117 Ky. 109 | Ky. Ct. App. | 1903
Opinion or the court by
Reversing.
It appears that E. D. Bybee was on the 3d of January, 1880, appointed public administrator and guardian for Barren county, Ky., and thereupon executed a bond as sucb, containing the usual covenants, with William Bybee, bis father, and Clinton Bybee, his brother, as sureties. After the execution of this bond, and in tbe same year, E. D. Bybee received as sucb guardian $190.13 belonging to tbe appellee, who was then an infant, and arrived at the age of 21 years in the month of June, 1891. She within two or three years afterthatmarriedone Poynter. Her former name was Kinslow. In the month of October, 1891, her guardian made a settlement with tbe county court, and it was ascertained that he then was indebted to appellee in the sum of $248. E. D. Bybee then gave her a mortgage on two mules to better secure
Appellee moved to dismiss this appeal, claiming that the principal of the judgment is less than $200, and that for that reason this court has not jurisdiction. This appeal is from a judgment enforcing a lien on real estate, and this court has jurisdiction. See the case of Fowler & Guy v. Pompelly (26 R., 615; 76 S. W., 173, and cases therein cited. Section 2521, Ky. St., 1899, says that the right of action upon the official bond of a guardian shall not be deemed to have accrued before the ward attains the age of 21 years, Section 2550, Ky. St., 1899, says that a surety for a guardian shall be discharged from all liability as such when five years shall have elapsed, without suit, after the accruing of the cause of action. It is agreed that appellee arrived at the age of 21 years in the month of June, 1891. Therefore her right
Under the statutes and facts as they appear of record, it was error to render judgment in favor of appellee against the executors of William Bybee and Clinton Bybee, the sureties of R. D. Bybee. It appears, however, that the court did not subject any part of the interest of R. D. and Clinton Bybee in the house and lot above mentioned to the payment of of appellee’s judgment. This was correct with reference to the interest of Clinton Bybee, but error in not subjecting R. D. Bybee’si interest, as he was the principal, and the claim was not barred as to him,
It'was clearly erroneous to render judgment against George Bybee, and subject his interest in the house and lot to the payment of appellee’s claim. He had not signed the guardian’s bond, and had made no promise or agreement to pay this claim. His only liability thereon existed by virtue of the provisions of sections 2084, 2089, Ky. Stats., 1899, and the fact that he had' received, as devisee, a portion of his father’s estate. When this action was brought, in 1902, his father’s estate was not liable. The claim was barred by the statute of limitations, and he had the same right to interpose the plea of limitation, and with the same effect, that his father could, if he had then been living. The case of Hopkins, etc., v. Stout, 6 Bush, 377,' was where Stout
Appellee, in her reply, alleged that long prior to the accrual of her cause of action, George Bybee was a nonresident of the State of Kentucky, and continued such until the bringing of her suit. The proof shows that he became, a nonresident of this State about the year 1877, which was prior to the execution of the bond, or before any of the Bybees were liable to appellee for anything," and that he had continued to be a nonresident of this State and a resident of the State of Missouri ever since that time. Section 2531, Ky. Stats., 1899, in part says: “If at the time any cause of action mentioned in the third article of this chapter accrues against a resident of this State,” etc. Section 2532, Ky. St., 1899, says: “Where a cause of action mentioned in the third article of this chapter accrues against a resident of this State, and he by departing therefrom, or by absconding or concealing himself, or by any other indirect means, obstructs the prosecution of the action, the time of the contin
For the reasons indicated, the judgment of the lower court is reversed, and cause is remanded for further proceedings consistent with this opinion.