108 Ky. 180 | Ky. Ct. App. | 1900
Opinion op the court by
Reversing.
■This appeal was dismissed on motion of the appellees upon the assumption that the order appealed from was not a final order, and therefore not appealable. Afterwards the appellant filed a petition for rehearing, and upon a more careful consideration of the case it appears that the appellant claimed to be the owner in fee of a considerable portion of the land in contest, and the judgment appealed from held that said land was subject to sale to satisfy the claim of the appellees, and gave them priority over the appellant. Hence it follows that the judgment appealed from was a final order, so far as the title of appellant was concerned, and therefore the appeal must be entertained, and the former opinion dismissing the appeal is now withdrawn.
On the 25th of May, 1897, the appellee W. W. Ball and others instituted their action in the Mason Circuit Court against H. H. Cox and others. We copy as follows from the petition: “The plaintiffs, W. W. Ball, A. M. J. Cochran, Robert A. Cochran, James Cochran, William D. Coch
On December 7, 1897, the appellant filed his answer, which may be taken as a denial of all the averments of the petition which tended to show a right to enforce the mortgage liens set up by plaintiffs. It is also alleged: That, the Noi’thup, Braslan & Goodwin Company, on the 23d of July, 1897, made the following order on the back of their execution, to-wit: “The sheriff will return and the clerk will not reissue without further notice. July 23d, 1897. M. C. Hutchins, Attorney.” That since then no execution has been issued. That on June 9, 1897, the Storrs, Harrison Company and the Cleveland Seed Company also entered orders on their respective executions, directing the sheriff of Mason county to return them to the office of the clerk of the Mason Circuit Court; and that no executions have been issued on said judgments, or any of them, nor any sale made thereunder. It is further alleged that at the February term, 1897, of the Mason Circuit Court
The appellant has filed an extensive brief, citing many authorities to support his contention that the judgment complained of is erroneous in many respects and for many reasons. We can not concur with appellant’s contention that Ball should have required a suit to be instituted against himself or his principal, and judgment rendered, before he was authorized to pay. We think it clear that a surety, who is' in law bound to pay an obligation, has an undoubted right to pay the same, and to proceed against his principals or co-securities for indemnity or repayment.
It is very earnestly contended for appellant that the
Appellant has referred us to several cases' where a surety for the payment of money which was under the control of the court has been held to be released after the expiration of seven years from the time same was due; but an
It is the contention of appellees that the plea of the statute of limitation is a personal plea that a party may or may not rely upon at his option. Such contention is true where no,, person is to be affected except the'security. But it has been held time after time by this court that a surety paying an obligation from which he has been released acquires no right to recover the money back, although he in good faith believed he was bound therefor. And it is well settled that a party having an interest in property in dispute, oí claiming a lien thereon, may make any defense against a third party asserting a claim thereto that the real debtor or original owner could make; or, in other words, where two parties are asserting conflicting claims to land or a fund on account of a debt or demand against a third party, that either one of the adverse claimants can make any defense that the mortgagor or principal in the bond or debt could have made, and in this case appellant can make the same defense that Ball could have made if the beneficiaries of the bond had attempted to compel him to pay by reason of his suretyship on the bond. This record shows that, as between appellant and appellees other than Ball, his lien upon the land purchased by him was superior to that of said appellees. The court therefore erred in not so adjudging. For the reasons indicated, the judgment is1 reversed, and cause remanded, with direction to the court below to overrule the demurrer to the second paragraph of the answer as amended, and to adjudge that appellant’s lien upon the land purchased by him under his execution sale to the extent of