Dern v. Olsen

• Citation: 110 P. 164,18 Idaho 358
• Parties: JOHN DERN, Appellant, v. NAT OLSEN and ROBERT B. BROWNE, Administrator of the Estate of JOHN LYNCH, Deceased, Respondents; MARY LYNCH, JACOB LYNCH, CY. v. SMITH, NAT OLSEN, ROBERT B. BROWNE, C. K. AH FONG, and MARY E. AULTMAN, Intervenors and Respondents
• Decision Date: 25 June 1910
• Court: Idaho Supreme Court

110 P. 164

18 Idaho 358

JOHN DERN, Appellant, v. NAT OLSEN and ROBERT B. BROWNE, Administrator of the Estate of JOHN LYNCH, Deceased, Respondents; MARY LYNCH, JACOB LYNCH, CY. v. SMITH, NAT OLSEN, ROBERT B. BROWNE, C. K. AH FONG, and MARY E. AULTMAN, Intervenors and Respondents

Supreme Court of Idaho

June 25, 1910

STATUTE OF LIMITATIONS-WAIVER OF THE STATUTE OF LIMITATIONS-ACKNOWLEDGMENT OF DEBT-ADMINISTRATOR-WAIVER OF STATUTE OF LIMITATIONS BY ADMINISTRATOR.

(Syllabus by the court.)

1. Under the provisions of sec. 4078 of the Rev. Codes, no acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take a case out of the operation of the statute of limitations, unless the same is contained in some writing signed by the party to be charged thereby.

2. Under the provisions of sec. 4078 of the Rev. Codes, a clear and definite acknowledgment of the existence of a contract and liability which has not at the time been barred by the statute of limitations, whether coupled with a direct promise to pay or not, carries with it an implied promise to pay the debt and fixes a new date from which the statute begins to run.

3. Where O. was owing D. a note and mortgage which was overdue but not yet barred by the statute of limitations, and O wrote D. telling him of a prospective sale of mining property he had in view, and saying, "Now, if I can make this deal will try and get enough money down to liquidate the mortgage you hold against the property," such letter constitutes an "acknowledgment" of a "continuing contract" within the meaning of sec 4078, Rev Codes and sets a new date from which the statute of limitations begins to run.

4. Held, further, that the words, "If I can make this deal will try and get enough money down to liquidate the mortgage," constitute a condition that the debtor proposed to place upon the sale of the property and demand from the purchaser, rather than a condition as to the payment of the debt to his creditor, and did not negative an implied promise to pay at some time even if the sale should not be made.

5. Under the provisions of secs. 5469, 5471, 5461, and 5463 of the Rev. Codes, an administrator of the estate of a deceased person has no power or authority to waive the bar of the statute of limitations so as to set a new date for the statute to begin to run.

6. Under the provisions of sec. 4078, Rev. Codes, an administrator cannot "acknowledge or promise" to pay "a new or continuing contract" so as to remove the same from the operation of the statute of limitations and bind the estate, for the reason that the debt is the obligation of the estate represented by the administrator, and would not be the debt of the party making the acknowledgment or promise and "to be charged thereby."

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action by the plaintiff for the foreclosure of a mortgage. Judgment for defendants and plaintiff appealed. Reversed.

Reversed and remanded. Costs awarded against the appellant and in favor of the administrator and the intervenors. Appellant awarded costs against the respondent Olsen.

Richards & Haga, for Appellant.

It was not necessary that respondents should promise to pay the indebtedness to extend a new date for the statute to commence running as to the mortgage. All that was required was a plain and distinct acknowledgment in writing of the existence of the mortgage. (Foster v. Bowles, 138 Cal. 449, 71 P. 495; Concannon v. Smith, 134 Cal. 14, 66 P. 40; Kelly v. Leachman, 3 Idaho 629-639, 33 P. 44; Tuggle v. Minor, 76 Cal. 101, 18 P. 131; Cowan v. Magauran, F. Cas. No. 3292; Kirk v. Williams, 24 F. 448; Green v. Wagon Road Co., 23 F. 71, 10 Saw. 625; Clark v. King, 54 Kan. 222, 38 P. 282; 19 Am. & Eng. Ency. of Law, 295; 25 Cyc. 1335-1337.)

Several letters of a series can be construed together to determine whether there was an acknowledgment. (Morris v. Carr, 77 Ark. 228, 91 S.W. 187; Sears v. Howe, 80 Conn. 418, 68 A. 983, 12 Ann. Cas. 809; Cleland v. Hostetter, 13 N. M. 43, 79 P. 801; Willis v. Wileman, 53 Misc. 462, 102 N.Y.S. 1004; Rumsey v. Settle's Estate, 120 Mich. 372, 79 N.W. 579; Walker v. Freeman, 209 Ill. 17, 70 N.E. 595; Hill v. Hill, 51 S.C. 134, 28 S.E. 309; 3 Wigm. Ev., sec. 2120.)

These letters are a sufficient acknowledgment to fully meet the requirements of the statute. (Miller v. Kinsel, 20 Colo. App. 346, 78 P. 1075; Raymond v. Newcomb, 10 N. M. 151, 61 P. 205; Wise v. Adair, 50 Iowa 104; Bayliss v. Street, 51 Iowa 627, 2 N.W. 437; Jenckes v. Rice, 119 Iowa 451, 93 N.W. 384; Senninger v. Rowley, 138 Iowa 617, 116 N.W. 695, 18 L. R. A., N. S., 223; Elder v. Dyer, 26 Kan. 609, 40 Am. Rep. 320; Walsh v. Mayer, 111 U.S. 31, 4 S.Ct. 260, 28 L.Ed. 338; Barnard v. Bartholemew, 22 Pick. 291; King v. Davis, 168 Mass. 133, 46 N.E. 418; Chidsey v. Powell, 91 Mo. 625, 60 Am. Rep. 267, 4 S.W. 446; Devereaux v. Henry, 16 Neb. 65, 19 N.W. 697; Rumsey v. Settle's Estate, 120 Mich. 372, 79 N.W. 579; Norton v. Shepard, 48 Conn. 143, 40 Am. Rep. 157.)

The spirit and intent of the Idaho statutes empower the administrator to acknowledge debts of the decedent, not barred at his death. (Woerner's Amer. Law of Administration, sec. 401.)

It is within the discretion of the personal representative to plead the statute. (In re Huger, 100 F. 805; Trimble v. Marshall, 66 Iowa 233, 23 N.W. 645; West v. Smith, 8 How. 412, 12 L.Ed. 1135; Fairfax v. Fairfax, 5 Cranch, 19, 3 L.Ed. 24; Wood's Lim., secs. 188, 190; Woerner's American Law of Adm., secs. 400--402.)

The administrator can toll the statute by an acknowledgment of the debt, by part payment, or by a promise to pay. ( Suhre v. Benton (Tex. Civ. App.), 25 S.W. 822; Townes v. Ferguson, 20 Ala. 147; Ricketts v. Ricketts, 72 Tenn. 163; Jones v. Mitchell's Admr., 9 Ky. Law Rep. 858; Northcutt's Admr. v. Wilkinson, 51 Ky. 408; Jordan v. Brown, 72 Ga. 495; Foster v. Starkey's Admr., 66 Mass. 325; Pole v. Simmon's Admr., 49 Md. 20.)

Wyman & Wyman, for Respondents.

Each acknowledgment must be sufficient in itself unaided by others. (Simrell v. Miller, 169 Pa. 326, 32 A. 548; Patterson v. Neuer, 165 Pa. 66, 30 A. 748; 25 Cyc. 1339; sec. 4078, Rev. Codes; Kelly v. Leachman, 3 Idaho 629, 636, 33 P. 44.)

The new promise or acknowledgment referred to in the statutes of this state must be either (1) an unconditional promise to pay the debt; (2) an acknowledgment of the debt from which a promise to pay is to be implied; or (3) a conditional promise to pay the debt accompanied by a sufficient showing that the condition upon which the promise is made to depend has been performed. (25 Cyc. 1325, 1326.)

While the acknowledgment need not be in any particular form, it "must be a direct, distinct, unqualified and unconditional admission of the debt the party is liable and willing to pay; or, if it is qualified and made conditional, then the qualification and condition must be shown to have been performed." (Pierce v. Merrill, 128 Cal. 473 (476), 79 Am. St. 63, 61 P. 67; McCormick v. Brown, 36 Cal. 180, 95 Am. Dec. 170; Biddell v. Brizzolara, 56 Cal. 374; Finn v. Seegmiller, 134 Iowa 15, 111 N.W. 314; Visher v. Wilbur, 5 Cal.App. 562, 91 P. 412; Reed v. Interstate Oil Co., 41 Colo. 463, 92 P. 911; 25 Cyc. 1337-1339; Hanson v. Towle, 19 Kan. 273; Lambert v. Doyle, 117 Ga. 81, 43 S.E. 416; Lawson v. McCartney, 104 Pa. 356; Helm Co. v. Griffin, 112 N.C. 356, 16 S.E. 1023; Chambers v. Rubey, 47 Mo. 99, 4 Am. Rep. 318; Wood v. Merrietta, 66 Kan. 748, 71 P. 579; Warren v. Cleveland, 111 Tenn. 174, 102 Am. St. 749, 76 S.W. 910; Rodgers v. Robson, 147 Mich. 656, 111 N.W. 193; Kelly v. Strouse & Bros., 116 Ga. 872, 43 S.E. 280; Weston v. Hodgliins, 136 Mass. 326; Shepherd v. Thompson, 122 U.S. 231, 7 S.Ct. 1229, 30 L.Ed. 1156.)

The rights and duties of administrators are such as are given and enjoined by statute. Their powers are to be found there alone. To give an administrator power to remove the bar of the statute of limitations would be found to work irreparable injury to estates and bring intolerable scandal upon their administration. Absolutely no warrant for it is to be found in our laws. (Grotemkemper v. Bryson, 79 Ky. 353; Clayton v. Dinwoody, 33 Utah 251, 93 P. 723, 14 Ann. Cas. 926; Fullerton v. Bailey, 17 Utah 85, 53 P. 1020; Huntington v. Bobbitt, 46 Miss. 528; Moore v. Hardison, 10 Tex. 467; Peck v. Botsford, 7 Conn. 172, 18 Am. Dec. 92; Seig v. Acord, 21 Gratt. 365, 8 Am. Rep. 605; Estate of Fitzgerald v. First Nat. Bank, 64 Neb. 260, 89 N.W. 813; Milwee v. Jay, 47 S.C. 430, 25 S.E. 298; Thompson v. Peter, 12 Wheat. 565, 6 L.Ed. 730; Steele v. Steele's Admr., 64 Ala. 439, 38 Am. Rep. 15; Oates v. Lilly, 84 N.C. 643; Reay v. Heazelton, 128 Cal. 335, 60 P. 977; Bank of Montreal v. Buchanan, 32 Wash. 480, 73 P. 482; Cape Girardeau County v. Harbison, 58 Mo. 90; Butler v. Johnson, 111 N.Y. 204, 18 N.E. 643; Rector v. Conway, 20 Ark. 79.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

This action was instituted for the foreclosure of a mortgage. The note and mortgage were dated at Salt Lake City December 18 1901, and became due and payable July 1, 1902, at McCornick & Company's bank at Salt Lake City. Certain letters from each of the defendants Olsen and Browne were pleaded by the plaintiff for the purpose of showing that each of the defendants had acknowledged the debt so as to relieve the cause of action from the plea of the bar of the statute of limitations. To this complaint the defendants demurred, alleging as ground for the demurrer that the complaint on its face showed that it was barred by the statute of limitations. The court sustained the demurrer and the action was dismissed. This appeal is from the...