The opinion
On Motion for Rehearing.
HURST, J.
(specially concurring on rehearing). I concur in the conclusion, but am doubtful as to the reasoning of the majority opinion, which is based upon the assumption that the claim of Hall against Doughty is barred by the statute of limitations. It is my view that the petition does not show that the claim is barred, and that the right of Hall to get a money judgment accrues only when Hall shall have paid the debt or any part thereof. Under our decisions, as between Hall and Doughty, the latter became the principal debtor and Hall his surety. Beardsley v. Stephens, 134 Okla. 243 , 273 P. 240 ; Page v. Hinchee, 174 Okla. 537 , 51 P. 2d 487 . The petition being silent as to whether Hall could have maintained an action against Doughty for indemnity by reason of the provisions of 12 O. S. 1941 § 1108, we must assume that the right of Hall to secure a money judgment (not to compel payment by an equitable proceeding as authorized in 15 O. S. 1941 § 380, and in 12 O. S. 1941 § 1107) against Doughty exists by reason of the provisions of 15 O. S. 1941 § 381, under which the cause of action for reimbursement accrues when and only when Hall shall have paid the mortgage debt or any part thereof. Miller v. National Surety Co., 159 Okla.
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76, 14 P. 2d 228 . Since it seems clear that the petition does not disclose on its face that Hall’s claim against Doughty for reimbursement is barred, it follows that the petition does not disclose that the right of the Commissioners of the Land Office to a money judgment against Doughty is barred, and the demurrer to the petition should have been overruled.
I think there is a very serious question as to whether .the right of the Commissioners of the Land Office to recover a money judgment against Doughty is superior to the right of Doughty, and if Hall’s claim for reimbursement against Doughty should be barred by limitations or laches, or lost by reason of any other fact, the right of the state, which is derivative only, would probably likewise be barred or lost. See Page v. Hinchee, above; 41 C. J. 754; 19 R. C. L. 378; 37 Am. Jur. 335 , § 1016; 21 A. L. R. at 488, annotation. I doubt if the state’s right is greater than the right of any other mortgagee would be under like circumstances.