Grissom v. Bull, 26946.

• Decision Date: 31 May 1938
• Docket Number: 26946.
• Citation: 195 Wash. 97,79 P.2d 971
• Parties: GRISSOM v. BULL et al.
• Court: Washington Supreme Court

79 P.2d 971

195 Wash. 97

GRISSOM v. BULL et al.

No. 26946.

Supreme Court of Washington

May 31, 1938

Department 2.

Appeal from Superior Court, Kittitas County; Arthur McGuire, Judge.

Action by Emma C. Grissom, as administratrix of the estate of Bertha Hansen, deceased, against J. Alva Bull, administrator of the estate of Gilbert Olaf Hansen, deceased, and others, to foreclose a mortgage. From a judgment dismissing the action plaintiff appeals.

Affirmed.

Everette R. Small, of Yakima, for appellant.

Short &amp Short and Jay A. Whitfield, all of Ellensburg, for respondents.

ROBINSON Justice.

This is an action to foreclose a mortgage.

On October 31, 1914, Mrs. Bertha Hansen, an elderly widow deeded to her son, Gilbert Olaf Hansen, and his then wife, Flora, the Hansen home place in Kittitas county, containing fifty-five acres. There were two dwelling houses on the place, and she reserved a life interest in the small tract upon which her own house was situated. On the same day, the son and his wife gave her their note for six thousand dollars, payable in ten years, with interest at the rate of five per cent per annum, and secured the note by giving her a mortgage upon the property which she had just deeded to them. The mortgage was duly recorded on November 4, 1914. Gilbert Olaf Hansen, commonly known as Olaf Hansen, was Bertha Hansen's youngest son.

In 1921, Olaf and Flora Hansen were divorced and a decree was entered awarding the property to Olaf Hansen, subject to the mortgage. Later, Olaf Hansen married Florence Hansen, and they continued to live on the home place. Bertha Hansen died intestate on January 24, 1933. Olaf Hansen died intestate on February 29, 1936. Mrs. Grissom, daughter of Bertha Hansen and sister of Olaf, was appointed administratrix of her mother's estate on June 3, 1936, and on March 27, 1937, began this action to foreclose the mortgage against the administrator of the estate of Olaf Hansen, joining his heirs as defendants. The defendants set up the statute of limitations. Rem.Rev.Stat. § 157. At the close of the plaintiff's case, the court sustained a motion to dismiss, on the ground that the action was barred by the statute.

The debt secured by the mortgage became due on October 31, 1924. It was not claimed that the obligation was in any way formally renewed. It was not claimed that any payment of principal or interest was made prior to sometime during the summer of 1931. As the bar of the statute attached on October 31, 1930, it was incumbent upon the plaintiff to show that the payment alleged to have been made in the summer of 1931, or some subsequent payment, was made under such conditions as to show an intentional acknowledgment by Olaf Hansen of his liability for the whole debt as of the date of payment, thus creating a new promise, by implication, to pay the residue. Eureka Cedar Lumber & Shingle Co. v. Knack, 95 Wash. 339, 163 P. 753.

It was said, in Berteloot v. Remillard, 130 Wash. 587, 228 P. 690, quoting from the syllabus of Arthur & Co. v. Burke, 83 Wash. 690, 145 P. 974:

'A barred debt is not revived by part payment unless the circumstances show a clear and unequivocal intention on the part of the obligor to revive the whole debt * * *.'

The rule laid down in these cases was cited, approved, and applied in a recent opinion by this court in Stockdale v. Horlacher, 189 Wash. 264, 64 P.2d 1015.

Emma C. Grissom, the plaintiff, testified as to the first payment alleged to have removed the bar of the statute. The court refused to consider a portion of her evidence, believing it to be offered in violation of Rem.Rev.Stat. § 1211. This is alleged as error, and a large portion of the briefs of the parties is given over to the discussion of that matter. We do not find it necessary to determine that controversy, for if the questioned evidence be considered, it is still not sufficient to remove the bar of the statute.

Giving Mrs. Grissom's testimony its full scope, it amounts to no more than this: In July, 1931, at a family reunion, Merlyn Snyder, daughter of Olaf, gave Mrs. Grissom a twenty-five dollar check for her mother. The check was drawn or endorsed by Olaf Hansen. Mrs. Grissom had her brother Henry cashed it (which evidence Henry confirmed) and gave the money to her mother, Bertha Hansen. Pearl Rutherford, a granddaughter of Mrs. Hansen and daughter of Mrs. Grissom, testified that her grandmother was staying with her in February, 1932, and that her uncle Olaf came down to see her mother. He gave her a twenty dollar check for her grandmother, which she gave to her mother, Mrs. Grissom. Referring to this check, Mrs. Grissom said she thought it was signed Olaf Hansen, Gilbert O. Hansen, or G. O. Hansen, 'I don't just remember; I don't recall to whom it was made payable.' She was not permitted to testify that she gave the money to her mother, but, in discussing the matter, we will assume that she did.

This is the substance of all the evidence covering the payments alleged to have been made by Olaf Hansen to his mother. Admitting that he sent her these sums, there is no evidence whatever that they were intended as payments on the obligation secured by the mortgage. They were comparatively trifling in amount, and, for aught that is shown, they may have been gifts from the son to the mother or they may have been payments on some other obligation. There is certainly no showing of an intention to recognize or revive the outlawed debt.

In Crow v. Gleason, 141 N.Y. 489, 36 N.E. 497, it is said (page 498):

'* * * If there be a mere naked payment of money without anything to show on what account, or for what reason, the money was paid, the payment will be of no avail under the statute.'

See, also, Smith v. Smith, 39 Wyo. 107, 270 P. 174.

The deficiency of the evidence in this case is well shown by an old case on the subject, which has been often cited and quoted: Burr v. Burr, 26 Pa. 284, decided in 1856. This was a suit by a mother against the administratrix of her deceased son upon a note signed by the latter to her order. There was a plea of the statute of limitations, and it was sought to be avoided by proof of part payment. The only testimony on the point was that of the plaintiff's daughter who stated:

'Mother says, 'Israel, can thee let me have a little interest money on that note which I hold of thine?' He said, 'How much would thee like, mother?' She said, 'Four or five dollars,' and he gave her seven. He said, 'Is that sufficient?' She said, 'It is for the present."

The judgment given for the plaintiff in the trial court was reversed on appeal, and the following language appears in the opinion:

'* * * There is a statutory bar to the plaintiff's cause of action; to remove this bar, she relies upon a promise to pay within six years Before the commencement of the suit. To sustain the promise, she neither gives evidence of an express agreement to pay, nor of a direct acknowledgment that the debt was unpaid; but from a small payment of interest, a constructive acknowledgment is to be inferred, and upon this constructive acknowledgment, the promise to...