Walker's Exr. v. Luxon's Admr.

[15] Opinion of the Court by Chief Justice Barker— Affirming. On March 5,1887, W. E. Luxon and his wife, Sallie B. Luxon, executed and delivered to J. Stone Walker their promissory note for $450, and to secure its payment executed and delivered a mortgage on the real estate described in the petition, which is situated in Richmond, Ky. Afterwards, on June 25, 1887, Luxon and wife sold and conveyed the mortgaged property to S. D. Parish for $400 cash, $200 due in 60 days, and the further consideration that Parish assume the debt of $450 due J. Stone Walker. Cn January 24, 1888,' S. D. Parish made a payment of $240.25 on the note. In 1890 he sold a part of the mortgaged property to Lyman Parish, and in 1892 appellee W. L. Arnold purchased a portion of it. On the 9th day of Januar3, 1902, the appellant’s testator, Sallie E. Walker, claiming to be the owner of the note executed by the Luxons to J. Stone Walker, instituted this action by filing in the Madison circuit court a suit against W. E. Luxon and wife. In the petition the payment of $240.25 as of January 24, 1888, is admitted, and judgment prayed for the balance of the debt and an enforcement of the lien upon the mortgaged property. Afterwards, in August, 1904, an amended petition was filed, setting-up the fact that the appellees Lyman Parish, and W. L. Arnold had purchased portions of the mortgaged property, and making them parties defendant. The two last-named defendants filed separate answers, each containing six paragraphs. . In the first paragraph they denied certain allegations of the petition. In the second, they pleaded payment in full to J. Stone Walker of the debt sued on. By the third, [16] fourth, fifth, and sixth paragraphs they pleaded several statutes of limitation. A general demurrer to the third, fourth, fifth, and sixth paragraphs to the answers was sustained. The deposition of J. Stone Walker was then taken on the issues remaining, and the case submitted for judgment. The trial conrt adjudged that the plaintiff was entitled to a judgment against the Luxous for the amount claimed in her petition, and that she was entitled to enforce her mortgage against all -of the property except that claimed by the ajopellees Parish and Arnold. As to them the fifteen-year statute of limitation barred the right of action in plaintiff to enforce her mortgage against property owned by them. Therefore, the petition was dismissed as to them. Of this part of the judgment the appellant, Sallie E. Walker’s executor (she having died pendente lite), now complains. The circuit judge evidently changed his opinion as to the validity of the plea of the fifteen-year statute of limitation between the time the general demurrer to the paragraphs of the answer pleading that statute and the rendition of the judgment. But we assume that plaintiff was not prejudiced by this change, in so far as the preparation of her case was concerned. Of course, the court would have permitted her to reply to the several paragraphs of the answer, if she had so desired, after he changed his opinion and overruled the demurrer to them; but, as all of the facts upon which the plea of'the statute of limitation was based are admitted in the pleadings, no reply could have been made. The right of action on the note was clearly barred as to appellees at the time the action was instituted against them. The note was dated March 5, 1887, and the action [17] as to appellees was instituted in 1904. If we assume that the payment made in January, 1888, extended the life of the note for the full period of 15 years, still the debt was barred in 1904; more than 16 years having elapsed between that date and the time the action was commenced against appellees. Tate v. Hawkins, 81 Ky. 577, 50 Am. Rep. 181; Kendall, Adm’r, v. Clarke, 90 Ky. 178, 13 S. W. 583, 11 Ky. Law Rep. 980; Cook v. Union Trust Co., 106 Ky. 803, 51 S. W. 600, 21 Ky. Law Rep. 454, 45 L. R. A. 212. Appellant seeks to avoid this conclusion by pointing out that the action was instituted against the Luxons just a few days before the statute of limitations barred the claim against them; and it is said that, because the running of the statute was stopped against the Luxons, it was also stopped as against appellees. This position is manifestly unsound. The appellees were not sued until they were made parties defendant by the amended petition filed in August, 1904, and the statute ran as to them until that time. When the amended petition was filed, making them parties, more than 16 years had elapsed since the payment in January, 1888, from which time the running of the statute must be dated. The unsoundness of appellant’s position was held both in the eases of Tate v. Hawkins and Kendall, Adm’r, v. Clarke, supra. In neither of these cases did the statute of limitations run as between the immediate parties to the debt sued for, but in each it was held that the remote vendees were protected by the running of the statute. Indeed, this proposition is so plain that it does not need the citation of authorities to support it. If the statute runs in favor of the remote vendees at all, it runs until stopped by the institution of an action against them. There was no action in [18] stituted against them until the amended petition was filed, in 1904, making them parties defendant, and the issuance of summons thereon. The conclusion we have reached on this question makes it unnecessary for us to consider the sufficiency of the plea of payment made in the second paragraphs of the answers of appellees, to which no reply seems to have been filed. Judgment affirmed.