October 5, 2012

Craig v. Gresham, Rockcastle, 1851

Craig vs. Gresham.

COURT OF APPEALS OF KENTUCKY

51 Ky. 401; 1851 Ky. LEXIS 83; 12 B. Mon. 401

December 16, 1851, Decided

PRIOR HISTORY:  [**1]  ERROR TO THE ROCKCASTLE CIRCUIT.

DISPOSITION: Decree affirmed.

COUNSEL: Lindsey, for plaintiff; Haley, for defendant.

JUDGES: CHIEF JUSTICE SIMPSON.

OPINION BY: SIMPSON

OPINION
 [*401]  CHIEF JUSTICE SIMPSON delivered the Opinion of the Court.

TWO QUESTIONS arise in the case presented by this record:

1. Does the fact that an execution has been issued and returned "no property found" on a judgment where one of the defendants is principal, and the other is merely a surety, excuse the failure of the creditor to sue out another execution, during a period of more than seven years, and take the case out of the operation of the statute of 1838? We decide that it does not have that effect. It does not come within the excepted cases mentioned in the statute, nor is there any good reason why it should have the effect contended for. The principal debtor may have had no property when the first execution issued, but a subsequent execution within the prescribed period, if issued, might have been satisfied out of property subsequently acquired by him, and thereby relieved the surety from his responsibility.
2. Shortly after the execution upon the judgment was returned "no property found," the creditor exhibited a bill [**2]  in chancery to enforce a vendor's lien upon a tract of land, and in that way to obtain satisfaction of the judgment at law, which was obtained on a note executed for the purchase money, and in that suit in chancery, which was still pending when this suit was tried, the principal debtor had resisted the relief prayed for, and insisted upon a rescission of the contract. The question then, is, whether the creditor, in consequence of the pendency of the chancery suit and the resistance made by the purchaser to the relief sought by him, is excused for his failure to sue out another execution  [*402]  upon his judgment at law. By the provisions of the statute, the surety is discharged when seven years shall have elapsed without execution upon the judgment, unless delayed by dilatory proceedings on the part of the defendants. The dilatory proceedings alluded to, are such as deprive the creditor of the right to issue an execution upon the judgment. If such right exist, notwithstanding a controversy may be pending in reference to the ultimate liability of the debtor for the amount of the judgment at law, still, as the creditor can issue an execution, it can not with any propriety be said [**3]  that he is delayed in having execution of his judgment by any dilatory proceedings on the part of the defendants, and the statutory bar applies.

Wherefore, the decree of the Court below is affirmed.

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