Callan v. Bodine
| Decision Date | 15 June 1911 |
| Citation | 79 A. 1057,81 N.J.L. 240 |
| Parties | CALLAN v. BODINE. |
| Court | New Jersey Supreme Court |
(syllabus by the Court.
Action by Angele I. Callan against Peter Bodine. Demurrer to rejoinder overruled.
Argued February term, 1911, before GUMMERE, C. J., and REED and TRENCHARD, JJ.
William F. Burke (John Milton, of counsel), for plaintiff.
Albridge C. Smith, Jr., for defendant.
This action was brought to recover the amount of six bonds. The declaration sets up that Peter Bodine, the defendant, on the 1st day of February, 1889, by a certain writing obligatory, sealed with his seal, at the city of New York, held himself bound on each of the six bonds sued on, to one Benner, trustee, in the sum of $500 each, to be paid to the said Benner, trustee, on the 1st day of November, 1890, together with lawful interest thereon. The declaration states that each of the said bonds provided as follows: "This bond is one of a series consisting of 40 bonds in the sum of $500.00 each, amounting in the aggregate to the sum of $20,000, all of even tenor and effect herewith * * * the payment of which principal and interest is secured by a mortgage bearing even date herewith, (upon certain real estate in New Jersey,) which mortgage was executed and delivered by Peter Bodine to the said Charles Benner, Trustee, simultaneously herewith, in trust, for the benefit of the holders of said bonds. * * *" The declaration then shows that the title to each of these bonds has passed from Benner to the plaintiff. To the declaration the defendant has filed a demurrer.
The grounds of the demurrer are substantially two: First, that it appears upon the face of the declaration that the right of action upon the bonds is barred by the statute of limitations; second, that it appears upon the face of the declaration that a mortgage was given of the same date as the bonds, and it does not appear that there has been a foreclosure of the mortgage. In respect to the first ground, it appears upon the face of the declaration that the bonds sued on matured on November 1, 1890, more than 10 years before the beginning of this action. Our statute enacts that every action upon every obligation with a condition for a payment in money shall be sued within 16 years next after the cause of action shall have accrued, and not after. 2 Gen. St. p. 1975, § 6.
In an action at law the defense of a bar of the statute of limitations is not available unless set up by plea. 25 Cyc. p. 1396. The defendant cannot demur to a declaration even when it appears on its face that the limitation prescribed by the statute has expired, for the principal reason that thereby the plaintiff would be deprived of the opportunity of replying that the case was within some of the exceptions of the statute, or any other matter that would prevent the bar from attaching. 13 Enc. PI. & Pr. p. 200. Where the cause of action did not exist at common law, but has been created by statute which fixes a time within which the action must be brought as an essential element of the right to sue, the question of limitation may be raised by demurrer. 25 Cyc. p. 1398. The present action is not created by statute, but existed at common law, and in all...
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...contained in R.S. 2:65-6 and 2, N.J.S.A. is in derogation of the common law and must be strictly construed. Callan v. Bodine, Sup. 1911, 81 N.J.L. 240, at page 243, 79 A. 1057. The legislative trend during the last decade indicates an attempt to protect mortgagors from deficiencies on bonds......
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