Cox v. Phelps

• Decision Date: 13 November 1897
• Citation: 45 S.W. 990,65 Ark. 1
• Parties: COX v. PHELPS
• Court: Arkansas Supreme Court

45 S.W. 990

65 Ark. 1

COX v. PHELPS

Supreme Court of Arkansas

November 13, 1897

Opinion Delivered May 21, 1898, Filed

Appeal from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

STATEMENT BY THE COURT.

This suit was begun February 13, 1894, to foreclose a deed in trust made to secure a note given by N. G. Hewitt for $ 6,000 on August 1, 1879, due three years after date, for money borrowed of Mrs. Mary G. Van Horn. The property conveyed in the deed is lot 12 in block 1 in the city of Little Rock.

N. G Hewitt died in February, 1887, leaving a will, which was probated March 18, 1887. N. G. Hewitt paid the interest on this note up to the time of his death. The note was transferred to Mrs. Sarah R. Phelps, the plaintiff in this suit, and was never probated against the estate of N. G Hewitt, upon whose estate the appellant, N.W. Cox, was administrator with the will annexed in the county of Pulaski in the State of Arkansas, where this suit was commenced.

The several defendants in their answers to the complaint pleaded the statute of limitations of five years, and set up other defenses not discussed here.

It appears from the evidence in the case that D. Reeve, who was indebted to N. G. Hewitt, and had been requested by Hewitt in his lifetime to pay the interest on this note for him, after the death of N. G. Hewitt, made two annual payments of interest on the note secured by the deed in trust. The latter of these two payments was made December 23, 1889. Both payments were made with money which Cox, the administrator of N. G. Hewitt's estate, furnished Reeve, which he was unable to repay to Cox as such administrator, and for which he gave Cox as administrator his receipt. For the amounts thus paid Cox charged the estate of Hewitt in his settlement of said estate by crediting himself as administrator therewith, which was approved by the probate court.

It is claimed by the appellees that these payments kept the debt alive, and from being barred by the statutes of limitations up to the time suit was commenced.

Decree reversed and cause dismissed.

P. C Dooley and Rose, Hemingway & Rose, for appellants.

The claim of appellees is barred by the statute of limitations. An administrator has no right to pay any debt which has not been duly probated against the estate; and his action in so doing is a devastavit, and does not bind the estate or suspend the running of the statute of limitations in favor of the estate. 14 Ark. 227; 55 id. 232; 20 Kans. 338; 53 N.Y 444; 32 N.W. 685; S. C. 68 Wis. 555; 20 A. 536-537; S. C. 136 Pa.St. 211; 7 Gray, 274; id. 387; 13 id. 381; 16 O. St. 566; 6 Johns. Ch. 266; 12 Rep. 51; 29 N.E. 501-2; 53 N.Y. 443; 66 N.Y. 352; 18 A. 795; 9 S.W. 390; 5 S.E. 727; S. C. 28 So. Car. 285; 30 Ark. 407; 52 Conn. 435; 9 Johns. Ch. 360. Payment made by administrator under order of court will not take case out of bar of limitation, unless there be an assent of the parties whose rights are to be affected. Wood, Limitations, 97 and 101; 11 Barb. 554; 9 Md. 317; 36 N.Y. 88; 14 S.W. 380; S. C. 88 Tenn. 255; 97 Pa.St. 322; 46 Ark. 373; 49 id. 91; 51 id. 82 and 84. Even if, by force of the will, there was a trust in the personal representative, the heirs are not affected by the acts of such representative. 5 S.E. 727; 28 S.C. 285; 6 Johns. Ch. 360; 14 S.W. 380; S. C. 88 Tenn. 255; 16 O. St. 566-571; 6 Johns. 292. If any agency to pay the debt subsisted, it was revoked by the death of Hewitt. 8 Wheat. 174; Mechem, Agency, 240. The statute applies to "mortgages" or "deeds of trust." Sand. & H. Dig., § 5094. Failure to protest a foreign bill for nonpayment discharges the maker. 1 Dan. Neg. Inst., 7-9; 2 id. § 971; Benj. Chalm. Dig., 180; Byles on Bills, 444 (292); 3 Rand. Com. Pap. 1199; Tied. Com. Pap. 334; 2 Dan. Neg. Inst., 1075; Tied. Com. Pap. 355.

Dodge & Johnson, for appellees.

The executor was really a trustee, and it was his right and duty to protect the equity of redemption by preventing a foreclosure. 10 Gratt. 651; Perry, Trusts, 347; 49 Pa.St. 484 (S. C. 88 Am. Dec. 510;) 130 Mass. 481; 98 N.Y. 309; 8 Paige, Ch. 152; S. C. 35 Am. Dec. 676; 55 Ark. 233; Wood, Limitations, §§ 188, 190. Part payment of principal or interest by a mortgagor or his agent forms a new starting point for the statute of limitations to run from. 12 Eq. Cas. 51; 1 De. G. & J. 1; 32 Conn. 288; 10 Cush. 72; 8 Metc. 87; 37 Iowa 570. If this part payment be made before the statute bar has attached, it may be made by one of the joint debtors, and be binding on all. In this the case at bar is materially different from what it would be if the debt had already been barred before the payment was made. 10 Ark. 110; 11 Ark. 187; 19 Ark. 693; 5 Ark. 551; 20 Ark. 189; 10 Ark. 163; 14 Ark. 201; 14 Ark. 217; 12 Ark. 782; 12 Ark. 780; 61 Barb. 190; 45 Mo. 365; 35 Conn. 299; 20 Ark. 188, 189; 5 Ark. 551; 19 Ark. 693. Such part payment may be made by an executor or administrator. 13 O. St. 271; 20 Pa.St. 214; Angell, Lim. 278, 281; 1 H. Bl. 104; 2 Saund. 117; 1 Halst. 405; 1 McMul. Eq. 331; 1 McC. Ch. 175; 5 Serg. & Rawle, 232; Harper (S. C.), 355; 2 Eq. 567; 1 Har. & John. 109; 4 ib. 527; 5 Gill & Johns. 498; 8 ib. 135; 8 Mass. 134; 13 ib. 213; 7 Halst. 255; 3 Call, 248, 252; 9 D. & R. 40; 22 Eng. C. L. 385; Ryan & Moody, 416; 15 Me. 360; 16 Mass. 429; 13 Wend. 35; 2 Leigh, 534; 1 Harr. (Del.) 128, 209; 2 Harr. 204; 17 John. 331; 5 Binn. 573; 1 Minor (Ala.), 353; Const. Ct. S. C. 111; 2 Hayw. 7; 4 Cow. 494; 19 Wend. 493; 4 Mon. 36; 15 Johns. 3; 16 Mass. 429; 2 Leigh, 534; 61 Barb. 19; 36 N.Y. 88; 10 Md. 197; 16 Mass. 429; 66 Mass. 327; 6 John. 3; 12 B. Mon. 408; 4 Mon. 36; 9 Ala. 502; 20 Ala. 147; 17 Ga. 96, 99; 13 Gratt. 346; 52 N.H. 60; 3 N.H. 468; 11 N.H. 211; 3 Redf. Wills, 289 and note; 10 Humph. 211; 4 Harrington (Del.), 368; 36 N.J.L. 45; 2 Gr. Ch. (N. J.), 311; 7 Halst. 247; 25 Md. 587; 2 Smith's Lead. Cases, 388; 4 Strobh. (S. C.) 68; 61 Barb. 190; 104 N.Y. 648; 36 N.Y. 90; 8 N.Y. 362; 26 Barb. 316; 58 Mo. 90; 11 N.Y. 185. The failure to protest the order or draft did not discharge the mortgage. 28 Ark. 166; 49 Ark. 512. The order was not a payment of the original debt. 78 N.Y. 293, 298; 8 Johns. 389; 37 N.Y. 312; 1 Cow. 390; 4 N.Y. 314; 54 N.Y. 581, 586; 13 N.Y. 556; 43 O. St. 453; 32 St. Rep. 953; 80 N.Y. 100; 38 N.Y. 289; 2 Wash. C. C. 191; 128 N.Y. 19. If the holder had lost his right on account of failure to protest the bill or order, the subsequent payment of interest on the original note revived the liability. 36 Pa.St. 529; 16 N.H. 410; 5 Mo. 544; 32 Me. 72; 33 Md. 412; 5 Sm. & M. (Miss.) 51; 18 C. B. 357; 48 Barb. 148; 5 Johns. 248; ib. 375; 16 ib. 152; 8 ib. 384; Anth. N. P. 205; 3 N. Y. Leg. O. B. S. 33; 30 N.Y. 124; 71 N.Y. 14; 47 N.Y. 273; 71 N.Y. 14; 23 Wend. 383; 2 Camp. 188; 14 Mo. 59; 26 Eng. L. & E. 283; 2 C. B. 258; 2 Sand. 166; 73 Eng. Com. L. 1010; 20 Vt. 669; 20 How. 496; 39 St. Rep. 669; 20 How. 175. Payment by executor of interest on an unprobated demand is not a devastavit. Act. of March 25, 1889, does not extend five year statute to make it cover a case like this. 34 Ark. 312. Appellants saved no exceptions below, and there is nothing before this court. 28 Ark. 77; 33 ib. 100; 16 Peters, 169; 4 Wall. 502; 4 Peters, 426; 56 Ark. 623; 31 Ark. 476; 34 id. 526; 36 ib. 263.

P. C. Dooley and Rose, Hemingway & Rose, in reply.

Executor is not a trustee. Perry, Trusts, 500; 2 Ohio 127; 21 Wend. 430. No exception need be taken to a decree 58 Ark. 123; 27 id. 58; 52 id. 283; 38 id. 477; 46 id. 17.

HUGHES J. BUNN, C. J., dissenting.

OPINION

HUGHES, J., (after stating the facts.)

Unless the payments made by D. Reeve with money of the estate of N. G. Hewitt, furnished him by N.W. Cox, administrator of said estate, and for which Cox was allowed credit, as administrator, in his settlement of Hewitt's estate, by the probate court of Pulaski county, prevented the bar of the statute of limitations, this action was barred when the suit was begun. The inquiry then is, do these payments have the effect in law to prevent the bar of the statute of limitations? Is the the plaintiff's right of action tolled, notwithstanding these payments?

"Actions on promissory notes and other instruments in writing not under seal shall be commenced within five years after the cause of action shall accrue, and not afterwards." Act. Dec. 14, 1844 (Sand. & H. Dig., § 4827). This note was not under seal.

"Actions on writing under seal shall be commenced within five years after the cause of action shall accrue, and not afterwards. Provided, this act shall not apply to any instrument now in existence." (Sand. & H. Dig., § 4828,) Act March 29, 1889.

According to the statutes, the right of action on this note was barred within five years from its maturity, unless suit thereon was commenced within the five years, or unless the running of the statute was estopped by a payment thereon within the five years.

Section 5094, Sand. & H. Dig., provides that "in suits to foreclose mortgages or deeds of trust it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given."

It will appear from the statement of facts that the note secured by the deed of trust was given August 1, 1879, and was due three years after date, that is, on August 1, 1882; that the last payment of interest was after N. G. Hewitt's death, in February, 1887, and was made by D. Reeve December 23, 1889 with money of Hewitt's estate furnished him by Cox, administrator of said estate, for which Cox was allowed credit in the settlement of said estate, which was approved by the probate court of said county. Cox furnished this money without any order of the probate court,...