Citation Numbers: 32 Ky. 471
Judges: Nicholas, Underwood
Filed Date: 11/17/1834
Status: Precedential
Modified Date: 7/29/2022
At the Fall Term, 1333, Judge Nicholas delivered an opinion, reversing this case. A rehearing was granted, and the reargument took plae.e, during the last. Spring- Term.
now delivered the following Opinion
Form&n filed a bill to foreclose a mortgage executed by Throckmorton, after a lapse of more than twenty years. Hunt &o., vendees of Throckmorton, resist the demand set up, upon the presumption of payment resulting from lapse of time, and insist, that time alone constitutes a bar to the relief sought.
Forman attempts to escape the effect of time upon his demand: first, upon the ground that he was a non-resident ; and secondly, upon the ground that Throckmorton was insolvent.
Since the repeal of the savings in our statutes of limitations in favour of non-residents, it may be well doubted whether the chancellor should, in any case, put a nonresident complainant upon a more favorable footing than a resident; but if there still exists an exception in favour of non-residents, Forman has not shewn himself entitled to it. He was in this state when the mortgage was executed. That, at least, is the legal presumption ; for how else was the note .and mortgage executed and delivered? He does not allege lie was not here upon the execution of the note and mortgage. When he left the state does not appear. He may have remained here ten years, and have made a dozen visits since, for ought this court knows. After so long a delay, it was his duty by positive averment to shew every fact necessary to account for the delay ; and this should be done in his bill,
Decree reversed, and cause remanded with directions io dismiss the bill (Chief Justice dissenting.)