51 Kan. 341 | Kan. | 1893
The opinion of the court was delivered by
On March 13, 1889, the plaintiffs brought án action against the defendants in the district court of Bourbon county, to foreclose a mortgage executed by S. H. Kulp and wife upon 320 acres of land situate in Bourbon county. In the petition, it is alleged that the mortgage was given to secure a promissory note executed by S. H. Kulp in favor of Daniel Kulp and Samuel Stauffer, on April 1, 1872, by which he promised to pay, one year after date, the sum of $3,000, with interest at 6J per cent. It is alleged that no part of the principal and interest has been paid, and that there is due the sum of .$6,305. It is further alleged, that S. H. Kulp, the maker of the note, removed from Kansas in September, 1874, and was personally absent from the state ever afterward, living in the state of Illinois until the year 1877, when he removed to Iowa, where he died in September, 1879, leaving as his only heirs his widow and seven children, among whom were two of the defendants, Myron.
The facts in this case bring it within a line of decisions which fully sustain the ruling of the district court. The note secured by the mortgage matured more than 20 years ago, and was 17 months overdue before the maker removed from the state of Kansas. No steps were taken to enforce its collection until about 16 years after a right of action thereon accrued, nor until about 10 years after the death of the maker. Of course his death suspended the operation of the statute until an administrator could be appointed, and none could be appointed at the instance of the plaintiffs until the time expired within which the widow or next of kin are given the preferred right to take out letters. After the lapse of 50 days plaintiffs
“If the plaintiff below had availed himself of the means which the law provides for prosecuting his claim, he could have taken action as soon as 50 days had elapsed after the death of his alleged debtor. If a creditor would save his debt from the statute bar, he should take out administration himself. . . . The reasonable time within which a creditor, having a claim against a decedent, and wishing to establish the same against his estate, should make application for administration, would be under the statute 50 days after the decease of the intestate, or at least within a reasonable time after the expiration of 50 days. But a creditor caunot, as in this case, postpone the appointment for months and years, and then recover upon his claim.”
The same subject was recently considered by the supreme court of the United States in the case of Bauserman v. Charlott, 13 Sup. Ct. Rep. 466. It was there held, that while the death of the debtor operated to suspend the statute of limitations, it was not an indefinite suspension, and the creditor could not extend the time of limitation by failing to apply
“The decision was evidently deliberately considered and carefully stated, for the purpose of finally putting at rest a question on which some doubt existed. It is supported by satisfactory reasons, and is in accord with well-settled principles, and there is no previous adjudication of that court to the contrary.”
We think the demurrers were rightly sustained by the court, and its judgment will be affirmed.