93 Ky. 146 | Ky. Ct. App. | 1892
delivered the opinion op the court.
In January, 1885, tbe appellant, wbo was a housekeeper with a family, purchased one, hundred acres of land
The issue was tried, which resulted in a judgment for the appellee for the full amount of the note. Execution was issued on the judgment, and the one-third of an acre of land was sold under the execution. Afterwards a portion of the one hundred acres of land was sold to satisfy the balance, and the appellee purchased both pieces. The appellant and his wife then filed a petition in equity against the appellee, alleging that they had executed two mortgages on the land, which created a lien on the same, that was superior to any claim of the appellee
First, About ninety dollars of the account was created before the erection of the residential improvements on said land.
Second, That about eighty dollars of the account were for materials furnished in the erection of said improvements.
On the second ground it is sufficient to say that the appellee did not take the steps required by chapter 70, General Statutes, in order to preserve a lien on the land for the materials furnished; therefore,’ the appellee acquired no right that was superior to the appellants’ homestead right.
As to the first question, it appears the partial'payments made by the appellee were more than sufficient to pay the items of the account created before the erection of the improvements. Then the question is: Should said items be first extinguished by said payments? If yea, the ■appellant is entitled to his homestead as against the debt sued on. If nay, he is not entitled to a homestead as against said debt.
In accordance'with the foregoing views, the case of Pierce v. Sweet, 33 Pa. St., 157, says: “There was, no evidence of any appropriation by the debtors, none of any by the creditor. Nor were there any intended appropriations by the debtors. Nichols himself testifies that the payments were general, — that is, not on any particular account. When they were made there were no persons interested in directing an appropriation except the debtor and the creditors; no persons to be injured by any application. Neither of the parties then having made it, the law designates how the payments are to be applied; and, in such ease, it deems them to have been made first in discharge of the earliest liabilities of a running account.” The principle upon which this rule is founded is that, in such case, it allows the creditor to appropriate the partial payments upon such items of the account as are most precarious. In accordance with these views it was said, in the case of Hammer’s Adm’rs v. Rochester, 2 J. J. Mar., 144: “ In case of litigation, the chancellor would see that the payments were applied so as to effectuate justice. Thus, the chancellor should not apply the credits to the specialty debts and leave unpaid a simple contract which would thereafter be barred by the statute of limitations. The payment of debts likewise, in the order of time they became due, is a circumstance which should not be without its in
It seems to be the common law rule that the law applies partial payments in matters of running accounts to those items that are most precarious. And as the first items of the account may be first barred by the statute of limitatations, the partial payments must bo applied to them in the absence of an agreement or understanding to the contrary.
But, it is said that, as the application of the credits to the payment of the first items of the account would deprive the appellee, as creditor, of his recourse upon appellant’s land for the payment of his debt, he, if the rule announced prevails, deprives him of his right to make the application of the partial payments so as to protect him in his rights. In answer to that proposition, it is sufficient to say that in case of the exemption of property from execution or coercive sale for the satisfaction of debts, the rule that the partial payments shall be so appropriated as to protect the creditor, does not apply so as to reach property that would be otherwise exempt from execution or the coercive payment of debts, any more than such payments would revive a debt barred by time.
The one-third acre of land was a part of the homestead, and as the appellant is entitled to a homestead as against the said debt of the appellee, the judgment is reversed with direction to set aside the sale of the one-third acre of land and a portion of the hundred acres, and to allow the appellant a homestead therein as against the said debt of the appellee; but no homestead is allowed as against the said mortgage debts.