Foote v. O'Roork

Texas Supreme Court

Foote v. O'Roork

59 Tex. 215, 1883 Tex. LEXIS 134

CourtTexas Supreme Court

DecidedApril 10, 1883

DocketCase No. 3586

StatusPublished

Cited by16 cases

This text of 59 Tex. 215 (Foote v. O'Roork) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foote v. O'Roork, 59 Tex. 215, 1883 Tex. LEXIS 134 (Tex. 1883).

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Opinion

Watts, J. Com. App.—

Limitation did not commence to run against the note, upon which this suit is founded, until March 31, 1870, and as the suit was commenced by the plaintiffs before the expiration of four veal's from that time, it is very clear that they are not barred. But the intervenors came into the ease after the expiration of four years from March 31, 1870, and it is claimed that as to them the note is barred. It would seem that the suit by the plaintiffs would inure to the benefit of the true owners of the note, and would as to them suspend the running of the statute. The intervenors do not assert a new cause of action, but only claim an interest in the cause of action already asserted against the defendant. This is the effect of the rule announced in Field v. Gautier, 8 Tex., 77. See, also, Hanna v. Drennan, Tex. Law Jour., vol. 4, p. 728.

So long as the debt which the mortgage was given to secure is not barred, the mortgage is unaffected by limitation. Here the fact that the mortgage was not asserted until after the lapse of four years from March 31, 1870, constitutes no valid objection to the foreclosure of the same.

The other questions urged by appellant, and concerning which an expression of an opinion is requested, since this appeal was taken, have been settled in Burgess v. Millican, 50 Tex., 397, adversely to the view presented by the appellant.

As there is no error in the judgment it ought to be affirmed.

Affirmed.

[Opinion approved April 10, 1883.]

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Watts, J. Com. App.—

Limitation did not commence to run against the note, upon which this suit is founded, until March 31, 1870, and as the suit was commenced by the plaintiffs before the expiration of four veal's from that time, it is very clear that they are not barred. But the intervenors came into the ease after the expiration of four years from March 31, 1870, and it is claimed that as to them the note is barred. It would seem that the suit by the plaintiffs would inure to the benefit of the true owners of the note, and would as to them suspend the running of the statute. The intervenors do not assert a new cause of action, but only claim an interest in the cause of action already asserted against the defendant. This is the effect of the rule announced in Field v. Gautier, 8 Tex., 77. See, also, Hanna v. Drennan, Tex. Law Jour., vol. 4, p. 728.

So long as the debt which the mortgage was given to secure is not barred, the mortgage is unaffected by limitation. Here the fact that the mortgage was not asserted until after the lapse of four years from March 31, 1870, constitutes no valid objection to the foreclosure of the same.

The other questions urged by appellant, and concerning which an expression of an opinion is requested, since this appeal was taken, have been settled in Burgess v. Millican, 50 Tex., 397, adversely to the view presented by the appellant.

As there is no error in the judgment it ought to be affirmed.

Affirmed.

[Opinion approved April 10, 1883.]

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59 Tex. 215, 1883 Tex. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foote-v-oroork-tex-1883.

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