76 P. 390 | Kan. | 1904
The opinion of the court was delivered by
This is a proceeding to review the ruling of the district court in sustaining a demurrer to a petition which alleged substantially the following facts : In 1884 Lewis A. Reed and William S. Hodge, the owners of certain real estate, executed a mortgage upon it, securing a note to William Boardman. Reed afterward conveyed his interest in the property
It is contended by defendant in error that the demurrer was rightfully sustained because the action, having accrued more than three years prior to the filing of the petition, was barred by the statute of limitations. ■ It is argued that the allegation that defendant had been at all times a non-resident of the state is not sufficient to forestall the attack by demurrer, and Coale v. Campbell, 58 Kan. 480, 49 Pac. 604, and Investment Co. v. Bergthold, 60 id. 813, 58 Pac. 469, are cited in support of the argument. The former decision did not involve a question of pleading, and merely held that the fact of non-residence did not prevent the running of the statute. The latter con
In Kennedy v. Williams, 11 Minn. 814 (Gil. 219), the complaint was upon a note that had been due for more than six years (the limitation period). A partial payment was alleged, but its date was not given. The court said :
“But the complaint shows that a partial payment was- made at some time. For aught that appears, it might have been made at a date late enough to’ save the statute. It cannot, then, be said that the complaint, taken as a whole, shows upon its face that the cause of action was barred, nor that, for this reason, it fails to state facts constituting a cause of action.”
In Vose v. Woodford, 29 Ohio St. 245, suit was brought against one of three makers of a note that was barred unless saved by payment alleged to have been made in proper time. He demurred to the petition on the ground that it was not alleged that the payments were made by him. It was conceded that a payment by another maker would not prevent the running of the statute in his favor. The court said :
“There is no legal presumption or inference, from anything stated in the petition, that they (the payments) were not made by him. If made by him, the cause of action was not barred as against him. It is only where it appears affirmatively upon the face of the petition that the cause of action therein stated is barred by the statute that such bar can be pleaded by demurrer.”
These cases were cited and followed in Meyer et al. v. Binkleman, 5 Colo. 262. In Coney v. Horne, 93 Ga. 723, 20 S. E. 213, the question whether the statute had run depended upon when plaintiff's intestate became of age. The court said :
“It not appearing when Miss Taylor became of age,*159 or -that immediately upon her reaching her majority the alleged trust vested, we are unable to determine the exact time from which the eleven years should be computed; and, consequently, the declaration does not affirmatively show upon its .face that the cause of action is barred. This being so, the defense of the statute of limitations, if good at all, should have been made by plea, and not by general demurrer.”
In the case at bar the allegation of defendant’s non-residence is not equivalent to one of personal absence, for it cannot be said that a non-resident is presumed to be at all times absent from the state. But an allegation of continuous non-residence in this state, and continuous residence in Oklahoma, from a time prior to the accrual of the cause of action, may well be said to create a presumption of presence in Oklahoma, and consequent absence from Kansas, for a part of that period. This being true, the situation is the same as though the pleader had alleged that the defendant had been absent from the state a part of the time, without saying how much of it, since the cause of action arose. Within the reasoning of the authorities cited, we hold that this was sufficient as against a demurrer to show that the statute of limitations might not have run against the claim. If it could be known from the record or otherwise that plaintiffs, meaning to rely wholly upon the mere fact of non-residence, intentionally omitted from the petition direct allegations as to the defendant’s absence from the state, with the very purpose that the question whether his non-residence would suspend the operation of the statute might be determined, this court might doubtless be justified in holding the demurrer good. But the fact appears to be that such omission was inadvertent, and therefore a liberal rule of construction should be adopted. “Inadvertent omissions of facts
It is further argued that the judgment is no longer in force against defendant, both because it had been ■dormant for more than a year when this action was begun, and because it had been paid without notice being filed with the clerk of a claim for repayment, under section 480 of the code. But that notice need only be given where it is desired to preserve a remedy under the judgment itself (Fort Scott v. Railroad Co., 66 Kan. 610, 72 Pac. 238), and the present action is not founded upon the judgment, but upon the fact of its compulsory payment by the administratrix. Nor is it material whether the judgment was enforceable against defendant at the time it was paid. “If at the time the payment is made the-surety making such payment is himself legally bound to pay the debt, he may recover from the principal debtor or cosurety, although at the time the payment was made by him the principal or ‘ cosurety was discharged from the debt by limitation.” (Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528. See, also, Camp et al. v. Bostwick, 20 Ohio St. 337, 5 Am. Rep. 669; Martin v. Frantz, 127 Pa. St. 389, 18 Atl. 20, 14 Am. St. Rep. 859.)
It is also objected that the provision of the deed to defendant by which he agreed to assume the mortgage as a part of the purchase-money did not impose a personal liability upon him. The ground of this objection is not apparent. “The word ‘assumes’ in the deed is usually construed to mean the same as ‘ assumes to pay,’ and is therefore equivalent to a personal covenant by the grantee.” (20 A. & E. Encycl.
A final contention is that no right of recovery is shown in these plaintiffs, because there is no allegation that the estate was solvent, the argument being that if there were other claims against it that would have exhausted all its assets the heirs suffered nothing by the payment of this one by the administratrix. Such insolvency is not to be presumed, however. The presumption is, rather, from the order of the probate court for an assignment of the claim, that the debts were all paid; and the plaintiffs sue not merely as heirs, but as assignees of the administratrix.
The judgment is reversed, with directions to overrule the demurrer.