Newdegate v. Early's Adm'r

• Decision Date: 03 February 1899
• Citation: 49 S.W. 338
• Parties: NEWDEGATE et al. v. EARLY'S ADM'R. [1]
• Court: Kentucky Court of Appeals

49 S.W. 338

NEWDEGATE et al. v. EARLY'S ADM'R. ^[1]

Court of Appeals of Kentucky.

February 3, 1899

Appeal from circuit court, Mason county.

"Not to be officially reported."

Action by William Early's administrator against Senea P Newdegate and others on a promissory note. Judgment dismissing defendants' counterclaim, and they appeal. Affirmed.

Thos L. Given and A. E. Cole & Son, for appellants.

E. L Worthington and A. M. J. Cochran, for appellee.

HOBSON J.

Appellee brought this suit on a note for $4,416.84 given by appellants to David Early, May 5, 1886, and secured by mortgage. Appellants pleaded usury, and the case was referred to a commissioner to report what had been paid and how the account stood. After taking proof, he reported that the payments that had been made extinguished the note after purging it of usury, and that there was a balance due appellants of something like $3,000, including interest, over and above the amount of the debt. Appellee relied on the one-year statute of limitations in bar of any recovery of usury, and the court below, having sustained this plea, dismissed both the petition and counterclaim. Appellants seek to reverse this judgment, on the ground that the statute of limitations could not be relied on because of fraud on the part of appellee's intestate.

It is a well-settled rule that matter of this kind must be pleaded. There was no plea in avoidance of the statute, and we do not think that a matter of this sort can be given in evidence without being pleaded. The last payment on the debt was made on December 19, 1891. The action was brought in the summer of 1892, and the answer and counterclaim were filed on June 14 1893, or considerably more than a year after the last payment was made. So the statute clearly applied, and, if there was anything to obstruct the running of the statute, it should have been specially pleaded, to apprise appellee of the nature of the claim, so that he might prepare his case to meet it. This was especially necessary, as he had no personal knowledge of the facts.

But there is nothing in the record which, if pleaded, would be sufficient to stop the running of the statute. The charge of fraud is based on the fact that William Early, who made the original loan on March 1, 1866, had a new note given on February 13, 1872, to David Early, to avoid the laws against usury; David merely taking the note in his name for his brother William, for the purpose of making it appear as an original transaction, and so to avoid, after one year from that time, a recovery of the usury that had been previously paid. Appellants insist that this was a fraud, and was unknown to them until after the bringing of this suit....