Hopkins v. Stout

• Decision Date: 21 December 1869
• Citation: 69 Ky. 375
• Parties: Hopkins, & c. v. Stout.
• Court: Kentucky Court of Appeals

69 Ky. 375

Hopkins, & c. v. Stout.

Court of Appeals of Kentucky.

December 21, 1869

1. In September, 1856, Stout sued the administrator of Hopkins on a promissory note dated the 11th and payable the 12th day of May, 1849, indorsed, " Received on the within note twenty-three dollars, August 30, 1852. JAMES STOUT."

At the date of the credit Hopkins was living. His administrator neither controverted the partial payment indorsed nor alleged any other payment, but resisted judgment upon a plea of usury. Judgment was rendered against the administrator in 1860 for the debt and interest, less the twenty-three dollars credited as above. There being no personal assets, the judgment was never collected. In August, 1866, Stout brought this suit against the heirs of Hopkins for the debt aforesaid. The statute of limitations was the only defense pleaded by the heirs. The circuit court rendered judgment against them for the debt. On the appeal of the heirs that judgment is affirmed, Judge HARDIN dissenting. Held,

2. An acknowledgment of or promise to pay a debt before it is barred by time does not absorb or supplant the still subsisting cause of action, but operates to prolong the statutory limitation by cutting off the antecedent time.

3. After an action on a contract has been barred by limitation a moral obligation may be a binding consideration for a new promise and different cause of action, and then the suit must be brought on the new promise.

4. A partial payment on a note made before a bar by limitation is prima facie an acknowledgment that the residue is unpaid, and of a continuing liability therefor, and suspends the operation of the statute between the accrual of the cause of action on the note and the date of that payment.

5. An indorsement of a partial payment upon a note shown to have been made by the obligee in the life-time of the obligor, and before the cause of action was barred by limitation, is competent evidence for the obligee that at its date the amount indorsed was paid, and that the balance remained unpaid.

6. A judgment against the administrator is prima facie evidence against the heirs in a proceeding against them to subject land descended to them to the payment of the debt for which the judgment was recovered against the administrator of their ancestor.

APPEAL FROM SHELBY CIRCUIT COURT.

BULLOCK & DAVIS, For Appellants,

CITED

Hardin, 301 1 Bibb, Harrison v. Handley

5 Littell, 281, Stanley v. Earl.

4 B Mon. 37, Hord v. Lee.

16 B. Mon. 415, Price v. Ridgeway.

3 Ad. and El. W. S. 514, Balesman v. Rudder.

8 Mod. 278. 2 Raym. 1370.

2 Ves. 43. 3 Bro. Rep. P. C. 593.

1 Crompt. & Mees. 421, Cases in Parl. 1728-31.

Chitty on Contracts, 829, 830.

11 C. M. & R. 252, Tippett v. Hearne.

6 Eng. Law and Equity, 520 (S. C. Jur. 1044).

Angell on Lim. (May's new Am. ed. 1861) note 248.

Parson's Mercantile Law, 239.

Byles on Bills (5th Am. ed. Sharswood's) 240, and notes.

22 Georgia, 343. 5 S. & M. 571.

12 S. & M. 663, Smith v. Westmoreland.

24 Miss. 389, Anderson v. Robertson.

32 Ill. 383, Long v. Gear.

3 Gilman, 108, Connelly v. Pierson.

4 Pick. 110, Whitney v. Bigelow.

4 Dane Ab. 406, Burnham v. Burnham.

2 Massachusetts Digest, p. 233.

7 Yerger, 313, Stein v. Mathews.

C. M. HARWOOD, For Appellee,

CITED

2 Strange, 826, Searle v. Lord Barrington.

12 Maine, 472, Coffin v. Buckman.

1 Watts & Sergeant, 241, Adams v. Leitzinger.

5 D. & S. 331, Cremer's Estate.

2 McCord (S. C.) 408, Gibson v. Peebles.

9 Georgia, 408, Smith v. Simmons.

4 Eng. (Ark. Rep.) 460, Alston v. State Bank.

1 Richardson (S. C.) 391, Conklin v. Pearson.

21 Maine, 176, The Trustees, & c. v. Osgood.

17 Johnson, 181, Roseboom v. Billington.

1 Greenleaf on Evidence, 7th ed., sec. 121.

2 Greenleaf on Evidence, secs. 444, 436.

Angell on Limitations, secs. 241, 242.

16 B. Mon. 415, Ridgley v. Price.

Byles on Bills, side page 271.

Smith's Leading Cases (H. & W.'s notes) pp. 718, 728.

(JUDGE HARDIN DISSENTING).

OPINION

ROBERTSON JUDGE

In September, 1856, the appellee, James Stout, sued the administrator of John Hopkins on a promissory note executed by Hopkins to Stout on the 11th and payable on the 12th of May, 1849, and on which the following indorsement appeared:

" $23. Received on the within note twenty-three dollars, August 30, 1852.

JAMES STOUT."

At the date of that credit Hopkins, the obligor, was living. His administrator defended the action, and not controverting a partial payment as indorsed, nor alleging any other payment, resisted a judgment on a plea of usury. That defense not being sustained, judgment was rendered in 1860 against the administrator for the amount of the note and interest, subject to credit for the $23 as indorsed; but for want of personal assets no portion of the judgment was ever collected.

The consideration of the note being a sale and conveyance of land which descended to the heirs of Hopkins, the appellee, in August, 1866, brought this suit in equity for obtaining a judgment against them also, and for enforcing a lien claimed on the land which they had alienated. Their answer, not admitting the indebtedness of their father, pleaded the statute of limitations in bar of the action against them. The circuit court rendered personal judgment against them; and now the question involved in this appeal is whether this suit was barred by limitation.

The judgment against the administrator neither concluded the heirs nor authorized execution against them. The cause of action against them was coeval with that against the obligor, and consequently the time which would have barred an action against him, if surviving, will bar this suit. About seventeen years having elapsed since the cause of action first accrued, therefore fifteen years being the limitation, this action is barred unless the indorsement of credit on the note in some way can save the case from the bar.

The statutory bar is peremptory, and can not be evaded by proof that the debt has never been paid. Even an admission of non-payment in the plea of limitation would not prevent the bar. In this respect it is unlike a plea of payment supported by presumption resulting from mere lapse of time, which may be repelled by proof of acknowledgment. Limitation and not payment being the issue in the indorsement of credit, however else it may operate, is not admissible merely as evidence repelling a presumption of full payment. Nor can it be available as evidence of a new and actionable promise to pay the residue of the bond for two reasons: first, this action is, as it should be, on the bond itself; and second, no action on any such implied promise could be maintained on the facts of this case. As long as the cause of action on the bond was unbarred by time, no oral acknowledgment or promise could operate otherwise than to countervail a presumption of previous satisfaction, or to prolong the statutory limitation by cutting off the antecedent time. No such promise made before the bar could absorb or supplant the still subsisting cause of action on the bond, and which therefore is the only proper action.

After an action on a contract shall have been barred by limitation, a moral obligation may be a binding consideration for a new promise and different cause of action, and then the suit must be brought on the new promise. This is not that case; consequently, if the indorsement be evidence of partial payment, it can operate only as a suspension of the running of the limitation between the accrual of the cause of action on the bond and the date of that payment, or rather a postponement of the cause of action to the latter date.

The philosophy of a peremptory bar by statutory prescription results from two considerations: first, from the prescribed lapse of time, nothing else appearing, the law presumes satisfaction or exoneration; and second, the danger of the loss of evidence of extinguishment prudently makes the presumption intraversable and conclusive. But an acknowledgment within the statutory time defeats the presumption up to that time, and breaks a link in the continuous running of the statute; and consequently the antecedent time is not counted in computing the bar; and that elision operates so as to elongate the statute to a correspondent extent, and postpone the cause of action to the date of the acknowledgment, just as the statutory saving by any sort of obstruction would do. The party making the acknowledgment waives past time, and is estopped from pleading it; and therefore the bar is not complete until the required time shall have afterward run without further obstruction or recognition of the cause of action. The presumption of exoneration commences after such recognition; and if there shall be subsequent satisfaction, the posterior time must be long enough to authorize the presumption of it per se and alone. In an action brought before the interlapse of the time required by the statute, satisfaction in the mean time will not be presumed as a deduction of law; and the debtor could not complain of an elongation resulting from his own act.

This philosophy seems consistent with the spirit and aim of the statute of limitations in cases of contract; and this must be the true and only ground, on which it has been often adjudged, that a partial payment of a bond may suspend the operation of the statute.

The adjudications and elementary dicta on the subject of partial payments have generally confounded this class of cases with the other two of a merely presumptive bar, and of a new promise after a statutory bar. A proper discrimination will classify all the cases so as to relieve from much confusion and apparent conflict in the books, and...