Burrus v. Cook

• Decision Date: 25 November 1908
• Citation: 215 Mo. 496,114 S.W. 1065
• Parties: BURRUS v. COOK et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Missouri Supreme Court

114 S.W. 1065

215 Mo. 496

BURRUS v. COOK et al.^†

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. LIMITATION OF ACTIONS (§ 180) — PLEADING — DEMURRER RAISING DEFENSE.

Whenever the face of the petition discloses that the bar of limitations has become complete, a demurrer stating that ground is proper.

2. LIMITATION OF ACTIONS (§ 177) — PLEADING.

Where the cause of action is such that the bar of limitations may be obviated by some exception in the statute, the facts stated in the petition should show the exception.

3. LIMITATION OF ACTIONS (§ 49) — PRINCIPAL AND SURETY.

The period of limitation of an action, whether against the principal or co-surety, in a case of payment by a surety, of more than his share, begins to run from the day of the surety's payment.

4. EQUITY (§ 87) — LACHES.

Equity follows the law, and applies the same period of limitations.

5. SUBROGATION (§ 7) — PAYMENT OF DEBT BY SURETY — EFFECT.

So far as necessary to protect the rights of the surety, a payment of the debt by the surety does not extinguish it, but it still subsists, with its liens and priorities, to enable him to recover of the principal as well as to compel contribution by co-sureties, or to avail himself of any securities or collaterals turned out by the principal.

6. SUBROGATION (§ 41) — LIMITATION OF ACTION — ACTION BY SURETY PAYING DEBT.

Under the general law and the statute a surety, on payment of the debt, has a right to the instrument on which he is surety, with all the rights, securities, and liens which attach to it, but he must assert those rights within five years after such payment.

7. SUBROGATION (§ 7) — PRINCIPAL AND SURETY.

A surety, on payment of the debt, does not become, ipso facto, subrogated to the rights of the creditors, but only acquires a right to such subrogation.

8. PRINCIPAL AND SURETY (§ 196) — RIGHTS OF SURETY COMPROMISING DEBT.

A surety compromising a note at less than its face can recover of a co-surety no more than he has paid for him.

9. PRINCIPAL AND SURETY (§ 196) — PAYMENT BY SURETY — RECOVERY — INTEREST.

Though the indebtedness for which one is surety draws the highest legal interest, the surety, in the absence of a statute, may recover only

the legal rate on the sum he pays from the time of payment.

10. SUBROGATION (§ 7) — PAYMENT OF DEBT BY SURETY — EFFECT.

A surety, on paying the indebtedness, may, when necessary to his reimbursement, become in equity the assignee of the note or judgment evidencing such indebtedness, but equity will not make an assignment where the sole object is to avoid the statute of limitations.

11. SUBROGATION (§ 41) — LIMITATION OF ACTION — ACTION AGAINST CO-SURETY.

That a surety on a note, on paying a judgment thereon, took an assignment of the judgment, did not affect the limitation period as respected an action against a co-surety for contribution.

12. LIMITATION OF ACTIONS (§ 99) — PRINCIPAL AND SURETY — ACTION AGAINST CO-SURETY.

Rev. St. 1899, § 4290 (Ann. St. 1906, p. 2359), providing that, if a party by improper conduct prevents the commencement of an action, it may be begun within the proper period of limitation after the commencement of the action shall cease to be so prevented, was not applicable where a surety on a note prior to judgment against the maker and sureties made himself insolvent by a fraudulent transfer of his land, such conduct not preventing the beginning of an action against him for contribution by a co-surety paying the judgment, but only going to defeat an execution on a judgment which might be obtained in such action.

13. SUBROGATION (§ 41) — LIMITATION OF ACTION — ACTION AGAINST CO-SURETY.

An action against a surety for...