Root v. Rowland

155 S.W.2d 203, 287 Ky. 728, 1941 Ky. LEXIS 634

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 14, 1941
• Status: Published

Opinion

Opinion op the Court by

Judge Cammack

— Affirming.

In September, 1932, M. F. Root and Ms wife, Belle Root, executed a $1,000 note, due and payable one year after date, to Henry Rowland. Tbe note was secured by a mortgage on real estate and was never negotiated. Rowland instituted tbis action some four years after tbe note became due in September, 1933, and tbe trial resulted in a judgment in bis favor. It was directed tbat tbe interest of M. F. and Belle Root in tbe land covered by tbe mortgage be set aside and sold to satisfy tbe indebtedness. Other parties with interests in the land were made parties defendant, and tbe judgment directed tbe manner in wbicb those interests should be allotted. But we are concerned only with tbe rights of M. F. and Belle Root, since they are tbe only parties who objected and excepted to tbe judgment and prayed an appeal to tbis Court, wbicb was granted.

They urge reversal upon tbe following grounds:

“(1) Limitation was tolled ere tbe institution of tbis action.

“(2) If maker can waive non-payment of bis obligation, tbis action is futile.”

“(3) Tbe signatures of tbe female appellant to tbe writings declared upon herein, were procured by extortion, force and duress.”

It is insisted tbat the note sued on was a negotiable instrument and tbat tbe five year limitation period (Section 2515, Kentucky Statutes) began to run from tbe date tbe note was made; but Section 2514 of tbe Statutes applies, since tbis was a promissory note wbicb was never negotiated. Alexander v. West, 241 Ky. 541, 44 S. W. (2d) 518. But, even if tbe appellants were correct as to the applicability of tbe five year statute, tbe suit was brought in time, because no cause of action accrued until tbe note became due. Alexander v. West, supra; Taylor v. Payne, 276 Ky. 79, 122 S. W. (2d) 964.

Tbe basis of tbe second contention is tbat tbe note wbicb was prepared on a bank note form contained this sentence: “Tbe drawers, securities and endorsers severally waive presentation for payment, protest and nonpayment of tbis note.” Obviously, this provision fur nishes no basis for the contention that the Roots were excused from paying the note.

We have examined the record carefully and have failed to find that Mrs. Root’s signature to the note and mortgage was procured by extortion, force and duress. She admits that she signed the instruments, but says that: “It had me torn all to pieces, yes it did.” She says she had been sick for some time before Rowland and a deputy clerk came to her house for the purpose of obtaining her signature and that they harassed her for about an hour before she finally signed. She said that she got so mad, “I told them I could and would sign it, but that I wanted them every one to know that I am signing it but it is against my will. ’ ’ Rowland and the deputy clerk testified that they did not force Mrs. Root to sign the instruments against her will, and her husband testified that he did not think there would have been any question of her signing the mortgage if it had not covered all of their property, including the homestead. There is testimony to the effect that Mrs. Root did not object to signing the mortgage after a provision was included therein to the effect that the Roots reserved the right to select the part of their land to be sold in order to satisfy their indebtedness to Rowland (if it became necessary to sell any of it). Rowland’s daughter testified that Mrs. Root told her that she had signed the note and mortgage. While Mrs. Root said that she signed the mortgage against her will, we think the proof and circumstances to the contrary clearly warranted the chancellor in finding that she did not so do. We are disposed to follow his ruling. Lashley v. Lashley, 276 Ky. 689, 125 S. W. (2d) 247, and cases cited therein.

Judgment affirmed.