110 Ky. 484 | Ky. Ct. App. | 1901
Opinion off the coijbt by
Affirming.
It appears from this record that appellant Brittain as principal, and appellee, B. B. Lankford, as his surety, became indebted to one W. T. Hall, administrator, in the sum of $90, and at the January term, 1867, of the Harlan quarterly court, said Hall obtained judgment against Brittain and Lankford for said debt, and on the 1st of February, 1867, Brittain paid on said judgment $29, and in September, 1871, Lankford paid the residue of said judgment, and took an assignment from Hall thereon to himself. In September, 1871, or January, 1872, Brittain, then being a resident of Kentucky, left the State, and went to the State of Virginia, where he remained until about 1885 or 1886, and then returned to Kentucky. On September 17, 1889, an execution was issued on said judgment flor the benefit ..of Lankford, and was returned, “No property found.” A transcript of the proceedings of the quarterly court was filed in the circuit court clerk’s office, and such proceedings were had that an execution was issued from the clerk’is office of the circuit court, and levied upon certain land as the property of Brittain, which was sold, and purchased by appellee, who afterwards obtained a sheriff’s deed therefor, and thereafter instituted proceedings, as provided by law, to obtain possession of the land so purchased by him. After various motions and orders were
The chief defense relied on by appellant is the statute of limitations. It is evident that the other defenses set up were insufficient. JBut it is earnestly, and with some plausibility, urged that appellee’s right to enforce the judgment was barred by the statute of limitations. It is evident from the evidence, as well as from the agreed state of facts, that no execution, was issued upon the judgment until more than fifteen years after its rendition and after its payment by Lankford. It is also evident that Brittain removed from the State of Kentucky after the payment by Lankford, and remained a non-resident of Kentucky until_ at least about 1884 or 1886, so that if his absence from the 'State is to be deducted from the fifteen-year statute, which as to residents of the State would bar appellee’s right to have an execution, then, in that event, the right of Lankford to have execution issued and collect the debt must be unquestioned.
It is, however, insisted for appellant that the statute of limitations applies only to actions, or, in other words, suits, to obtain judgment and force the collection of debts or demands against the defendant, and the reason for the exemptions in the statute of limitations is because the ■removal of the debtor obstructs the prosecution of the laction.
It is argued that the removal of a debtor in no wise obstructed or hindered the appellee in,obtaining an execution upon the judgment and collecting the same, if any property could be found subject to levy, and that it therefore follows that the delay of fifteen year® in causing an execution to issue is and was an absolute bar to appellee’s
The case of Davidson v. Simmons, 11 Bush, 330, is cited by appellee. In that case it appears that Simmons recovered a judgment against Davidson in 1848 in Warren county, where Davidson then resided, upon which an execution was issued in the same year, and returned, “No property found.” In 184-9, Davidson removed from the State, and continued absent therefrom ever since. In 1873, Simmons brought suit in equity to enforce a satisfaction of the judgment and sued out an .attachment, and levied it upon the interest of Davidson in the estate of his father, who had recently died in Warren county. Davidson interposed a plea of the statute of limitations, and insisted that, as there had been no execution upon the judgment for more than fifteen years from the date of the last execution before the institution of the suit, the judgment was barred by the statute, and that the suit could not be maintained. This court, however, held that the period of Davidson’s absence from the State should be deducted from the fifteen years; or, in other words,