Clift v. Williams

• Decision Date: 17 June 1899
• Citation: 105 Ky. 559,51 S.W. 821
• Parties: CLIFT v. WILLIAMS et al. [1]
• Court: Kentucky Court of Appeals

51 S.W. 821

105 Ky. 559

CLIFT v. WILLIAMS et al. ^[1]

Court of Appeals of Kentucky.

June 17, 1899

"Not to be officially reported."

Petition for rehearing. Denied.

John P McCartney and E. L. Worthington, for appellant Clift. Joseph H. Power and E. P. Humphrey, for Glover & Durrett. Joseph H Power and Edward W. Hines, for appellees.

WHITE J.

It is insisted on petition for rehearing that the opinion herein is in conflict with the opinion of this court in Tate v Hawkins, 81 Ky. 577, and Kendall v. Clarke, 90 Ky. 178, 13 S.W. 583. We do not so deem it. In the Tate-Hawkins Case, the facts show that Hawkins sold by deed the land in 1864, and the vendor's lien then had some 14 years to run. The action was brought in 1881, more than 15 years afterwards. The payments made on the note by Hawkins in 1873 and 1878 could only operate to elongate the statute of limitations as to the note, and bind Hawkins. When these payments were made by Hawkins, he had long since ceased to have power to bind the land for anything. The land was sold by Hawkins to Basket in 1864, and was subject to the vendor's lien as it then existed, i. e. for 14 years, or the length of time to complete the bar, and no subsequent act of Hawkins after he parted with title could change this time as to the land, however long he might protract the time as to the debt itself. As long as Hawkins owned the land, he might have extended the lien by extending the note, but when he ceased to own the land his power to further bind it ceased. The purchaser took it with all its then burdens, but they could not be increased. Applying that rule to this case, it is manifest the opinion rendered herein is the law. The decedent, Williams, had by payments elongated the statute as to his debt and as to his land. When a part was sold to the son, W. Y. Williams, in 1888, the note and lien were by payments, on foot, and the time necessary to elapse to bar by limitation extended far beyond the filing of the petition by Clift. There is nothing in the record showing the date of the deed by J. W. Williams for the 5 acres, afterwards acquired by W. Y. Williams, and we are unable to say whether it would come within the same rule as the 87 acres or not, as to limitation. However, that could be subjected, if at all, only after the residue had failed to satisfy appellant's (Clift's) mortgage. Payments made by decedent, Williams after the sale to his son, could not affect the part sold to the son, but that has no application here.

It is also insisted that, as to the widow, Lucy B. Williams, and her right of dower, the mortgage of Clift is barred by limitation, and that no payments by her husband can operate to extend the mortgage as to her right of...