88 Ky. 199 | Ky. Ct. App. | 1889
delivered the opinion oe the court.
This action is upon a promissory note. The defense of usury was interposed. The answer gives the appellee Crouch’s version of the history of the debt, stating, according to his side of the case, the various renewals, payments and changes of obligors.
The lower court, acting doubtless upon the idea that by the change of obligors at different times when the note had been renewed, as stated in the answer, there had been such a novation as to cut off the defense of usury, sustained a demurrer to it, and rendered a judgment for the appellant. It was replevied soon after, and then paid. An appeal was taken to the Superior Court by the appellee about
The latter claims that one S. D. Godman, with his father, Allen B. Godman, as his surety, obtained a loan from the appellant in 1857; that the note was renewed by them several times, various payments- being made; that after the death of the father in 1868, S. D. Godman, in 1869, renewed the note with Jerry and W. B. Godman and the appellee as his. sureties; that in 1873, W. B. Godman and the appellee ■ became the only sureties upon it, and that owing- to; payments, the- entire amount of the note then executed was usury, and that finally the note sued upon, dated March 5, 1878, and due twelve months thereafter, was given by way of renewal by W. B. Godman and the appellee, the original principal obligor, S-. D, Godman, not uniting in it.
Upon the other hand the appellant claims' that the debt of 1857 was settled in 1869, and that the note given in the latter year arose out of an entirely different transaction, and was based upon an altogether different consideration.
The distinguished counsel for the appellant attempts.
The next ground relied upon by the appellant was that the change of obligors, and the extension of time of payment for twelve months, was such a novation as to be equivalent to payment, and that therefore the plea of usury was unavailing, as limitation bars its recovery after the lapse of a year from its payment.
There was no new party introduced, however, by the execution of the last note. There was no new obligor or new obligee or new consideration; moreover, the claim upon which it was founded was not valid in law or equity. The principal obligor in the previous note was merely dropped; and it may now be regarded as settled law in this State that such a novation will not deprive the debtor of the plea of usury, if it has, in fact, been embraced in the new note. Any payments theretofore made will be treated as having been paid upon the principal and legal interest without regard to how they were, in fact, made or received. They will be
Finally, the appellant urges that as the appellee paid the judgment and did not appeal for about eighteen months thereafter, the statute- of limitation forbidding the recovery of usury, unless it be sued for within a year after the payment, applies, and prevents a recovery. General Statutes, chapter 7L, article 3, section 4.
The Civil Code, section 745, gives a party the right to appeal from a judgment at any time within two years from its rendition ; and the question now for the first time presented to this court is, whether, under these circumstances, the period of limitation as to the recovery of usury began to run from the time of the payment of the judgment. The unsuccessful party to the litigation had a right, as the successful party knew, to appeal at any time within two years. The rights of no third party were involved. It was a matter between the parties to the litigation only.
Even where real estate is aliened after a judgment by the successful party, and the interest of a third party thereby becomes involved, the right to appeal
Mr. Pomeroy, in his valuable work on Equity Jurisprudence, section 634, says: “Even a judgment in favor of the defendant does not necessarily at once terminate the Us pendens. If the unsuccessful party is entitled to appeal, the constructive notice continues during a reasonable time for an appeal to be taken.” Even in such a case, where the rights of third parties may be affected, if an appeal be taken within a reasonable time, the lis pendens is prolonged until the final decision, although there has already been rendered a judgment of a final character. (Debell v. Foxworthy, 9 B. M., 228; Clark’s Heirs v. Farrow, &c., 10 B. M., 446; Ludlow’s Heirs v. Kidd, 3 Ohio, 541.) In such a case the litigation is regarded as still continuing, at least for a reasonable time, notwithstanding there has been a final decree by a court of original jurisdiction.
In the case now before us, however, only the rights of the parties to the action are involved; and if the doctrine of Us pendens applies, the litigation should, from the necessity of the case and for the purpose of
The reasonable and obvious conclusion to our minds is, that the statute of limitation as to the recovery of usury could not commence to run while the judgment ■of the lower court allowing it was in force. This judgment said that there was no usury in the note sued upon; and until it was annulled the debtor could certainly take no steps to recover the usury, which the judgment required him to pay. He could only rid himself of it by an appeal; and he had an absolute statutory right to resort to it at any time within two years. A different view would practically deny to the party any benefit arising from his right of appeal, unless he were able to supersede the judgment.
It was the reversal of the judgment of the lower court which made the question of usury again an open one. Until then the matter was res judicata, and it therefore seems to us that the only statute of limitation which was running in the interim was that relating to the right to appeal. A judgment of a court of competent jurisdiction was in force, declaring there was no usury in the debt. It required the debtor to pay it. Certainly he could not in the face of it recover the money paid in satisfaction of it as usury.
If the rule applicable in case of the alienation of real estate involved in litigation, and where the rights of third parties become involved, covered his case, yet he would have a reasonable time within which to take an appeal; and this would pro tanto suspend the running of the statute, because it dates from the time of payment.
The judgment is affirmed.