Walker's Exr v. Luxon's Admr.

CourtCourt of Appeals of Kentucky
Writing for the CourtBarker
Citation138 Ky. 14
PartiesWalker's Exr v. Luxon's Admr
Decision Date27 April 1910
138 Ky. 14
Walker's Exr
Luxon's Admr
Court of Appeals of Kentucky.
April 27, 1910.

Appeal from Madison Circuit Court.

J. M. BENTON, Circuit Judge.

Judgment for defendants, plaintiff appeals. — Affirmed.

J. A. SULLIVAN and S. M. WALLACE for appellant.


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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,

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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...

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