by him to X, the following facts were shown in the plaintiff’s case in chief:</p> <p>(5) The last instalment of the mortgage matured September 30, 1878. On October 1, 1880, R, the secretary of both X and D, delivered to the solicitor of X, for collection, a check drawn by P, payable to “R, Sec. Building Ass’n,” dated June 16, 1877, and the same day given by P to R as part of the consideration of the indemnifying paper received by him from D. This check was never presented for payment.</p> <p>(c) About six weeks after its date, the bank on which the check was drawn became insolvent. On October 4, 1880, P collected from the receiver of the bank a dividend of $91.10 upon his deposit account, and paid the same over to X’s solicitor on account of this check. On March 14, 1882, he made a like payment of $22.38 out of a similar dividend.</p> <p>3. Upon these facts, the plaintiff was properly nonsuited, as the action was barred by the statute of limitations; and, there being no evidence that R was auth