Kendall, Adm'R, &C., v. Clarke

• Court: Court of Appeals of Kentucky
• Writing for the Court: Lewis
• Citation: 90 Ky. 178
• Decision Date: 24 April 1890
• Parties: Kendall, Adm'r, &c., v. Clarke.

Page 178

90 Ky. 178 Kendall, Adm'r, &c.,
v.
Clarke. Court of Appeals of Kentucky. April 24, 1890. APPEAL FROM FLEMING CIRCUIT COURT.

W. G. DEARING AND W. J. HENDRICK FOR APPELLANTS.

Page 179

W. A. SUDDUTH FOR APPELLEE.

CHIEF JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT

Appellee, John Clarke, instituted this action May 1, 1885, to recover judgment as assignee on a note for two hundred dollars, payable December 25, 1869, by A. J. Royse to Nancy A. Jones, in part consideration for a tract of one hundred and eighty-eight acres of land, and to enforce vendor's lien as well upon seventy-six acres thereof sold to one Ham, who afterwards sold to appellant, Campbell, as upon the residue of the tract owned by Royse, now deceased, when the action was commenced.

It is obvious more than fifteen years had elapsed from the time the note fell due until the action was instituted, but to avoid the plea of limitation a credit of eighteen dollars and eighty cents, indorsed on the note as of January 2, 1882, is relied on, and seems to have been considered by the lower court sufficient for the purpose.

Whatever may be the operation of the credit, so far as Royse, while living, and his personal representative and devisees afterwards, might have been, it certainly did not nor should have the effect to continue, beyond the period of fifteen years, the lien on that part of the land purchased by appellant Campbell. For it was expressly decided by this court, in Tate v. Hawkins, 81 Ky., 577, that, while a partial

Page 180

payment made by the original vendee on a note for the purchase-money within fifteen years would have the effect, as to him, to suspend operation of the statute of limitation between accrual of cause of action on the note and date of payment, the rule could not be applied to the prejudice of a remote vendor not a party to the transaction. Consequently, the statute of limitation is, as to Campbell, clearly a bar, and it was error to enforce the alleged lien on, and subject to satisfaction of the note, any portion of the original tract owned by him.

As defense to the action A. J. Royse, while living, and his personal representative afterwards, pleaded payment of the note, and also limitation.

The evidence tends to show the note had been paid off previous to 1882, but it is not necessary to reverse the finding of the lower court on that issue of fact.

It was alleged in the answer that the indorsement on the note of a payment of eleven...