Wey v. Schofield

53 Kan. 248

• Court: Supreme Court of Kansas
• Decided: January 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

JOHNSTON, J.:

This action was brought by W. H. Scho-field against H. C. Wey, to recover $200, as penalty for refusing, on demand, to discharge of record two chattel mortgages given by Schofield to Wey. The first of these mortgages was filed for record on October 20, 1886, and it is alleged that the debt for which it was given was fully paid and satisfied during the year 1886. The second mortgage was entered of record July 21, 1887, and it is alleged that the debt for which it was given was paid in full on October 26, 1888. The mortgages were not discharged of record, and no demand was made upon Wey to release them of record until January 9, 1890. This action to recover the penalty was brought on March 4, 1890.

While there is some contention that the whole of the debt secured by the mortgages had not been paid, the principal contention is that the action to recover the penalty has been barred by the statute of limitations. There being no limitation upon the bringing of the action in the statute imposing the penalty, it can only be brought within one year after the cause of action shall have accrued. (Civil Code, § 18, subdiv. 4.) Before an action can be maintained to recover this penalty, a demand must be made by the mortgagor for the release of the mortgages, but he cannot extend the statutory period of limitation by an unreasonable delay in making such demand. Much more than a year elapsed between the time of payment and when a demand for a discharge of record might have been made before the demand was actually made. The preliminary step essential.to the maintenance of an action was to be taken by the mortgagor, and it is generally held that a party who must take affirmative action to obtain a right or remedy cannot safely sit still when he might act, nor long delay the taking of such initiatory steps as would enable him to maintain an action and avert the ordinary penalty of delay. The statute of limitations “ will begin to run within a reasonable time after he could by his own act have perfected his right of action, and such reasonable time will not in any event extend beyond the statutory period fixed for the bringing of such an action.” (A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kas. 628; Rork v. Comm’rs of Douglas Co., 46 id. 175; Bauserman v. Charlott, 46 id. 480; Kulp v. Kulp, 51 id. 348; Bauserman v. Blunt, 13 Sup. Ct. Rep. 466.)

As the demand was not made until after the statutory period of limitation had elapsed, and no good excuse is given for the delay, it must be held that the mortgagor was too late in bringing the action. The judgment of the district court will be reversed.

All the Justices concurring.