Clift v. Williams

• Decision Date: 04 February 1899
• Citation: 105 Ky. 559,49 S.W. 328
• Parties: CLIFT v. WILLIAMS et al. GLOVER et al. v. WILLIAMS' ADM'R.
• Court: Kentucky Court of Appeals

49 S.W. 328

105 Ky. 559

CLIFT v. WILLIAMS et al.

GLOVER et al. v. WILLIAMS' ADM'R. ^[1]

Court of Appeals of Kentucky.

February 4, 1899

Appeal from circuit court, Fleming county.

"To be officially reported."

Action by the administrator of J. W. Williams against B. F. Clift trustee, and Glover & Durrett and others, to settle the estate of plaintiff's intestate. Judgment dismissing the cross petitions of the defendants named, and they appeal. Reversed.

John P McCartney and E. L. Worthington, for appellant Clift. Joseph H. Power and E. P. Humphrey, for Glover & Durrett. Joseph H Power, for Lucy B. Williams.

WHITE J.

The two appeals are upon the same transcript, and are heard together. The administrator of J. W. Williams brought an action to settle the estate of his decedent, and both appellants, being creditors of J. W. Williams, were made parties defendant. Appellant B. F. Clift, trustee of Stanton Clift, in his answer and cross petition, alleges that in March, 1878, the decedent, J. W. Williams, executed a note to W. S. Botts for the sum of $2,500, due 12 months after date. To secure this note, Williams and his wife, appellee Lucy Williams, executed a mortgage on a tract of land in Fleming county, and on which Williams then lived. This note to Botts was sold and assigned to John Clarke, and, by the will of John Clarke, devised to appellant Stanton Clift. Payments were made on this note from time to time, from March, 1879, the last being October 19, 1895. The note, properly proven, and the mortgage, were filed with the cross petition, and judgment was sought enforcing the mortgage lien. To this answer and cross petition of Clift certain creditors of decedent filed answer, and pleaded the statute of limitation of 15 years to the mortgage therein set out. They alleged that before they gave credit to decedent, J. W. Williams, they caused the records of the county clerk's office of Fleming county to be examined for a period of 15 years next before the investigation, and that, finding within said date no mortgage lien of record, they extended credit to decedent, J. W. Williams, upon the belief, from their investigation, that there was no lien, and these creditors deny that appellant Clift has a lien on the land. W. Y. Williams, a son of decedent, and the administrator, filed answer to the answer and cross petition of appellant Clift. Williams alleges that in January, 1888, he purchased, by deed of general warranty, from decedent, J. W. Williams, and his wife, appellee Lucy Williams, a portion of the land described in the mortgage to Botts, this portion containing 87.1 acres, at the price of $4,350, of which sum $2,500 was paid cash, and that the deferred payments had long since been paid to decedent in his lifetime; and in 1890 purchased of Maginnis, who had purchased of Sousely, who had purchased of Williams, who had purchased of decedent, about five acres of this land, and had paid for same in full. Williams pleaded the statute of 15 years as a bar to Clift's lien; also that Clift, well knowing of his purchase of this portion, indulged decedent for many years without enforcing his lien, and without collecting the full amount of the interest, and pleaded this laches in bar of appellants' lien. Appellee Lucy Williams, the widow of decedent, J. W. Williams, also filed answer to the cross petition of appellant Clift; and alleges that, by the mortgage to Botts, she only waived and relinquished her potential right of dower in the land, and that more than 15 years had elapsed since its execution, and that she was and is ignorant of any payments on the note, and that, as to her rights of dower, the mortgage lien is barred by limitation. To all of these answers to the cross petition of Clift demurrers were filed and overruled by the court, and, appellant Clift declining to plead further, the court adjudged he had no lien on the land by reason of limitation, but allowed his note as a general claim against the decedent, J. W. Williams. From that part of the judgment that adjudged that appellant had no lien this appeal is prosecuted by him.

This court in the case of Prewitt v. Wortham, 79 Ky. 287, said: "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." In the case of McCracken Co. v. Mercantile Trust Co., 84 Ky. 344, 1 S.W. 585, it is said: "There is no statute of limitation as to liens. If the claim becomes barred, the lien dies with it. Tate v. Hawkins, 81 Ky. 577. If the claim could be made an incident of the lien, then 'the statute of repose' would be defeated. As the claim no longer legally existed, the lien had nothing to support its existence." This doctrine was recognized and followed in the case of Bank v. Thomas (decided Feb. 3, 1887) 3 S.W. 12, where a mortgage was executed to secure a bill of exchange. It was held that the mortgage lien existed with the debt, and when the debt is barred the mortgage lien is barred.

It seems to be well settled in this state that a lien...