Brittain v. Lankford

Opinion off the coijbt by JUDGE GUFFY Affirming. It appears from this record that appellant Brittain as principal, and appellee, B. B. Lankford, as his surety, became indebted to one W. T. Hall, administrator, in the sum of $90, and at the January term, 1867, of the Harlan quarterly court, said Hall obtained judgment against Brittain and Lankford for said debt, and on the 1st of February, 1867, Brittain paid on said judgment $29, and in September, 1871, Lankford paid the residue of said judgment, and took an assignment from Hall thereon to himself. In September, 1871, or January, 1872, Brittain, then being a resident of Kentucky, left the State, and went to the State of Virginia, where he remained until about 1885 or 1886, and then returned to Kentucky. On September 17, 1889, an execution was issued on said judgment flor the benefit ..of Lankford, and was returned, “No property found.” A transcript of the proceedings of the quarterly court was filed in the circuit court clerk’s office, and such proceedings were had that an execution was issued from the clerk’is office of the circuit court, and levied upon certain land as the property of Brittain, which was sold, and purchased by appellee, who afterwards obtained a sheriff’s deed therefor, and thereafter instituted proceedings, as provided by law, to obtain possession of the land so purchased by him. After various motions and orders were — 488 — made, a trial was had, and a judgment entered in favor of Lankford for possession of the land in controversy, and from that judgment this appeal is prosecuted. The chief defense relied on by appellant is the statute of limitations. It is evident that the other defenses set up were insufficient. JBut it is earnestly, and with some plausibility, urged that appellee’s right to enforce the judgment was barred by the statute of limitations. It is evident from the evidence, as well as from the agreed state of facts, that no execution, was issued upon the judgment until more than fifteen years after its rendition and after its payment by Lankford. It is also evident that Brittain removed from the State of Kentucky after the payment by Lankford, and remained a non-resident of Kentucky until_ at least about 1884 or 1886, so that if his absence from the 'State is to be deducted from the fifteen-year statute, which as to residents of the State would bar appellee’s right to have an execution, then, in that event, the right of Lankford to have execution issued and collect the debt must be unquestioned. It is, however, insisted for appellant that the statute of limitations applies only to actions, or, in other words, suits, to obtain judgment and force the collection of debts or demands against the defendant, and the reason for the exemptions in the statute of limitations is because the ■removal of the debtor obstructs the prosecution of the laction. It is argued that the removal of a debtor in no wise obstructed or hindered the appellee in,obtaining an execution upon the judgment and collecting the same, if any property could be found subject to levy, and that it therefore follows that the delay of fifteen year® in causing an execution to issue is and was an absolute bar to appellee’s — 489 — right to have the execution issued, and that, being illegally issued, the levy and sale thereunder were absolutely void, and passed no title to the purchaser. It is insisted for appellee that the removal of Brittain suspended the statute of limitations, and that the judgment remained in full force against him, or, in other words, that the period of his absence from the State should not be counted as any part of the fifteen years which would bar the judgment. It is conceded that the precise question involved in this case has never been decided by this court. It therefore follows that this question must be decided with, reference to the statutes and such decisions as may shed some light upon the question involved herein. The case of Davidson v. Simmons, 11 Bush, 330, is cited by appellee. In that case it appears that Simmons recovered a judgment against Davidson in 1848 in Warren county, where Davidson then resided, upon which an execution was issued in the same year, and returned, “No property found.” In 184-9, Davidson removed from the State, and continued absent therefrom ever since. In 1873, Simmons brought suit in equity to enforce a satisfaction of the judgment and sued out an .attachment, and levied it upon the interest of Davidson in the estate of his father, who had recently died in Warren county. Davidson interposed a plea of the statute of limitations, and insisted that, as there had been no execution upon the judgment for more than fifteen years from the date of the last execution before the institution of the suit, the judgment was barred by the statute, and that the suit could not be maintained. This court, however, held that the period of Davidson’s absence from the State should be deducted from the fifteen years; or, in other words, — 490 — tliat the statute did not run in defendant’s favor during his absence from the State, and therefore Simmons 'was entitled to maintain his action for the enforcement of his judgment. lit will thus be seen that, if we sustain the •contention of appellant in the case at bar, rather an anomalous state of case wiil be presented, namely, that a party may enforce the collection of a judgment by suit under a state of facts, but could' not enforce its collection by a less expensive and more summary way by having an execution issued. In other words, the period of the absence of the debtor from the State shall suspend the statute of limitations so far as enforcing the collection of a judgment by suit, but does not suspend it as to the collection of the debt by execution. In Selden v. Preston, 11 Bush, 200, it was the contention of appellee that, inasmuch as he had property in Kentucky which Selden might have subjected to the payment of his debt by attachment, his absence from the State did not suspend the running of the statute of limitations in his favor; but this court decided against such contention, and held that the period of Preston’s absence should be deducted from the period named in the statute of limitations. In Craig’s Ex’r v. Anderson, 96 Ky., 425 (29 S. W., 311), it appears that Craig sought to subject certain real estate conveyed to Anderson’s wife by one Little, upon which it was alleged that Anderson of his own means had caused to be erected valuable improvements, the debt being due from the husband. One of the defenses relied on by Mrs. Anderson was the statute of limitations, more than fifteen years having elapsed from the creation of the debt before the institution of plaintiff’s action., It, however, appeared that the Andersons removed from this State to Kansas in 1880, and had so remained ever since. It was, however, — 491 — contended for Mrs. Anderson that plaintiff had no demand against her, that it was not her debt, and that, the real estate being in this State, the plaintiff could at any time have instituted suit and levied upon the land. Therefore the statute continued to run, notwithstanding her absence from the State. The court below sustained her contention, but this court reversed the judgment, holding that the removal from the State, although the property remained here and might have been attached, had the effect of suspending the statute. Section 401 of the Civil Ciode of Practice reads as follows: “An execution may be issued upon a judgment at any time until the collection of. it is barred by the statute of limitations, although no execution may have been previously issued within a year and a day.” It does not appear in this case whether the appellant had any property in this State at any time from the rendition of the judgment up to the time of the levy of the execution, nor are we inclined to hold that that question would affect the rights of the parties in this litigation. It may be true that one of the reasons that the statute which provides that the period of absence of the debtor from the State .shall suspend the running of the statute in his- favor is because his absence to some extent obstructs the prosecution of the suit. It may, however, be plausibly argued that another reason is that a person not a citizen of the' State ought not to be entitled to the benefit of a statute of repose, which evidently was enacted chiefly for the benefit of citizens of the State. After a careful consideration of the authorities and arguments, we have reached the conclusion that a judgment debtor who has removed from the State can not avail himself of the statute of limitations during his absence from the State. In other words, the statute does not run against — 492 — the judgment, or the right of the execution plaintiff to have execution issued upon 'the judgment. The court below having so adjudged, the judgment appealed from is affirmed. Chief Justice .Paynter dissenting.