First Nat. Bank v. Thomas

• Decision Date: 03 February 1887
• Parties: FIRST NAT. BANK OF CINCINNATI v. THOMAS.
• Court: Kentucky Court of Appeals

3 S.W. 12

FIRST NAT. BANK OF CINCINNATI v. THOMAS.

Court of Appeals of Kentucky.

February 3, 1887

Appeal from circuit court, Logan county.

Robt. Rodes and Thos. B. Blakey, for appellant.

Browder & Edwards, for appellee.

PRYOR C.J.

On the twentieth of December, 1876, the appellee executed to the appellant a mortgage to secure it in the payment of three bills of exchange, aggregating in amount over $9,000. The bills were all dated prior to the mortgage. The appellee being the drawer of each bill, brought his action in equity alleging that the bills had been discharged or satisfied, and asking that the incumbrance be removed. The appellant filed an answer denying that the bills had been paid by the drawees, Burbank and Nash, and asked a foreclosure of the mortgage, to which a reply was filed by the appellee, (the drawer,) in which was pleaded the statute of limitation of five years.

"An action upon a bill of exchange shall be commenced within five years next after the cause of action accrued." Gen. St c. 71, art. 3, § 2.

Five years had elapsed from the maturity of each bill before any action was instituted, and we see no reason why the statute is not a bar to the right to coerce payment. The mortgage was a mere incident to the debt, and given to secure its payment and, when the right of recovery as to the debt itself is gone, the lien to secure it necessarily goes with it. The stipulations of the mortgage are not independent covenants upon which a recovery can be had regardless of the debt, to secure the payment of which the mortgage was given. The liability of appellee is on the original paper as the drawer; and, when that liability ceases, the covenants in the mortgage, having created no new right except the lien, cannot be looked to as extending the liability from five to fifteen years. Prewitt v. Wortham, 79 Ky. 287; Vandiver v. Hodge, 4 Bush, 539; Yeates v. Weeden, 6 Bush, 438.

It is claimed that both of these parties are residents of the state of Ohio, and that the cause of action accrued in that state and therefore the statute of that state must prevail. Whether Thomas is or not a resident of Ohio does not appear; and if he is, this action having been brought in Kentucky to enforce the lien, the statute of limitation of this state is well pleaded; and to avoid its effect the burden was on the appellant of showing that the cause of action accrued in Ohio, between these parties...