Tate v. Hawkins, &C.

• Court: Court of Appeals of Kentucky
• Writing for the Court: Lewis
• Citation: 81 Ky. 577
• Parties: Tate v. Hawkins, &c.
• Decision Date: 26 January 1884

Page 577

81 Ky. 577 Tate
v.
Hawkins, &c. Court of Appeals of Kentucky. January 26, 1884. APPEAL FROM BRECKINRIDGE CIRCUIT COURT.

N. McMERCER AND WM. LINDSAY FOR APPELLANT.

JNO. ALLEN MURRAY AND WM. MILNER FOR APPELLEE.

Page 578

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

July 31, 1861, in consideration of a tract of land sold, but not conveyed to him until March 17, 1862, appellee, Hawkins, executed a promissory note to the vendor, Jennings, payable March 1, 1863, to secure the payment of which a lien was reserved in the deed.

March 15, 1864, Jennings' executor, in writing thereon, assigned the note without recourse to appellant, the residue then agreed to be due having, as appears from a memorandum written at that time upon the note, and signed by Hawkins, been paid off for him by appellant.

On the same day Hawkins sold and conveyed the same land to Basket, the deed therefor being acknowledged and lodged for record April 16, 1864.

Basket having paid the full consideration, took possession of the land and held it until March 23, 1875, when he sold and conveyed it to appellee, Milner, who paid him therefor, and has held it ever since.

This action was brought March 21, 1881, against appellees, Hawkins and Milner, to recover personal judgment for the amount of the note unpaid against the first named, and to enforce the lien retained in the deed from Jennings, and subject the land in the possession of the latter to the payment thereof.

No defense was made by Hawkins, and personal judgment for the debt was rendered against him; but Milner resisted enforcement of the lien, and judgment was rendered dismissing the petition as to him.

We do not agree with counsel for appellee that the memorandum upon the note signed by Hawkins imports anything more than an acknowledgement by him of the amount of the note then due. The assignment by Jennings' executor

Page 579

invested appellant with the legal title to the note, and the right to maintain an action thereon for the residue of the debt due, and the enforcement of the lien upon the land for its payment.

The principal ground relied on by appellee, Milner, as a defense to the action, is the statute of limitation.

It appears from endorsements on the note that several payments were made by Hawkins subsequent to the assignment to appellant, one of them being dated March 10, 1873, which was within fifteen years from the time the cause of action accrued, and another was dated March 16, 1878, which was after the lapse of that period. And counsel for appellant, relying upon the cases of Hopkins v. Stout (6 Bush, 375), and English v. Wathen (9 Bush, 381), contends that the partial payment, made within the required period, was prima facie an acknowledgment that the balance of the note then remained unpaid, and suspended the running of the statute prior to the date of that payment.

But before this rule can be applied in this case, if it applies at all, it should, if the fact is controverted in the pleadings, be proved that the partial payment was made at the time it purports to have been made, or at least within fifteen years from the time the note became due. (Frazer, &c., v. Frazer, 13 Bush, 397.)

As, however, it is not clear either that the issue of fact was properly made in the pleadings, or that it was proved the partial payment was made within the time required to avoid the statutory bar, we will proceed to the main and decisive question whether, according to the rule adopted in the cases referred to, the partial payment made by Hawkins has had the effect to suspend the running of the statutes to the prejudice of Milner, the remote vendee.

Page 580

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