Walker's Exr v. Luxon's Admr.
| Citation | 138 Ky. 14 |
| Parties | Walker's Exr v. Luxon's Admr |
| Decision Date | 27 April 1910 |
| Court | Court of Appeals of Kentucky |
Appeal from Madison Circuit Court.
Judgment for defendants, plaintiff appeals. — Affirmed.
J. A. SULLIVAN and S. M. WALLACE for appellant.
JOHN C. CHENAULT and HENRY C. HAZELWOOD for appellees.
On March 5, 1887, W. E. Luxon and his wife, Sallie B. Luxon, executed and delivered to J. Stone Walker their promissory note for $450, and to secure its payment executed and delivered a mortgage on the real estate described in the petition, which is situated in Richmond, Ky. Afterwards, on June 25, 1887, Luxon and wife sold and conveyed the mortgaged property to S. D. Parish for $400 cash, $200 due in 60 days, and the further consideration that Parish assume the debt of $450 due J. Stone Walker. On January 24, 1888, S. D. Parish made a payment of $240.25 on the note. In 1890 he sold a part of the mortgaged property to Lyman Parish, and in 1892 appellee W. L. Arnold purchased a portion of it.
On the 9th day of January, 1902, the appellant's testator, Sallie E. Walker, claiming to be the owner of the note executed by the Luxons to J. Stone Walker, instituted this action by filing in the Madison circuit court a suit against W. E. Luxon and wife. In the petition the payment of $240.25 as of January 24, 1888, is admitted, and judgment prayed for the balance of the debt and an enforcement of the lien upon the mortgaged property. Afterwards, in August, 1904, an amended petition was filed, setting up the fact that the appellees Lyman Parish and W. L. Arnold had purchased portions of the mortgaged property, and making them parties defendant. The two last-named defendants filed separate answers, each containing six paragraphs. In the first paragraph they denied certain allegations of the petition. In the second, they pleaded payment in full to J. Stone Walker of the debt sued on. By the third fourth, fifth, and sixth paragraphs they pleaded several statutes of limitation. A general demurrer to the third, fourth, fifth, and sixth paragraphs to the answers was sustained. The deposition of J. Stone Walker was then taken on the issues remaining, and the case submitted for judgment. The trial court adjudged that the plaintiff was entitled to a judgment against the Luxons for the amount claimed in her petition, and that she was entitled to enforce her mortgage against all of the property except that claimed by the appellees Parish and Arnold. As to them the fifteen-year statute of limitation barred the right of action in plaintiff to enforce her mortgage against property owned by them. Therefore, the petition was dismissed as to them. Of this part of the judgment the appellant, Sallie E. Walker's executor (she having died pendente lite), now complains.
The circuit judge evidently changed his opinion as to the validity of the plea of the fifteen-year statute of limitation between the time the general demurrer to the paragraphs of the answer pleading that statute and the rendition of the judgment. But we assume that plaintiff was not prejudiced by this change, in so far as the preparation of her case was concerned. Of course, the court would have permitted her to reply to the several paragraphs of the answer, if she had so desired, after he changed his opinion and overruled the dem...
To continue reading
Request your trial