Round v. Donnel
5 Kan. 54
Kan.
1869
Check Treatment

By the Court,

Kingman, C. J.

The only question in this.case is whether the claim of the plaintiff below was barred by the statute of limitations. On the 22d day of May, 1862, Ezra Round being indebted to Donnel & Saxton in the sum of $433.51, proposed to them to give his note for that amount, and secure the same by mortgage on a piece of land in Doniphan county, provided he could obtain a long credit on the .debt. This was acceded to on the part of Donnel & Saxton, and the note was immediately drawn up, payable one day after date,, bearing interest at ten per cent., to be compounded annually. The time stipulated *56for was to be secured by an obligation of Donnel & Saxton, that Round should have five years in which to pay the debt; and if paid in two years, was to pay but six per cent, interest thereon. This obligation was not signed till the next day, when the mortgage was prepared. This transaction was in St. Joseph, Missouri, and as the land and Elizabeth Round, the wife of Ezra, were in Kansas, the mortgage was not fully executed and acknowledged till ,the 17th day of June, when Round delivered the mortgage and took the obligation from Donnel & Saxton, above referred to.

This suit was brought on the 11th day of December, 1867. In the petition all the above facts are set forth in <■ detail, and fully appear in the evidence preserved in the record.

Limitation of Actions. The plaintiff in error raised the question of x x ^.]ie application of the statute of limitations by demurrer, by answer and by the instructions which they asked, and now complains that the court below erred in its several rulings in that behalf.

Contracts : Entirety. We do not think so. The note of Round and obligation of Donnel & Saxton, together with the mortgage, were the evidences of the agreement between the parties, and must be treated by the courts as they were by the parties, as one agreement.

They were as much so as though the note and the obligation had been included in one instrument, stipulating that Round should pay the debt in one day, but that Donnell & Saxton should not enforce the agreement for five years. There is no contradiction or conflict in the two instruments. Taken together, Round can pay when he pleases; if he pays within two years, he pays a less rate of interest than stipulated in the note; but in no *57event can. the obligees enforce the payment of the note within five years. The whole matter was a proper subject of a contract. The stipulations are plain, and under them no right of action accrued to Donnel & Saxton till the expiration of five years from the maturity of the note. Had they sued sooner, the obligation would have been a perfect answer to the suit. Therefore the statute was no bar to the recovery of the plaintiffs below.

Frauds:Statute of Nor is the statute of frauds applicable, as is * suggested by the plaintiffs in error. They are charged upon writings signed by them, and not upon the obligation to give time. That obligation imposes no duty on them; it only extends to them a stipulation as to time, which so far modifies the rights given by the note to defendants in error as to postpone their right of action for five years, and until the right of action accrued the statute did not begin to run.

The decision of the court below must be affirmed.

All the justices concurring.