Duvall v. Parepoint

• Decision Date: 20 January 1916
• Citation: 168 Ky. 11,181 S.W. 653
• Parties: DUVALL v. PAREPOINT ET AL.
• Court: Kentucky Court of Appeals

181 S.W. 653

168 Ky. 11

DUVALL v. PAREPOINT ET AL.

Court of Appeals of Kentucky.

January 20, 1916

Appeal from Circuit Court, Hardin County.

Suit by Louis Duvall against Frank Parepoint and others. From a judgment for defendants, plaintiff appeals. Affirmed.

H. L James, of Elizabethtown, for appellant.

L. A Faurest, of Elizabethtown, F. S. Yager, of Vine Grove, and Jno. C. Graham, of Leitchfield, for appellees.

CARROLL J.

Some time prior to 1889, the father of John A. Hansbrough died leaving a large body of land in Hardin county to his four children, subject to the widow's dower. In April, 1889 Hansbrough executed to Ida Hansbrough a promissory note for $2,000, due on May 1, 1890, and to secure its payment executed to her a mortgage on his one-fourth undivided interest in the land of his father. Ida Hansbrough, before May 1, 1890, married A. D. Efird, and in January, 1913, she assigned the note to the appellant, Duvall. During all the time between the date of the marriage and the assignment of the note she was a married woman, the wife of Efird. In November, 1890. Hansbrough executed notes and mortgages for about $4,000 to the Yager Bros. on his interest in the land that had been previously mortgaged to Ida Hansbrough. In 1891 a suit was brought in the Hardin circuit court by the heirs of Elijah Hansbrough for a sale of the land and a division of the proceeds, and in January, 1892, a judgment was entered ordering the sale of all the land except that part which was set aside to the widow as dower, and at this sale the appellees Parepoint and Gardner became the purchasers and took possession, which they have since retained. In 1912, Lewis, the assignee of the notes and mortgages executed to the Yager Bros., brought suit against Hansbrough for the sale of and subjection to the debt of his undivided interest in the land that had been allotted to the widow of Elijah Hansbrough, and procured a judgment of sale, and at the sale thereunder became the purchaser. In April, 1913, the appellant Duvall, to whom Ida Hansbrough had assigned the note, brought suit in the Hardin circuit court asking for a judgment on the note against Hansbrough and the enforcement of the mortgage lien on the interest of Hansbrough in the land that had been mortgaged to secure the payment of the note. To this suit Parepoint, Gardner, and Lewis were made parties. Upon the ground that the right to subject the land to the payment of the mortgage debt had been barred by limitation, Parepoint, Gardner, and Lewis resisted the enforcement of the lien, and the court having adjudged this defense good, and dismissed the petition of Duvall in so far as it sought to subject the land, Duvall appeals.

It is conceded by counsel for appellant that the only question in the case is whether the right to enforce the lien is barred by the 15-year statute of limitation. Section 2514 of the Kentucky Statutes provides that an action on a note like this must be brought within 15 years after the cause of action accrued. Here the cause of action accrued on May 1, 1890, more than 20 years before this action was brought; but it is said that as Ida Hansbrough married Efird before the note matured or the cause of action thereon accrued, and continued to be a married woman until after her assignment of the note in 1913 to Duvall, section 2525 of the Kentucky Statutes suspended during these years the running of the statute, and therefore limitation did not bar an action on the note; and this court has so held in Onions v. Covington & Cincinnati R. Co., 107 Ky. 154, 53 S.W. 8, 21 Ky. Law Rep. 820; Sturgill v. C. & O. Ry., 116 Ky. 659, 76 S.W. 826, 25 Ky. Law Rep. 912; Dukes v. Davis, 125 Ky. 313, 101 S.W. 390, 30 Ky. Law Rep. 1348. In these cases the identical question here was not involved, but the court held that in all this class of cases, where a woman was laboring under disability of coverture when her cause of action accrued, this disability suspended the running of the statute of limitation; and so if there was no other principle of law that permitted the statute to run and bar this action, in so far as it sought to subject the land, the statute of limitation would not be an obstacle in the way of recovery.

But we think the cases of Hargis v. Sewell's Adm'r, 87 Ky. 63, 7 S.W. 557, 9 Ky. Law Rep. 920; and Mouser v. Nunn, 142 Ky. 656, 134 S.W. 1148, lay down a rule that must be applied to this case and one that makes the 15-year statute available as a complete defense. In the Hargis Case, briefly, the facts were these: In 1855, Thomas Sewell administered on the estate of William Sewell, and made a final settlement of his accounts in 1859, showing a large balance due to the widow and children of the intestate. In 1882, Thomas Sewell died, and, in a suit to settle his estate, the widow of William Sewell and some of his children were made parties, and asserted a claim for the amount alleged to be due them as heirs of William Sewell from his administrator, Thomas Sewell, claiming the amount found due by Thomas Sewell in the settlement made by him as administrator in 1859. To this claim the estate of William Sewell interposed the plea of limitation. It further appeared that the widow of William Sewell, before 1859, and before the date of the settlement made by Thomas Sewell as administrator, married a man named Hargis, who was living at the time this claim was asserted; and it was sought to avoid the plea of the statute, upon the ground that at the time the action accrued, and continuously since, the widow of William Sewell had been laboring under the disability of coverture. In holding that the statute barred the action so far as the widow was concerned, the court said:

"Her second marriage with John S. Hargis, her coappellant, did not prevent the running of the statute, although that took place before the year 1859. The husband in right of the wife, or in his own right, could have settled, receipted for, and collected this money at any time after the settlement. He was entitled to this fund by reason of the marriage, and the statute began to run as soon as this settlement took place. There is no reason, therefore, for holding that the coverture of the wife operated to prevent the running of the statute, when at no time during the 25 years next preceding the institution of this action were the parties precluded from suing, even at law, to recover of Thomas Sewell the widow's distributable share of the estate."

In the Mouser Case it appears that one P.J. Nunn was appointed guardian of Nancy T. Landon, in February, 1869. As guardian he made four settlements, the last in 1875. Nancy T. Landon married D. A. Mouser in 1873. In 1906 Nunn died, and in 1907 Nancy Mouser brought suit to recover the amount shown to be due her as ward by the settlement of P.J. Nunn made in 1875. In holding that the plea of limitation defeated the action, the court said:

"Her husband had a right of action against the guardian, and the limitation ran against him from the date of that settlement. This identical question was decided in Hargis v. Sewell's Adm'r. * * * In that case, at the time the settlement took place, the beneficiary was married, and yet the court held that, inasmuch as her husband was entitled to this money, she could not avoid the effect of the plea of the statute of limitations by reason of her coverture."

We are unable to make any distinction between these cases and the...