106 Kan. 804 | Kan. | 1920
The opinion of the court was delivered by
On September 2, 1911, Charles Miles and Anna Miles executed to a bank a note and real-estate mortgage for $2,250, due in two years. Shortly afterwards they conveyed, the land to a grantee who assumed the payment of the note and mortgage and later conveyed to J. A. Hamilton, who made a like assumption. Charles Miles and Anna Miles purchased the note and mortgage from the bank at the face value and on September 2, 1918, brought an action thereon against Hamilton, setting out these facts. A demurrer to their petition was sustained on the ground that its allegations showed the statute of limitations to have run. An amended petition was filed on February 1, 1919, to which a demurrer was likewise sustained on the same ground. The plaintiffs appeal from the latter ruling.
1. A preliminary question is raised by a contention of the defendant that as the plaintiffs did not appeal from the order sustaining the demurrer to the original petition and the time for such an appeal has expired, that ruling has become final and amounts to an adjudication that the facts relied upon by the plaintiffs as preventing the running of the statute, which were in substance set out in the first petition as well as in the second, do not have that effect. Of course no judgment was rendered upon the sustaining of the first demurrer. When that ruling was announced it was proper practice for the plaintiffs to take leave to amend, even if the purpose were merely to amplify or clarify the allegations already made. Having elected to file an amended petition, they could not appeal from the order sustaining a demurrer to the original pleading, for
2. The dates already given show that the action was begun just within the five-year period following the date named in the note for its payment. The mortgage, however, provided that if any interest should not be paid when due the whole of the debt, principal and interest, should immediately become due and payable. By the terms of the note a year’s interest matured September 2, 1912, but no payment of any kind was made until June 21, 1913, when $1,000 was paid to the plaintiffs, being applied to the first year’s interest and a part payment on the principal.
By. the language of the acceleration clause referred to the default in the interest payment of its own force, without any declaration, notice, or exercise of an option on the part of the creditor, matured the entire debt, and started the running of the statute of limitations. (National Bank v. Peck, 8 Kan. 660; Snyder v. Miller, 71 Kan. 410, 80 Pac. 970; 17 R. C. L. 771.)
In the amended petition an allegation that the $1,000 payment was accepted by the plaintiffs in payment of the first year’s interest and as a prepayment of part of the principal, is followed by the recital: “all defaults by the mutual consent of all parties herein and thereto being waived.” Doubtless the pleader intended by these expressions to give his conception of the legal effect of the payment and its application, since no other concrete fact is stated. No waiver of any kind could result merely from the acceptance of a part of an overdue indebtedness. And even if the allegations could by great liberality of interpretation be regarded as amounting to a statement that an extension of the time of payment to the date of the original maturity had been expressly agreed to, an agreement to that- effect would not be binding on the creditor because not supported by any legal consideration (8 C. J. 435-436), and if it did not bind him it could not impair the debtor’s privilege of relying upon the statute of limitations. When the indebtedness matured by the default in the interest payment, it became due for all purposes. The
3. The plaintiffs contend that a written acknowledgment sufficient to make a new starting point for the statute resulted from the fact that in response to a letter from the plaintiffs to the defendant stating that the balance of the note and mortgage for $2,250 which he had assumed and agreed to pay, and on which he had already paid $1,000, was past due and that they wanted him to pay it, he sent an answer on April 19, 1914, reading as follows:
“Your letter received and am very much disgusted with the ones who are owing' me. I am doing all I know to do to get some of the money as soon as possible but with no success so far. It seems almost impossible to get money as close as everyone is here this year. I am working a deal now to try and get part of the place in trade so I can arrange to get part or all of your amount. I am very sorry to have had to put this off on depending on what I had due me and expected to get long ago; however, I am going to make some kind of sale or deal on that place if it does lose me considerable, so I can meet your mortgage without much longer delay, hoping to do so before this may cause you more annoyance.”
The established test of the sufficiency of a written acknowledgment to affect the running of the statute is that it “must be an unqualified and direct admission of a present subsisting debt on which the party is liable.” (Haythorn v. Cooper, 65 Kan. 338, syl. ¶ 2, 69 Pac. 333.) A comparison of the phraseology of the writing just quoted with that of others to which this test has been applied would hardly be profitable, inasmuch as in each instance the language used is sufficiently unlike that employed in other cases to present a problem peculiar to itself. The court does not regard the defendant’s letter as capable of being construed as a direct admission of his liability on the indebtedness secured by the mortgage, even if he had been the maker of the note. But here the solution of the question is aided by the fact that the defendant’s obligation arises from the assumption of the debt inserted in the deeds through which he acquired title. His letter
The judgment is affirmed. •
