49 Ky. 199 | Ky. Ct. App. | 1849
delivered the opinion of the Court.
The third section of the act of 1838, (3 Stat. Law, 559) declares that after first July, 1838, sureties on all written obligations other than those provided for in the first and second sections of that act, shall be discharged from all liability on such obligations when seven years shall have elapsed without suit, after the cause of action accrued thereon. The discharge given by this act is legal, and not equitable.,. Like the ordinary statute of limitations in actions of assumpsit, and other actions at law, if the defendant,fails to plead at law, he cannot afterwards in a suit in equity, be permitted to rely on the lapse of time; so in this case, the defendant might have plead at law, the lapse of seven years from the time when the cause of action accrued, and thus have defeated the plaintiffs action; but not having availed himself of that privilege, he now- speaks too late, and cannot be heard in a court of equity.
The complainant, William Caldwell, is not therefore entitled to relief, because of the failure of the obligee to sue, at law, until seven years had elapsed after the note became due. But, by reason of the other matters relied upon in his bill, he is entitled to relief in chancery, but not to the full extent of that given by the decree. The mortgage executed by John J. Caldwell to Willis and Cole, expressly conveys the land, negro, and personal property, to the grantees to secure the payment of the sums of money mentioned in the mortgage, “and to indemnify and keep secure his securities in the
We do not regard the proof as süfficient to show such a purchase of the land by Mrs. Willis* as can be enforced. If one was made, it was by parol, and is expressly denied by both the supposed contracting parties. All that the complainant can ask* is that the sum for which the land sold be appropriated as herein before suggested to the payment of the mortgage demands. Nor shall she be charged with the personal property used by John J. Caldwell. It does not appear that she had notice of the existence of the mortgage until after the crop had been consumed, and the personal property, which was of hut small value* had been wasted or used by the mortgagor. Besides this, the complainant had an interest in the mortgage* not indirectly or impliedly, but expressly secured to him; and he might have interferred, and, by proceedings in equity, have prevented the waste of the property-* real and personal;
But for the reasons herein suggested, the decree óf the Circuit Court is reversed, and the cause remanded, with directions to render a decree in conformity with this opinion.