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 statute of limitations is generally held to affect the remedy.1 The law of the place where the suit is brought controls, therefore,2 as to the question of the application of such statute.3 Thus the question whether the assumption of a mortgage debt by accepting a deed conveying the mortgaged realty with a clause providing for such assumption is a simple contract or not, for the purpose of determining the period of limitations is controlled by the law of the forum.4 If the statute is held not merely to affect the remedy, but also to extinguish the right, the law of the place controlling the transaction applies, and not the law of the forum.5 If the statute has run where the cause of action is made and to be performed, and its effect is not merely to bar the remedy but to extinguish the right, it is held that the subsequent removal of the debtor to another state where a longer time is given by limitations cannot give to the creditor the right to enforce such contract.6 The theory underlying this last doctrine is that by the running of the statute of limitations a property right has been acquired by the debtor, of which he is not divested by his removal to another state. The difficulty in applying it lies in the fact that as similar statutes are treated sometimes as extinguishing the right and sometimes as barring the remedy, the practical result is often a conflict of judicial opinion and not the recognition of two consistent and distinguishable principles. The fact that the claim has been reduced to judgment in a foreign jurisdiction starts the statutes of limitations to running anew in any state where suit may be brought on such judgment, and makes the time fixed by such statute, expressly or by construction, for suing on foreign judgments, control. It does not, however, prevent the action on such judgment in another state from being barred by such lapse of time as is fixed by the jurisdiction of the forum, even if such judgment would not be barred in the state in which it was rendered.7 Accordingly, the revivor of a judgment in the state in which it was rendered by proceedings in which no personal service was had on the judgment debtor does not prevent limitations from running against such judgment in another state.8 Statutes of many states provide that if a cause of action is barred where it arose it shall be barred in an action in the courts of the state in which such statute is in force. While such statutes expressly adopt the law of the state where the cause of action arose, they do not adopt the law of another state where suit might have been brought upon such cause of action.9 Thus a note was given in Maine where both maker and payee were domiciled and was there payable. Before suit was there barred, the maker removed to New York, and remained there for so long a period that limitations ran in his favor at New York law. By the law of Maine, such note was not barred, since the time of the defendant's absence from the state did not by statute count in the running of the statute. Accordingly, it was held that an action could be brought on such note in Massachusetts.10 So such statute does not apply where the defendant is a non-resident of the state where the cause of action arose, as the right of action is not barred there.11 Under such statute, a cause of action not barred in the state where suit is brought is not barred if the creditor can enforce it by any form of action or procedure there given to him. Thus if a judgment is so barred by lapse of time that it can in no way be enforced where rendered, it cannot be enforced in another state where a statute of this type is in force; but if, though dormant, it could be revived, an action can be brought thereon in another state if not barred by the laws of such state.12
3 See Sec. 1722. As to contracts relating to realty, see Sec. 1723.
4 See Sec. 94.
5 Third National Bank v. Steel, 129 Mich. 434; 64 L. R. A. 119; 88 N. W. 1050.
1 See Sec. 1190.
2 Baxter National Bank v. Talbot, 154 Mass. 213; 13 L. R. A. 52; 28 N. E. 163.
3 Baxter National Bank v. Talbot, 154 Mass. 213; 13 L. R. A. 52; 28 N. E. 163.
1 See Sec. 1647, 1648.
2 See Sec. 1733.
3 Willard v. Wood, 164 U. S. 502;
United States Bank v. Donnally, 8 Pet. (U. S.) 361; Hargadine-Mc-Kittrick Dry Goods Co. v. Hudson, 122 Fed. 232; 58 C. C. A. 596; Burgett v. Williford, 56 Ark. 187; 35 Am. St. Rep. 96; 19 S. W. 750; Labatt v. Smith, 83 Ky. 599; Bulger v. Roche, 11 Pick. (Mass.) 36; 22 Am. Dec. 359; Home Life Ins. Co. v. Elwell, 111 Mich. 689; 70 N. W. 334; Wright v. Mordaunt, 77 Miss. 537; 78 Am. St. Rep. 536; 27 So. 640; New York Life Ins. Co. v. Aitkin, 125 N. Y. 660; 26 N. E. 732; Barbour v. Erwin, 14 Lea (Tenn.) 716.
4 Willard v. Wood. 164 U. S. 502. (Held to be a simple contract.)
5 Davis v. Mills, 194 U. S. 451.
6 Rathbone v. Coe. 6 Dak. 91; 50 N. W. 620; Lamberton v. Grant, 94 Me. 508; 80 Am. St. Rep. 415; 48 Atl. 127; Berkley v. Tootle, 163 Mo. 584; 85 Am. St. Rep. 587; 63 S. W.
681; Eingartner v. Steel Co., 103 Wis. 373; 74 Am. St. Rep. 871; 79 N. W. 433.
7 Ambler v. Whipple, 139 111. 311; 32 Am. St. Rep. 202; 28 N. E. 841; Rice v. Moore, 48 Kan. 590; 30 Am. St. Rep. 318; 16 L. R. A. 198; 30 Pac. 10.