51 Ky. 87 | Ky. Ct. App. | 1851
delivered the opinion of the Court.
This action of assumpsit was brought in the names of Jonathan Tivebaugh, Solomon W. Tivebaugh, Jesse Tivebaugh, and John Tivebaugh, against the executor of H. Brent, dec’d., to recover usury, which the plaintiff’s alleged they had paid his testator in his lifetime.
It appeared from the evidence upon the trial that Jacob Tivebaugh died indebted to Hugh Brent in the sum of two hundred and ninety-one dollar's, thirty-nine cents, a considerable part of which was usury. And that in September, 1841, after his death, the notes that Brent held for the debt, were taken up by Jonathan Tivebaugh and Solomon W. Tivebaugh, the executors of Jacob Tivebaugh, dec’d., and paid by them, by the execution of their individual note to Brent for the amount, in which note, the two other plaintiff’s Jesse and John Tivebaugh also joined as co-obligors. The note executed by them was joint and several. It had been paid to Hugh Brent in his lifetime, as was proved by receipts endorsed upon it, and signed by him. The first payment of one hundred dollars, was made by Solomon Tivebaugh, another payment of the same amount was subsequently made by Jonathan Tivebaugh, as stated in the receipts. The receipts upon it did not show by whom the balance of the debt had been paid. There was no other evidence upon the trial in relation to the payment of the note, or the manner in which it had been made. The parties having dispensed with a jury and submitted the law and facts of the case to the Court, and a judgment having been rendered against thé executor, he has prosecuted a writ of error to this Court.
Two questions are made in the case. First. Did the testimony authorize the plaintiffs in the Court below to maintain a joint suit for the money paid? Second. Did the transaction in 1841, amount to a payment of the usury, so that this suit which was not brought until more than five years after that time, was barred so far as its object was to reclaim that usury, by the statute of limitations, it having been plead and relied upon; or did the right to reclaim the usury arise upon the payment of the last note and not previously?
As it respects the first question, the right to maintain a joint suit, depended upon the payment of the usury by the parties jointly, or out of a joint fund. If the payment were made by two of them only, and-not with money belonging to all of them, a joint suit could not be maintained by them. So far as the usury was paid by any one of the obligors, out of his individual means, he had a separate right to it, and could only maintain a suit for it in his own name. Did the evidence in this case authorize the presumption that the money had been paid by the obligors jointly or out of a joint fund? No such presumption in our opinion, can be indulged from the manner in which the payments were made, or from the nature of the transaction. It must be inferred from the facts proved that two of the obligors were the principal debtors, and the other two were sureties only. The two first payments credited, were made by the principal debtors, and the probability is, that they paid the balance of the debt. There was no testimony from which it can be inferred that the sureties paid any part of it, or that any part of it was paid with the joint funds of the obligors.
The doctrine is well settled, that a misjoinder of plaintiffs in assumpsit, is fatal to the action, and that no judgment can be rendered for them, if the evidence upon the trial fails to establish a joint cause of action.
In regard to the secoq.d question, it appeared in addition to the facts already stated, that when the executors of Jacob Tivebaugh executed their individual note for the debt of their testator, that Hugh Brent execu
Wherefore the judgment is reversed and the cause remanded fora new tiial and further proceedings con.-sistent with this opinion.