Prewitt, &C., v. Wortham, &C.

• Decision Date: 19 February 1881
• Citation: 79 Ky. 287
• Court: Kentucky Court of Appeals
• Parties: Prewitt, &c., v. Wortham, &c.

Page 287

79 Ky. 287

Prewitt, &c., v. Wortham, &c.

Court of Appeals of Kentucky.

February 19, 1881.

APPEAL FROM GRAYSON CIRCUIT COURT.

JAS. S. WORTHAM FOR APPELLANT.

G. W. STONE FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

This is an action against heirs to sell the real estate of the ancestor to pay debts. One Burtle comes in by cross-petition, asserting a claim secured by mortgage on personal property, but the property having been consumed by the decedent, Burtle is permitted to assert claim as a general creditor. To this claim the five years' statute of limitation as to accounts and contracts not in writing was interposed. The mortgage was executed in 1861, and the claim against the estate asserted in 1874, less than fifteen years after execution of the mortgage, but more than five years after the date of the mortgage. In the absence of a written obligation to pay, the statute requires, in addition to the affidavit of the claimant, other evidence. In this case there is no proof of the claim except the affidavit of Burtle and the mortgage. This presents the question whether the mortgage is "a written contract" which may be enforced at any time within fifteen years from its execution, or whether the claim is based upon "a contract not in writing," and therefore barred within five years.

The mortgage recites that it is made to secure an indebtedness of two hundred dollars, without specifying how the indebtedness arose or how it is evidenced, and concludes: "The above obligation is such that if the said Prewitt shall well and truly pay the above-named two hundred dollars, then this obligation to be void."

The test of whether this is "a written contract" within the fifteen years' statute of limitations depends upon whether it could be declared on as a covenant to pay. If an action could be brought and recovery had upon the mortgage as a substantive agreement, the statute as to written contracts applies; but if it cannot be so declared upon and a recovery had, it comes within the five years' statute of "contracts not in writing," and the right of recovery is barred. The element wanting here is of a substantive promise to pay. Even in a petition upon a note there must be an allegation of a promise, notwithstanding the note declared upon contains an undertaking to pay.

A mortgage may be so drawn as to contain an independent agreement which absorbs the original contract, but in the usual form, a mortgage is simply a collateral undertaking and is a mere security for the debt. The rule in this state in reference to mortgages, whether on personal or real estate, is, that they are mere securities for the debt. No title passes to the mortgagee, and no right is acquired by the mortgagee, except as an incident to the debt. When the debt to secure which the mortgage was given is barred by statute, the incident goes with the principal, and the mortgage ceases to be enforceable. The learning upon this subject is well presented by Justice Sergeant in Scott v. Field, 7 Watts, 360. (See also Hall et al. v. Byrne et al., 1 Scammon, 140; Culver v. Sisson, 3 N. Y., 264.)

Frequently an action will lie upon an instrument in writing which is a mere acknowledgment of the debt, and in which there is no express promise to pay, when an action would not lie upon the same language contained in a mortgage. In the one case the writing is presumed to be given as evidence of an agreement to pay, because it can have no other effect, and would, if not so construed, be meaningless; but in the case of a mortgage, the language used is presumed to have been so used to effect the usual object of a mortgage, which is to put in lien property as security for a debt. In either case it is a question of intention as to whether the writing was designed to evidence a contract to pay money, or was only intended to give security for a debt. In Kendal...