Wey v. Schofield
| Decision Date | 07 April 1894 |
| Citation | 53 Kan. 248,36 P. 333 |
| Parties | WEY v. SCHOFIELD. |
| Court | Kansas Supreme Court |
An action to recover a penalty for failing to discharge of record a mortgage which had been fully paid and satisfied cannot be maintained until a demand for such discharge has been made, and it can only be brought within one year after the cause of action accrues; but where no demand is made until more than one year after the demand could have been made, the action to recover the penalty is barred by the statute of limitations.
Error from district court, Phillips county; G. Webb Bertram, Judge.
Action by William H. Schofield against H. C. Wey. Judgment for plaintiff. Defendant brings error. Reversed.
C. A Lewis, for plaintiff in error.
McKay & McCormick, for defendant in error.
This action was brought by W. H. Schofield against H. C. Wey to recover $200 as penalty for refusing on demand to discharge of record two chattel mortgages given by Schofield to Wey. The first of these mortgages was filed for record on October 20, 1886, and it is alleged that the debt for which it was given was fully paid and satisfied during the year 1886. The second mortgage was entered of record July 21, 1887, and it is alleged that the debt for which it was given was paid in full on October 26, 1888. The mortgages were not discharged of record, and no demand was made upon Wey to release them of record until January 9, 1890. This action to recover the penalty was brought on March 4, 1890. While there is some contention that the whole of the debt secured by the mortgages had not been paid, the principal contention is that the action to recover the penalty has been barred by the statute of limitations. There being no limitation upon the bringing of the action in the statute imposing the penalty it can only be brought within one year after the cause of action shall have accrued. Civ. Code, § 18, subd. 4. Before an action can be maintained to recover this penalty, a demand must be made by the mortgagor for the release of the mortgages, but he cannot extend the statutory period of limitation by an unreasonable delay in making such demand. Much more than a year elapsed between the time of payment and when a demand for a discharge of record might have been made before the demand was actually made. The preliminary step essential to the maintenance of an action was to be taken by the mortgagor, and it is...
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