George v. Gardner

• Decision Date: 31 July 1873
• Citation: 49 Ga. 441
• Parties: JOHN GEORGE, plaintiff in err0r. v. JAMES GARDNER, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 441

JOHN GEORGE, plaintiff in err0r. v. JAMES GARDNER, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Statute of limitations. Mortgage. Constitutional law. New trial. Before Judge Gibson. Richmond Superior Court. October Term, 1872.

For the facts of this case, see the decision.

McLaws & Ganahl, for plaintiff in error.

The Act of 1869 does not include liens, certainly not mortgages on realty, because—

1st. The word "action" does net include statutory remedy to foreclose a lien: Code, sec. 4; 4Ga., 486; Angell on Lim., 73; 8 Ga., 321, as it does not include dower, distress, ousting a tenant, rules v. sheriffs and other officers, etc.

2d. The Act of 1869 does not refer to liens; so far as it relates to actions ex con repetractu, it repeals by 2d provision: Code, sec. 2863; 3d, sec. 2S64; 4th, sees. 2866-7; 5th, sec.

2871; 6th, sec. 2872. All cases not of this character (i. e. *not set out in the above sections of the Code), are provided for by Act of 1869, and no more; vide last section of Act of 1869.

3d. Because if foreclosure of a mortgage lien were within the words it would not be within the spirit of the Act, just as mortgage judgments are not within the dormant judgment Act: 7 Ga., 495; and sci. fa., is not a civil case within the provision of the Contitution requiring all civil cases to be brought in the county of the residence of defendant: 10 Ga., 557.

4th. Because the effect and consequences would be absurd: Black's Com., p. 60.

5th. Because such a construction would impair the obligation of the contract: Const. U. S., Art. I, sec. 100; Const. Ga., Art. I., sec. 1; Bronson v. Kinzie, 1 How, 311; Mc-Cracken v. Haywood, 2 How, 608; Grantley v. Ervein, 3 How., 707; LeRoy v. Crowingshield, 2 Mason, 175, 176; Hardeman v. Downer, 39 Ga., 429. 1st. Did the Act of 1869 include foreclosure of mortgages in language or spirit? We reply—

1st. Acknowledgment and new promise: Angell on Lim., 208, 234.

2d. Pavments entered on the written evidence of the debt by the plaintiff or his authority: Code. sec. 2884.

3d. New promise in writing by plaintiff or by his authority after the foreclosure: Code, sec. 2883.

4th. Fraud and estoppel: Code, sees. 3116, 3126; Guerin v. Danforth, 45 Ga., 495.

5th. In this case, neither plaintiff nor defendant were in the State during the whole period of limitation.

Frank H. Miller; W. H. Hull, for defendants.

I. The debt sued for is barred by the statutes of limitation, 1st. The statute of force at the making of the contract, January 1, 1857, governs as to the contract and new promise: 28 Ga., 310.

2d. This debt should have been renewed by promise in "writing, signed by Gardner or some person by him authorized: Acts February 20, 1854, March 6, 1856, section 25.

3d. Entries of credits in the presence of the maker or person making them do not keep the debt in life: 20 Ga., 94, 22 Ga., 343. 32 Ga., 602, 34 Ga., 245, 36 Ga., 538.

4th. The same defense exists as against a suit on the debt: Code 3888, and the debt is certainly barred by Act of March 16, 1869.

5th. The mortgage itself as a sealed instrument is barred: Section 3, Act March 16, 1869.

II. The exceptions to the limitations in the Code do not apply to cases arising under the Limitation Act of March 16, 1869; 1 Kelly, 32, Adam v. Davis, decided August 13, 1872; 46 Ga., 126.

III. No new promise has been made by Gardner, or by any person by him authorized in writing. As to what a new promise must contain, see 6 Ga., 31, 486, 587, 9 Ga., 418, 32 Ga., 602, 36 Ga., 538; but it is insufficient to refer to notes generally: 32 Ga., 119; any dispute is a question of fact for the jury: 6 Ga., 21, 486. The Judge acting here as the jury, his finding will not be disturbed: 41 Ga., 437, 32 Ga., 119, 45 Ga., 167, Anderson v. Howard & Sons, decided August 12, 1873. After the statute has run, a debtor's rights become vested, and cannot be affected by legislative action: 41 Ga., 231. The debt being then absolutely barred, January 1, 1870, the question of consideration for future indulgence is excluded.

IV. The offer of Stockton cannot affect Gardner's rights nor bind him.

V. The statutes of limitation confer a legal right, and it is not fraud to plead it: 6 Ga., 31. WARNER, Chief Justice.

At the January term, 1871, of Richmond Superior Court, John George petitioned the Court to foreclose a mortgage made by James Gardner to him on certain real estatedescribed therein as set forth in the record. The mort-gage was "executed on the1st day of January, 1857, to secure the payment of two promissory notes for $3,000 00 each, due at one and two years after date, the notes having the same date as the mortgage, which was duly recorded on the 16th of January, 1857. The following is a copy of the notes with the endorsement and credits thereon:

"$3,000 00. Augusta, January 1, 1857.

"Twelve months after date I promise to pay to the order of John George $3,000 00, for value received, with interest from date. (Signed) James Gardner.

"Endorsed: John George.

"Received note for the interest to 1st January, 1858, B. B; received interest to 1st January, 1859, on within., B. B.; received interest to 1st January, i860, on within, B. B.; received interest on the within note to 1st January, 1861, B. B.; received interest on the within note to 1st January, 1863; received on account $500 00, 23d January, 1868; recerved on account $750 00, May 14. 1870. Received interest in full to 1st July, 1870-July 18, 1870."

"3, 000 00.

"Two years after date I promise to pay to the order of John George $3,000 00 for value received, with interest from date. (Signed) James Gardner.

"Augusta, January 1st, 1857.

"Endorsed: John George.

"Received interest to 1st January, 1859, on within, B. B.; received interest to 1st January, i860, on the within, B. B.; received interest on the within note to 1st January, 1861, B. B.; received interest to 1st January, 1863, on within note, B. B.; received on account within $250 00, March 18th, 1869; received, Augusta, 24th May, 1869, $250 00 on account within; received, Augusta, 6th June, 1870, $500 00 on account within note; received, on 27th July, 1870, on account interest, $326 41; September 7, 1870, received $326 41; received interest to July 1, past."

*At the trial of the case, the following facts were agreed to and submitted to the Court for its judgment thereon:

"John George became a citizen of the United States September 21st, 1842, and resided in Augusta until May..., 1854, when he removed to Ireland, where he has ever since resided. He visited Georgia at the time of the date of the mortgage, January 1st, 1857, and then sold and conveyed the mortgaged premises to James Gardner, describing himself in the deed as of Richmond county. Gardner paid allthe purchase money but $6,000 00, and for this sum executed two notes for $3,000 00 each, payable, one at one year and the other at two years from January 1st, 1857, and the mortgage on the premises, the forclosure of which is now being resisted. The notes were not paid at maturity, but the interest was paid at stated intervals and indulgence asked for the principal, by Gardner, and granted by George. After the sale and mortgage, George returned to Ireland, and left with Bernard Bignon, of Augusta, the unpaid notes. He returned to Georgia in 1859, and then went back to Ireland, where he has since resided, never having removed the notes from Bignon\'s hands. Bignon collected the interest for George, and managed his other properly in Georgia, and returned them for taxation, to 1867, inclusive, when, being informed the debt was not liable for taxation under the laws of Georgia, he ceased to do so. On the 28th day of October, 1863, James Gardner sold the mortgaged premises to George T. Barnes, John L. Stockton, and others, as tenants in common— Gardner agreeing to pay off the mortgage. These parties carried on the business of the Constitutionalist newspaper, under the name of Stockton & Company. Stockton and Gardner, in the course of time, bought out the interest of all the other partners, except Lawrence D Lallerstedt, and with him owned the mortgaged premises until December 22d, 1870. The parties who purchased, bought with full notice of the mortgage, and subject thereto, for the unpaid purchase money held by George, and Gardner in his deed to them having covenanted to pay it off.

*"James Gardner removed to New York April 1st, 1867, and resided there until October 17th. 1870, when he returned to Georgia, occasionally visiting Georgia in the interim; and on the first day of February, 1871, became editor again of the Constitutionalist newspaper, which was published and its business carried on in the mortgaged premises.

"John L. Stockton & Company, the managing partner of the firm of Stockton & Company, acting for Gardner, paid the interest on the notes, from time to time, to Bernard Bignon. On the 18th of July, 1870, he paid the interest to 1st July, 1870, in full, on one note; on the 27th of July, 1870, he paid part of the interest to July 1st, 1870, on the second note; and on the 7th of September, 1870, he paid the interest on the second note to July 1st, in full. When these payments were made of interest to Bignon, Stockton took no receipt, but instructed Bignon to indorse the receipts of the same on the notes, which was done by Bignon in each case, in Stockton's presence, at the time of payment, by his direction, at his desk, and under his inspection.

"In the month of March, 1870, the interest on the notes being greatly in arrears, John L. Stockton, of Stockton & Company, then composed of John L. Stockton, L. D. Lallerstedt, and James Gardner, owners of the mortgaged premises, proposed in writing as follows " 'We propose to pay Mr. George $700 00 cash, and the balance of the interest to July 1, 1870, in three equal payments, on May 1st, June 1st, and July 1st, and to pay the principal in January or February next.

Stockton & Company.'

"This proposal was...