Lamkins v. Cambron's Adm'rs

• Decision Date: 17 March 1922
• Parties: LAMKINS ET AL. v. CAMBRON'S ADM'RS.
• Court: Kentucky Court of Appeals

238 S.W. 766

194 Ky. 246

LAMKINS ET AL. v. CAMBRON'S ADM'RS.

Court of Appeals of Kentucky.

March 17, 1922

Appeal from Circuit Court, Marion County.

Suit by C. B. Cambron's administrators against Susie Lamkins and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Ben Spalding and S. A. Russell, both of Lebanon, for appellants.

H. P Cooper, of Lebanon, for appellees.

MOORMAN J.

Appellees R. E. Cambron and G. R. Buckler, as administrators of the estate of C. B. Cambron, sued appellants, Susie E. Lamkin and Wilfred Lamkin, in the Marion circuit court on three promissory notes of $310.42 each, dated February 12, 1897 bearing interest at the rate of 6 per cent. per annum, payable annually, and maturable, respectively, in 2, 3, and 4 years thereafter. The notes were given for deferred payments on a farm, sold to appellants in February, 1897, and secured by a lien on the land sold. Certain payments were alleged to have been made on the notes, and appellees asked for a judgment for the balance due, to be adjudged a lien on the land, and that it, or so much thereof as was necessary, be sold to satisfy the debt, interest, and cost.

By answer appellants admitted the execution of the notes, but averred that they executed four notes for $310.42 each, of date February 12, 1897, due 1, 2, 3, and 4 years thereafter; that the first note was paid and surrendered to them; that the second note had been fully paid, but Cambron had refused to surrender the same; and that nothing had been paid on the third and fourth notes, and the alleged credits on those notes were placed thereon, more than 15 years after they had matured. They pleaded the statute of limitation as to the third and fourth notes.

By subsequent pleadings appellees admitted the payment of the second note, and also that the credits on notes 3 and 4 were written thereon more than 15 years after their maturity. By a reply appellees avoided the plea of limitation as to these notes by alleging that in 1914, less than 15 years after the maturity of the two notes, appellants acknowledged to Cambron the indebtedness, as evidenced by the notes, and promised to pay the same. The allegations of the reply were controverted. The trial court submitted to a jury the question of whether appellants had acknowledged the indebtedness at the time alleged in the reply, and also that of whether at that time they claimed any credit not shown on the notes, and, if so, the amount so claimed. The jury found that appellants did acknowledge and agree to pay the indebtedness at the time alleged, and that they claimed a credit at that time on the indebtedness of $65.

Accepting the finding of the jury, as a satisfactory determination of the questions submitted, the court entered judgment against appellants for $620.84, with interest thereon at the rate of 6 per cent. per annum from February 12, 1897, less a credit of $65, with interest thereon from October 8, 1898, and adjudged a lien on the land set out in the petition and the sale thereof to satisfy such lien in accordance with the prayer of the petition.

On this appeal the first alleged error complained of is that the trial court permitted appellees to file a reply, in which they set up an acknowledgment of the indebtedness in 1914 and a promise at that time to pay it. On this point it is contended that a new cause of action was set up, and it was not proper to plead it in a reply. In support of this contention, section 98 of the Civil Code is cited, wherein it is provided a reply may contain a statement of facts which constitute an estoppel against or avoidance of, a set-off, counterclaim, or defense stated in the answer. Counsel also rely on Spiess' Adm'x v. Bartley, 130 Ky. 277, 113 S.W. 127, and other decisions of this court. These authorities, however, are inapplicable since the replies under consideration there were departures, and set up new and independent causes of action.

The argument on this point fails to recognize the important consideration, that the plea of limitation is a personal plea, which a party may or may not desire to make, but if he does avail himself of it the opposing party may then plead in avoidance thereof. Yager's Adm'r v. President, etc., 125 Ky. 177, 100 S.W. 848, 30 Ky. Law Rep. 1287; Baker et al. v. Begley, 155 Ky. 234, 159 S.W. 691. The reply of appellees was a plea in avoidance, authorized by the section of the Civil Code referred to, which, if sustained, had the effect of defeating the presumption of payment and breaking the link in the running of limitation. Hopkins v. Stout, 6 Bush, 375. It did not, therefore, change the cause of action set up in the original petition, but constituted a matter of avoidance properly set out in a reply.

The judgment is next attacked on the ground that it was improper to submit to the jury, as an issue out of chancery, any question not specifically included in the order of reference. The motion for an issue out of chancery embraced the single inquiry as to whether appellants in 1914 acknowledged or promised to pay the indebtedness covered by the last two notes? In addition to that ...