Joyce v. Means, 41 Kan. 234

Joyce v. Means

41 Kan. 234 | Kan. | 1889

The opinion of the court was delivered by

Valentine, J.:

On March 24,¡1874, the plaintiffs, Thomas Joyce and Mary Joyce, who were husband and wife, mortgaged certain real estate to the defendant, Thomas Means, and on. December 19, 1874, the mortgage was duly recorded. In December, 1876, the mortgage indebtedness was duly paid and discharged, but the defendant failed to discharge the mortgage of record. About the month of December, 1880, the plaintiffs demanded of the defendant that he should discharge and release the mortgage of record, and the defendant agreed to do so, but still failed. The plaintiffs afterward and on several different occasions further requested the defendant to enter satisfaction of record of the mortgage, and at each time he agreed to do so, but has in all cases failed, and has never done *235so. Afterward, but just when is not shown, the plaintiffs commenced this action to recover the penalty prescribed by § 8 of the act relating to mortgages. It appears, however, from the findings of the court below, that some of these demands were made more than one year prior and some of them within less than one year prior to the commencement of this action. Section 8 of the act relating to mortgages provides that where the mortgagee or his assignee shall, after satisfaction of the mortgage and after demand, fail to enter satisfaction of the mortgage of record or to cause the same to be done, the mortgagor or his grantee or heirs shall have a cause of action against such mortgagee or assignee to recover $ 100 as damages, and the defendant claims that the cause' of action thus created and given is a statutory “penalty or forfeiture” within the meaning of the fourth subdivision of §18 of the civil code, which provides that a party shall have- only one year within which to commence “an action upon a statute for a penalty or forfeiture;” and therefore the defendant claims that the cause of action in the present case was barred before this action was commenced. The court below found and held that the plaintiff’s cause of action was barred, and we thinlr rightly. We think the action is for the recovery of a penalty given by statute, although the statute giving the action designates the thiug to be recovered as damages. We have heretofore designated these damages as a penalty. (Thomas v. Reynolds, 29 Kas. 304; Perkins v. Matteson, 40 id. 165; same case, 19 Pac. Rep. 633; Hall v. Hurd, 40 Kas. 374; same case, 19 Pac. Rep. 802.) And such has always been the view of this court. This case was not only not commenced within one year after the mortgage debt was paid and satisfied, but it was not commenced within one year after the first demand was made by the plaintiffs that the defendant should enter or cause to be entered satisfaction of the mortgage of record. The plaintiffs, however, claim that as they subsequently made other demands, some of which were made within less than one year prior to the commencement of this action, they thereby, in some manner, prevented the statute of limitations from so *236operating as to bar their present supposed cause of action; that they either created a new cause of action, or revived or resuscitated their former cause of action, or at least rejuvenated their old cause of action and by that means so extended its life that no statute of limitations has intervened to bar a recovery. We do not think that this view can be correct. A party can have only one cause of action under the statute or for the penalty prescribed by the statute, and as soon as that cause of action accrues or is brought into existence the statute of limitations certainly commences to run against it and continues to run unless the running thereof is prevented by something provided for by the statute itself, as disability on the part of the plaintiffs, or absence from the state on the part of the defendant, or some other thing. (See Civil Code, §§19, 21.) Nothing has intervened in this case to prevent the statute of limitations from running, or to suspend its operation.

The judgment of the court below will bé affirmed.

All the J ustices concurring.