Rhodes v. Peoples' Savings & Building Association. the pay mortgage lien on certain real estate to secure ment thereof. It was alleged in the petition that Moses Rhodes, by deed May 5, 1896, conveyed to his wife, Rosa Rhodes, the real estate described in the mortgage, and that she, in consideration thereof, had agreed to pay plaintiff said debt. Afterwards an amended petition was filed, from which it appeared that Moses Rhodes had repaid the plaintiff the balance due on nineteen shares of stock in said association, which left said Rhodes the owner of only ten shares. It appears from the record that twenty-six shares was the whole number of shares subscribed for by said Rhodes. At the May term, 1897, the appellant filed an answer, which it seems was intended to plead usury, and asked that plaintiff be required to file a statement of all moneys borrowed claimed for herein, dates thereof, and all payments thereon, with date of same, and that all payments be calculated at 6 per cent. interest, and that interest on plaintiff's claim be calculated at 6 per cent., and properly credited on said debt. At the May term, 1897, plaintiff filed another amended petition, in which it was more fully averred that the real estate mortgage had been conveyed to appellant under her promise and agreement to pay the debt sued on herein. Moses Rhodes filed an answer, which we consider an insufficient attempt to plead usury, but not traversing the other averments in the petition. At the January term, 1898, 1898, the plaintiff dismissed, without prejudice, this action as to Moses Rhodes, and on the 15th of January, 1898, the appellee obtained judgment against appellant for $871.52, besides interest, and also a judgment enforcing its lien upon the real estate mentioned herein. Rhodes v. Peoples' Savings & Building Association. In February, 1898, Moses and Rosa Rhodes filed a pe tition and motion for a modification of the judgment here. inbefore entered, for errors appearing on face of the papers. The material part of the petition so filed alleges that appellee advanced to defendants $2,600, and issued to them twenty-six shares of stock at $100 per share, and that on January 1, 1897, all interest, dues, etc., had been paid, and there was owing on all the stock only $871.50; that the amended petition of plaintiff filed admits that defendant, at the time, to-wit, on January 1, 1897, the whole amount owed on nineteen shares of said stock had been repaid. They asked that this error be corrected, and said judgment of $871.50 be credited by $19.26 thereof, which would leave plaintiff entitled to a judgment of $234.64. Several other reasons were given, based upon the pleadings, which Rhodes contended entitled them to the relief prayed for. While the case was being heard on the petition, the plaintiff was given time to file a response, and the response was allowed to be filed notwithstanding the objection of defendants. The substance of the response is that by mistake of the draftsman "nineteen" was written instead of "sixteen." The motion of defendants was finally overruled, and from that judgment, as well as from the original judgment, Rosa Rhodes prosecutes this appeal. We are not of the opinion that the answers of the de fendants presented sufficiently the plea of usury; hence the court did not err in disregarding said answers. Nor do we think the court erred in allowing the response to be filed, as, taking the entire record together, it seems to us that City of Louisville v. Meglemry. the judgment was not in conflict with the pleadings. It will be seen that the court below repeatedly offered to allow appellant to plead further, which she declined to do. There is no denial of plaintiff's averment that the mortgaged property had been deeded by Moses Rhodes to appellant upon her agreement and undertaking to pay the debt in question. It therefore follows that the debt became her debt, and not simply the debt of her husband. It is, however, insisted by counsel for appellant that the court erred in adjudging a sale of appellant's land without the husband being a party to the suit, and we are referred to the statute which provides that the wife can not sell her real estate independently of her husband, and from that it is argued that he is a necessary party to the proceeding to sell her land under the judgment of a court. We do not think such a contention is tenable. We perceive no error in the proceedings prejudicial to the substantial rights of appellant. The judgment is therefore affirmed. CASE 22-ACTION ON TAX BILLS-OCT. 14. City of Louisville v. Meglemry. APPEAL FROM CHANCERY DIVISION OF JEFFERSON CIRCUIT COURT. LIMITATION.-An action which is instituted in time, and upon which summons issues and is served, is not barred by limitation merely because after the statutory period the plaintiff files an amended petition curing formal defects in the original petition. City of Louisville v. Meglemry. H. L. STONE FOR APPELLANT. The action was not barred. Ballou v. Wilmot, 5 Ky. Law Rep., 774; L. & N. R. R. Co. v. Smith, 87 Ky., 501; Jones v. Jones, 5 Ky. Law Rep., 774; Slayden v. McDonald, 15 Ky. Law Rep., 28; Louisville Hotel Co. v. Tayior, 10 Ky. Law Rep., 150; Herold v. Fisk, 16 Ky. Law Rep., 63; Pindell v. Maydwell, 7 B. Mon., 314. No appearance for appellee. JUDGE HOBSON DELIVERED THE OPINION OF THE COURT. Appellant sued appellee on tax bills for the years 1884, 1885, 1886, and 1887. The suit was filed December 20, 1887. The summons was issued December 30, 1887, and executed on appellee January 4, 1888. On July 2, 1888, the appellee filed a demurrer to the petition. No further steps were then taken until March 29, 1897, when the case was set at rules by appellant's attorney. An amended petition was filed on April 3, 1897. Appellee then filed an answer pleading the statute of five years' limitation in bar of the action. A demurrer to this answer was filed and overruled, and after appellant filed its reply, which did not avoid the plea of limitation, the court dismissed the action. More than five years had elapsed from the time the cause of action accrued until the amended petition was filed; but as it only cured cured certain formal defects in the petition, and stated no new cause of action, the plea of limitation was not well taken, unless the failure to prosecute the action with diligence from the time the demurrer was filed on July 2, 1888, until the case was set at rules on March 29, 1897, set the statute in motion. Limitation is not a favored plea. He who relies on it must bring himself within the letter of the statute. An action is brought, under section 2524, Kentucky City of Louisville v. Meglemry. Statutes, "at the date of the first summons or process issued in good faith from the court or tribunal having juris diction of the cause of action." This is a part of the act regulating limitation of actions, and must be read in connection with section 2515, which applies to actions of this character, and provides that the action must be commenced within five years next after the cause of action accrued. Appellee appeared in the case and joined issue by filing her demurrer. The subsequent lapse of time is not within the letter of the statute, and, the question being between the original parties, the action was not barred by time. In Wood on Limitation, section 290, it is said: "If the action is commenced in season, the statute is saved, without any reference to the question whether the plaintiff used any diligence in its prosecution." Sée, to the same effect, Chicago, &c., Railway Co. v. Jenkins, 103 Ill., 588; Ballou v. Wilmot, 5 Ky. Law Rep., 774. This court has often held that the bar of the statute must be complete when the action is brought, and that the action is commenced when the petition is filed, and summons issued in good faith upon it. (Fenwick v. Phillips, 3 Metc. (Ky.) 89; Trabue v. Sayre, 1 Bush, 129; L. & N. Railroad Co. v. Smith's Admr., 87 Ky., 501 [9 S. W., 493].) The case of Clark v. Kellar, 3 Bush, 223, is not in conflict with these authorities. The language of the court in that case must be taken with reference to what the court had before it. The plaintiff there filed his suit in time, but the summons being returned "Not found," took out no alias for nearly five years. The jury returned a special finding that the suit had not been prosecuted in good faith, which was equivalent to a finding that the last summons was the first that was issued in good faith upon the petition. The |