This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The conduct of the defendant, which is generally selected by statute as that which prevents limitations from running in his favor is his absence from the state. If he is absent from the state at the time when the cause of action accrues against him, the statute of limitations does not begin running in his favor until his return to the state.1 The statute which provides for the absence of the defendant from the state, usually provides that the time during which he is absent from the state shall not be counted in determining whether limitations has run or not. Under such statutes if the defendant is within the state when the cause of action accrues, and subsequently removes from the state, the time during which he is absent from the state must be deducted from the entire period for the purpose of determining whether limitations has run or not.2 Under some statutes the absence and return of the debtor makes a new point of time from which limitations is to run.3 Absence from the state includes cases where the defendant resides elsewhere when the- cause of action accrues and moves into the state at a later time. Limitations runs in such cases from the time that he moves into the state.4 So if he has never been a resident of the state at the time that the cause of action against him accrues, limitations does not run in his favor until he moves into the state.5 A note was given in New Hampshire. After it fell due, but before it was there barred by limitations, the maker moved to South Carolina.
5 Williams v. Long, 130 Cal. 58;
80 Am. St. Rep. 68; 62 Pac. 264.
6 St. Paul Trust Co. v. Sargent,
44 Minn. 449; 47 N. W. 51; Riner v. Riner, 166 Pa. St. 617; 45 Am. St. Rep. 693; 31 Atl. 347. Contra, Hi-bernia Savings, etc., Society v. Conlin, 67 Cal. 178; 7 Pac. 477.
7 Riner v. Riner, 166 Pa. St. 617;
45 Am. St. Rep. 693; 31 Atl. 347.
8 Gauser v. Gauser, 83 Minn. 199; 85 Am. St. Rep. 461; 86 N. W. 18; Osborne v. Lindstrom, 9 N. D. 1; 81 Am. St. Rep. 516; 46 L. R. A. 715;
81 N. W. 72; Spokane v. Prescott,
19 Wash. 418; 67 Am. St. Rep. 733; 53 Pac. 661.
9 Osborne v. Lindstrom, 9 N. D. 1; 81 Am. St. Rep. 516; 46 L. R. A. 715; 81 N. W. 72.
10 Gauser v. Gauser, 83 Minn. 199; 85 Am. St. Rep. 461; 86 X. W. 18.
11 Casey v. Gibbons, 136 Cal. 368; 68 Pac. 1032; Willis v. Sntton, 116 Ga. 283; 42 S. E. 526; Groesbeck v. Crow. 91 Tex. 74; 40 S. W. 1028.
12 Farris v. Haskins (Ky.). 63 S. W. 577; Wbiteside v. Catching, 19 Mont. 394; 48 Pac. 747.
1 Stone v. Hammel, 83 Cal. 547; 17 Am. St. Hep. 272; 8 L. R. A. 425; 23 Pac. 703; Wood v. Bissell, 108 Ind. 229; 9 N. E. 425.
2 Williams v. Loan Association, 131 N. C. 267; 42 S. E. 607; Stanley v. Stanley, 47 O. S. 225; 21 Am. St. Rep. 806; 8 L. R. A. 333; 24 N. E. 493; Wilson v. Daggett, 88 Tex. 375; 53 Am. St. Rep. 766; 31 S. W. 618; Bignold v. Carr, 24 Wash. 413; 64 Pac. 519.
3 Cottrell v. Kenney, 25 R. I. 99; 54 Atl. 1010.
4 Steen v. Swadley, 126 Ala. 616; 28 So. 620; Wetmore v. Marsh, 81 la. 677; 47 N. W. 1021; Broadway National Bank v. Baker, 176 Mass.
294; 57 N. E. 603; Freundt v. Hahn, 24 Wash. 8; 85 Am. St. Rep. 939; 63 Pac. 1107; Adkins v. Loucks, 107 Wis. 587; 83 N. W. 934.
5 Mason v. Mfg. Co., 81 Md. 446; 48 Am. St. Rep. 524; 29 L. R. A. 273; 32 Atl. 311; Jordan v. Se-combe, 33 Minn. 220; 22 N. W. 383; Ruggles v. Keeler, 3 Johns. (N~. Y.) 263; 3 Am. Dec. 482; Burrows v. French, 34 S. C. 165; 27 Am. St. Rep. 811; 13 S. E. 355; McConnell v. Spicker, 15 S. D. 98; 87 N. W. 574; Kempe v. Bader, 86 Tenn. 189; 6 S. W. 126; overruling Barbour v. Erwin, 14 Lea (Tenn.) 716.
Suit was there brought agaiust him after the statutory period fixed by the South Carolina statute counting from the maturity of the note, but within the period counting from the time that the maker came to South Carolina. It was held that under a section of the statute which prevents limitations from running against a maker who is out of the state when the cause of action accrues until his return, the action was brought in time.6 So a statute providing that limitations shall not begin to run if the defendant is "absent from the state when the cause accrues," applies to an action against a foreign corporation, although the cause of action arose in another state.7 Some courts take a different view and hold that the statute as to absence from the state does not apply to one once a citizen who removes from the state before the " accrual or birth of the cause of action."8 In these states there is some conflict of authority as to whether one who is a resident of the state at the time of the " birth " of the cause of action, but who removes before the maturity of the cause of action is within the exception of the statute.9 The fact that the defendant makes " casual temporary visits" to the state,10 or that he returns to the state as a traveling salesman, being in the state several months during each year, but not staying at any one place more than a day or so,11 does not make limitations run in his favor. Within the meaning of a statute which provides that if the defendant shall " depart from and reside outside of the state," limitations shall not run against him, a change of residence is necessary.12 Accordingly, if a congressman living within the state goes to Washington with his family, but leaves his house in charge of his servants, he is not residing outside of the state so as to interrupt the running of the statute of limitations in his favor.13 A claim against one of two or more joint debtors is barred by limitations if such joint debtor is a resident, though one of the other joint debtors was absent from the state.14 A claim against a partnership is not relieved from the operation of the statute by the absence of one partner, the other being a resident.15 A claim against a surety, on which an action can be brought in the absence of the principal debtor, is barred by limitations if the surety is a resident though the principal debtor is without the state.16 A claim against the principal debtor was barred by limitations. A surety of the principal debtor who had been absent from the state and in whose favor limitations had not run, gave his note on his return to a co-surety for his share of the total amount of the principal's debt paid by such co-surety. This was held not to give to such surety any cause of action against the principal debtor.17 The statutory provision, that time during which a defendant is absent from the state shall not be counted in determining whether the period of limitations has elapsed, applies to cases where a non-resident has property within the state, which might be taken in some proceeding in rein.16 Hence in actions to foreclose a mortgage,19 or other actions affecting real estate,20 limitations does not run during the absence of the defendant from the state, even though service by publication might be obtained. The creditor has a right to personal service and a personal judgment. Furthermore, whatever it may have been wise for the legislature to enact, the courts have no power, under a statute which provides that limitations shall not run during the absence of defendant from the state, to create thereto the exception of cases where some relief might have been had on constructive service. An exception to this rule is generally recognized in cases where the right of action is exclusively in rem, and personal service upon the non-resident could have no effect upon the progress of the litigation. So the absence of a mortgagor who has conveyed to a resident grantee is held not to stop limitations as to the mortgage.21 So the absence of a grantee of mortgaged realty who is not personally liable for the mortgage debt has been held not to stop limitations.22 On the other hand, if the mortgagor is personally liable for the debt and has conveved to a resident by an unrecorded deed of which the mortgagee has no notice, his absence stops limitations from running.23 In some states by express provision of the statute, limitations runs as to action's in rem, even if the defendant is absent.24 Thus the absence of an adverse possessor who leaves a tenant or agent in possession does not prevent limitations from running in his favor,25 So under such statute limitations runs against foreclosure even if the mortgagor is absent.26 So under other statutes limitations runs if defendant left in the state property subject to attachment sufficient to satisfy plaintiff's claims and plaintiff knew of such fact.27 The clause of the statute providing that time during which a party is absent from the state after a cause of action accrues against him, shall not be taken as any part of the time limited applies where the maker and payee, who were husband and wife, left the state together and resided in another state for a considerable period of time, and then returned to the state where the note in question was originally given.28
6 Burrows v. French, 34 S. C. 165; 27 Am. St. Rep. 811; 13 S. E. 355. See to the same effect, Mc-Cormell v. Spicker, 15 S. D. 98; 87 N. W. 574.
7 Mason v. Mfg. Co., 81 Md. 446; 48 Am. St. Rep. 524; 29 L. R. A. 273; 32 Atl. 311.
8 Fisher v. Hartley, 48 W. Va. 339; 86 Am. St. Rep. 39; 54 L. R. A. 215; 37 S. E. 578. So Walsh v. Schilling, 33 W. Va. 108; 10 S. E. 54.
9 That he is within the exception.
Hefflebower v. Detrick, 27 W. Va. 16.
10 Connecticut, etc., Co. v. Wead, 172 N". Y. 497; 92 Am. St. Rep. 756; 65 N". E. 261.
11 Weille v. Levy, 74 Miss. 34; 60 Am. St. Rep. 500; 20 So. 3.
12 Barney v. Oelrichs. 138 U. S. 529; Pells v. Snell. 130 111. 379; 23 N. E. 117; reversing 31 111. App. 158; Slocum v. Riley. 145 Mass. 370; 14 N. E. 174; Marx v. Kilpat-rick, 25 Neb. 107; 41 N. W. Ill; Farr v. Durant, 90 Wis. 341; 63 N. W. 274.
13 Kerwin v. Sabin, 50 Minn. 320; 36 Am. St. Rep. 645; 17 L. R. A. 225; 52 N. W. 642. Contra, Lane v. Bank, 6 Kan. 74.
14 Mozingo v. Ross, 150 Ind. 688; 65 Am. St. Rep. 387; 41 L. R. A. 612; 50 N. E. 867; Denny v. Smith, 18 N. Y. 567 (overruling Brown v. Delafield, 1 Den. (N. Y.) 445).
15 Lovett's Administrator v. Perry. 98 Va. 604; 37 S. E. 33.
16 Mozingo v. Ross, 150 Ind. 688; 65 Am. St. Rep. 387; 41 L. R. A. 612; 50 N. E. 867: Davis v. Clark. 58 Kan. 454: 40 Pac. 665.
17 Stone v. Hammel, 83 Cal. 547;
17 Am. St. Rep. 272; 8 L. R. A. 425; 23 Pac. 703.
18 Grist v. Williams, 111 N. C. 53; 32 Am. St. Rep. 782; 15 S. E. 889. Contra, Zoll v. Carnahan, 83 Mo. 35; Anderson v. Baxter, 4 Or. 105.
19 Hibernian Banking Association v. Bank. 157 111. 524; 41 N. E. 919; Brown v. Roekhold, 49 la. 282; Kulp v. Kulp, 51 Kan. 341; 21 L. R. A. 550; 32 Pae. 1118.
20 Applegate v. Applegate, 107 la. 312; 78 N. W. 34: Newlove v. Pen-nock, 123 Mich. 260; 82 N. W. 54.
21 Filippini v. Trobock, 134 Cal. 441; 66 Pac. 587; reversing, 62 Pac. 1066.
22 Hogaboom v. Flower, 67 Kan. 41; 72 Pac. 547.
23 Denny v. Palmer. 26 Wash. 469; 90 Am. St. Rep. 766; 67 Pac. 268.
24City of St. Paul v. Chicago, etc.. R. R., 45 Minn. 387; 48 N. W. 17.
25 Omaha, etc., Co. v. Parker, 33 Neb. 775; 29 Am. St. Rep. 506; 51 N. W. 139.
26 Hurley v. Cox, 9 Neb. 230; 2 N. W. 705.
27 Little v. Blunt. 16 Pick. (Mass.) 359.