Cox v. Monday

• Citation: 264 Ky. 805,95 S.W.2d 785
• Parties: COX et al. v. MONDAY et al.
• Decision Date: 16 June 1936
• Court: Court of Appeals of Kentucky

95 S.W.2d 785

264 Ky. 805

COX et al. v. MONDAY et al.

Court of Appeals of Kentucky

June 16, 1936

Appeal from Circuit Court, Whitley County.

Action by Martha Cox and others against Ethel Monday and others wherein defendants filed a counterclaim. From the judgment Martha Cox appeals, and the defendants cross-appeal.

Judgment affirmed on the cross-appeal and reversed on original appeal with directions.

Stephens & Steely, of Williamsburg, for appellants.

C. B. Upton, of Williamsburg, and R. L. Pope, of Knoxville, for appellees.

Joe S. Feather, of Corbin, warning order attorney.

W. R. Henry, of Williamsburg, guardian ad litem.

RICHARDSON Justice.

Martha Cox, assuming that she was the widow of W. J. Cox, qualified as administratrix of his estate. As administratrix and individually, she brought this action under section 428, Civil Code of Practice, against his heirs, to settle his estate. Individually, she alleged that in 1926 she had loaned W. J. Cox $900 which he agreed to pay back to her, and which he had used in paying the purchase money for the tract of land first described in the petition; and that he was indebted to her by reason thereof, $900 with interest at 6 per cent. per annum from the ___ day of ___, 1926, until paid.

W. J. Cox's heirs traversed the petition. Later, they filed an amended answer and counterclaim, reiterating their denial and pleaded the statute of limitation of five years. Nellie Cox Belcher, a daughter of W. J. Cox, by an appropriate pleading, asserted title to the 2 1/2 acres described in the petition, alleging that the mother of W. J. Cox conveyed it to him by deed containing this clause: "That said W. J. Cox was to have said tract of land for and during the balance of his entire life and upon his death the title and ownership of said tract of land was to be in Nellie Cox Belcher," but that the deed had been altered and changed since its delivery by striking this clause therefrom. This portion of the answer was made a cross-petition against the other heirs of W. J. Cox. It was controverted by a reply. The court, on the evidence of the parties, dismissed the answer, counterclaim, and cross-petition; denied Nellie Cox Belcher title to the 2 1/2 acres, and decreed that on Martha's Cox's claim for the $900 and interest, she recover only $400 "with simple interest thereon at the rate of 6% per annum from the 3rd day of October 1935 until paid," and directed the sale of the decedent's land to satisfy the same.

On this appeal she contends that the court erred in limiting the amount of her recovery to $400 and interest, and that she is entitled to recover the $900 with interest from 1926 until paid.

The court's judgment discloses that he accepted her evidence showing that she had loaned W. J. Cox $900; he had agreed to pay the same to her, and her cause of action, therefore, was not barred by limitation.

The evidence developed that Martha Cox, before her intermarriage with W. J. Cox, commenced to, and did, take care of Mr. Steele for some time prior to her marriage to Cox. And before their marriage Steele had deeded her a tract of land, in consideration of her services, performed and to be performed, for him. After Steele executed and delivered the deed to her, and after her marriage to Cox, he executed and delivered a deed conveying it to W. J. Cox, and thereafter a deed was executed by Martha Cox conveying it to her husband, W. J. Cox. It is her contention that when this land was sold and the consideration received for it, she turned $900 thereof over to W. J. Cox, on his promise to pay it back.

The evidence shows that after she and Cox were married, he placed improvements on the land of the value of about $300. There is some evidence that before the improvements were made it was of the value of about $600. It seems that the court by its judgment endeavored to adjust her and Cox's rights accordingly.

In their pleadings, not only they did not plead payment of the $900, or any portion of it, but did not make any claim concerning the improvements on the Steele land to which evidence was directed, on account of which the court seemingly reduced the amount of her recovery to $400.

Without pleadings presenting an issue relative thereto, or some indication of her waiver of the absence of pleadings concerning it, it was improper to credit her recovery by the value of the improvements or any part of it.

Whatever may have been the value of the land and the improvements placed on it by Cox at any time previous to his receiving of her the $900, if he recognized her right in the land and agreed to pay her the $900 as she claims, her cause of action is on his promise to her to pay it. If so, his estate should perform his promise, unless her cause of action arising thereon is barred by the statute of limitation.

The general rule is, a new promise to pay a debt not barred by limitation merely cuts off antecedent time and extends the period of statutory limitation from the date of the new promise. In such case an action thereon must be brought on the original promise, though it is not instituted until after the expiration of five years from the original promise; but where a debt is already barred by the statute of limitation, a new promise to pay it creates a new obligation, and the action must be brought on such new promise. Thornton's Adm'r v. Minton's Ex'r et al., 250 Ky. 805, 64 S.W.2d 158, 160, and cases cited.

An acknowledgment of a debt or a promise to pay it, to be sufficient in either case, must be made to the creditor or some person acting for him. Hargis v. Sewell's Adm'r, 87 Ky. 63, 7 S.W. 557, 9 Ky.Law Rep. 920; Davis v. Strange, 156 Ky. 420, 161 S.W. 217; Dowell v. Dowell's Adm'r, 137 Ky. 167, 125 S.W. 283; Thornton's Adm'r v. Minton's Ex'r et al., supra.

And the evidence establishing it must be clear, direct, positive, and unqualified, but no set form of words is necessary, nor is it required to be in writing. McGrew's Ex'r v O'Donnell, 92 S.W. 301, 28 Ky. Law Rep. 1366; Harrison v. Handley, 1 Bibb, 443. "In general any language of the debtor to the creditor, clearly admitting the debt and showing an intention to pay it will be considered an implied promise...