Henderson v. Fielder

• Decision Date: 24 October 1919
• Citation: 215 S.W. 187,185 Ky. 482
• Parties: HENDERSON ET AL. v. FIELDER ET AL.
• Court: Kentucky Court of Appeals

215 S.W. 187

185 Ky. 482

HENDERSON ET AL. v. FIELDER ET AL.

Court of Appeals of Kentucky.

October 24, 1919

Appeal from Circuit Court, Estill County.

Suit by Herbert Henderson and others against W. F. Fielder and others. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

Miller & Chapman, of Irvine, for appellants.

Hugh Riddell and Robert R. Friend, both of Irvine, for appellees.

QUIN J.

Appellants (plaintiffs below) are the children and heirs at law of Orthernile Henderson, and as such they alleged they were entitled to a one-fifth interest in the real estate owned by their grandmother, Eleanor Henderson, at the time of her death in 1900. It is alleged that other children of Eleanor Henderson sold their interests to defendants, and therefore the parties are joint owners of the land in question. Defendants denied that plaintiffs had any interest in the land, and affirmatively alleged they were the sole owners of said land, alleging in an amended answer that on January 19 1897, Eleanor Henderson sold and conveyed the land in contest to her son Joshua T. Henderson by deed recorded in November 1900. A demurrer to this answer having been overruled the plaintiffs replied that the deed from their grandmother to Joshua T. Henderson was procured through fraud and undue influence, was without consideration, and because of these facts and the infirmities of old age said instrument was not the act and deed of their grandmother, and passed no title to the land. It is also alleged that after the grandmother's death, suit was filed by some of the children to set aside the deed; but this suit was later dismissed, and the children, other than the father of plaintiffs, joined in a deed to Joshua T. Henderson. The 10 and 15 year statutes of limitations are relied upon by defendants. The lower court dismissed the petition, and we think this judgment is correct for two reasons:

1. It is well settled, subject to few exceptions, that when limitation begins to run against the right to enforce a cause of action, the running of the statute is not interrupted by reason of any subsequent event or condition, and the death of the ancestor will not stop the running of the statute. This suit was not filed until July 9, 1912, more than 15 years after January 19, 1897, when the deed was executed. Section 2505, Ky. Stat., provides:

"An action for the recovery of real property can only be brought within fifteen years after the right to institute it first accrued to the plaintiff, or to the person through whom he claims."

The cause of action, if any, accrued during the lifetime of Eleanor Henderson, and the statute having commenced to run upon the execution of the deed, her death did not suspend or interrupt the running of the statute. The minority of the children or other heirs will not arrest it; the bar being just as complete as if the grandmother had lived through the whole time of the statutory period of limitations, plaintiffs had no greater rights than if Eleanor Henderson had lived. By the descent cast, the heirs were placed exactly in the shoes of their ancestor, and, the statute having commenced running as to her in her lifetime, it continued to run without let or intermission.

The accrual of a cause of action means the right to institute and maintain a suit, and, whenever one person may sue another, a cause of action has accrued, and the statute begins to run. 25 Cyc. 1066. Any cause of action to set aside the deed in question, having accrued January 19, 1897, and no suit having been brought within 15 years thereafter the action was barred.

2. It is sought to set aside the deed on the ground of fraud, and here again we find the statute puts an absolute bar to the maintenance of this action. Section 2519 of the Ky. Stat. provides:

"In actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be

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