Miller v. Title Ins. & Trust Co.

• Decision Date: 23 May 1939
• Parties: MILLER v. TITLE INS. & TRUST CO.
• Court: Kentucky Court of Appeals

129 S.W.2d 163

278 Ky. 598

MILLER v. TITLE INS. & TRUST CO.

Court of Appeals of Kentucky

May 23, 1939

Appeal from Circuit Court, Perry County; S. M. Ward, Judge.

Suit by the Title Insurance & Trust Company against Mahala Miller and others to recover judgment for amount unpaid on mortgage notes. From a judgment enforcing the mortgage and from an order confirming the report of sale, the named defendant appeals.

Judgment affirmed and order reversed.

C. A Noble, of Hazard, for appellant.

W. W Reeves, of Hazard, for appellee.

STANLEY Commissioner.

We have for consideration an appeal from a judgment enforcing a mortgage on real estate and an appeal from an order confirming the report of sale.

Mrs Mahala Miller, on December 20, 1926, executed a mortgage deed of trust on property in Hazard to the Louisville Title Company to secure the payment of $10,000, borrowed money. Her husband, W. H. Miller, joined in the instrument. The debt was evidenced by a series of bonds or notes and it was agreed that the mortgagor and payee should deposit $117.20 a month with the mortgagee to create a fund for the satisfaction of the bonds. The Title Insurance & Trust Company succeeded the Louisville Title Company as trustee and mortgagee. In February 1935, it filed this suit against Mrs. Miller and her son and daughter, as heirs of W. H. Miller, who had died in 1932, to recover judgment for the principal sum of $6,500 and interest, subject to credits aggregating $782.14 and $34.60, which it had paid as insurance premium. The plaintiff prayed the enforcement of its lien because of default in payment and precipitation of the balance according to the contract. Perry County, the City of Hazard and the Board of Education were made parties defendant and called upon to set up their respective tax liens on the property.

Nearly a year afterward Mahala Miller filed answer in which she admitted the execution of the bonds and the mortgage, but denied the debt was subject only to a credit of $782.14 as alleged in the petition, and affirmatively pleaded the bonds should be credited by $3,532.00. Elsewhere she alleged that the balance due on the debt on March 20, 1932, was $3,532.00, and again that it was $2,807. No reply was filed to her answer.

After a time Mrs. Miller was put on terms to submit proof on her plea of payment, but she never did so. In June, 1936, judgment was rendered in favor of the plaintiff for the amount claimed in its petition and the property ordered sold in satisfaction of the lien.

Mrs. Miller contends on the appeal that having specifically denied owing the amount claimed in the petition and affirmatively alleged that all the debt had been paid with the exception of $2,807, and no reply being filed, the judgment is erroneous to the extent of the excess. Since the plea of partial payment was but an affirmative traverse of the allegations of the petition, a reply was not necessary. Logan County National Bank v. Barclay, 104 Ky. 97, 46 S.W.675, 20 Ky.Law Rep. 773. The question is: Upon whom does the burden of proof rest where a defendant pleads payment of a part of the debt sued on? It has heretofore been answered in several cases that a party who resists the right of the plaintiff to a judgment for a debt upon the ground it has been paid or that there have been payments made which will reduce the amount below what is claimed, he must prove the full or partial payment relied on, and his failure to do so entitles the plaintiff to a judgment for the amount sued for. Tom's Creek Coal Company v. Skeene, 90 S.W. 992, 28 Ky.Law Rep. 962; Fornash v. Antrobus, 178 Ky. 621, 199 S.W. 781; Phillips' Ex'r v. Reid, 268 Ky. 317, 104 S.W.2d 1093.

It is further claimed that the judgment should be reversed because the defendant, E. H. King, was before the court only on constructive service and no bond was executed as required by Section 410, Civil Code of Practice, when a judgment is rendered against a defendant constructively summoned. It was alleged in the petition that King had a second mortgage on...