Whipple v. Johnson

• Decision Date: 18 February 1899
• Citation: 49 S.W. 827
• Parties: WHIPPLE v. JOHNSON.
• Court: Arkansas Supreme Court

49 S.W. 827

WHIPPLE v. JOHNSON.

Supreme Court of Arkansas.

February 18, 1899.

Appeal from Pulaski chancery court; Thomas B. Martin, Chancellor.

Bill by M. H. Johnson, as administrator of the estate of Mary Martin, deceased, against Susan E. Whipple, to foreclose a mortgage. From a decree in favor of complainant, defendant appeals. Reversed.

Hill & Auten, for appellant. W. S. & Farrar L. McCain, for appellee.

WOOD, J.

On the 21st of July, 1891, appellant executed a mortgage upon her individual property to secure two notes of her husband to John Lafferty, administrator of the estate of Mary Martin, deceased. The first note was for $62.50, due three months after date; the second note was for $62.50, due six months after date. The notes were of even date with mortgage. The notes were also signed by Mrs. Whipple, with her husband, but it is conceded that the debts were the husband's. The notes and mortgage were given for the purchase money of the land mortgaged. Spencer Whipple, the husband, died in 1895, within four years from the date of the notes. John Lafferty having died, this suit is by appellee, his successor, to foreclose the mortgage.

The appellant pleads the statute of limitations as to the first note, and this presents the only question. More than five years had elapsed from the maturity of the first note (October 21, 1891) to the bringing of this suit, November 21, 1896. Under the decision of this court in Mortgage Co. v. Milam, 64 Ark. 306, 42 S. W. 417, no suit to foreclose or enforce the mortgage as to the debt evidenced by this note can be maintained. But it is claimed that the death of Spencer Whipple, which occurred in 1895, stopped the five-years statute of limitation on the first note, and that appellee should have the benefit of the statute of nonclaim. This contention cannot avail, for the reason that appellee fails to show that the statute of nonclaim was ever started as to the debt for which the mortgage is sought to be foreclosed. The complaint alleges that there was no administration upon the estate of Spencer Whipple. There is nothing, in other words, to show that appellee has brought this case within the statute of nonclaim. The general statute of limitation of five years as to notes would not cease to run until letters of administration were granted upon the estate of Spencer Whipple. Sand. & H. Dig. § 110; Worthington's Adm'r v. De Bardlekin, 33 Ark. 651. It appears from this record that the first note of $62.50 was...