Loewenthal v. Coonan

VAN DYKE, J.

This action was brought to foreclose four several mortgages alleged to have been given by the defendant J. F. Coonan to the plaintiff, as security or indemnity to the plaintiff by reason of the said plaintiff having signed certain promissory notes as surety for said defendant Coonan. The appellant Mary Coonan and several others were made defendants, on the ground, as alleged in the complaint, that they claimed some interest in the premises covered by the mortgages, but which interest, if any, was subsequent and subject to said mortgages. From the judgment in favor of plaintiff the defendant Mary Coonan appeals.

The principal ground upon which appellant relies for a reversal of the judgment is, that the action is barred by the statute of limitations. The notes on which the plaintiff was a co-maker with the defendant J. F. Coonan are dated at different periods, from September 1, 1892, to March 11, 1895, being for different sums, and made payable to different parties. The court finds that, for the purpose of securing the plaintiff from loss by reason of his signing the said, several promissory notes, and as an indemnity against loss therefor, as surety for the said J. F. Coonan, the said J. F. Coonan, between the 8th of March, 1890, and the 10th of May, 1894, executed and delivered to the plaintiff the four, several mortgages set out in the complaint, two in the form of mortgages, and two in the form of deeds, but intended as mortgages, by and between the said parties thereto, and as continuing securities, not only for such promissory notes as had been already signed by the plaintiff as surety as aforesaid, but such as plaintiff might thereafter sign at the request of said J. F. Coonan. The court also found that the second mortgage, by an agreement between the plaintiff, as mortgagee, and defendant J. F. Coonan, the mortgagor, was superseded by the third mortgage, bearing date July 8, 1893, in form a deed, but intended as a mortgage, as before stated. A judgment of foreclosure was decreed as to the other three mortgages,—to wit, the first, a mortgage in form, and the third

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and fourth, in form deeds, but intended as mortgages in fact, as aforesaid. The plaintiff has not appealed, and therefore the second mortgage may be considered as eliminated from the case.

The appellant, in support of the contention as to the statute of limitations, seems to have an entire misconception of the nature of the action. The suit by the plaintiff is not upon the notes. He was a maker, with the defendant J. F. Coonan, of the notes, and they were made payable to other parties. The plaintiff’s cause of action springs from the fact, as alleged and found, that about the 28th of August, 1897, he, as surety for the defendant Coonan, paid and took up the notes which he had signed as maker with said defendant. His right of action accrued from the time he paid or took up the notes, and not from the date of the notes, and the statute of limitations would not commence to run as against him until his cause of action accrued. In