Jesup v. Epping

• Decision Date: 28 February 1881
• Citation: 66 Ga. 334
• Parties: Jesup et al., trustees. vs. Epping.
• Court: Georgia Supreme Court

66 Ga. 334

Jesup et al., trustees. vs. Epping.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

Mortgage. Statute of limitations. New Promise. Contracts. Pleadings. Before Judge Mershon. Wayne Superior Court. September Term, 1880.

Reported in the decision.

Goodyear; Harris & Kay, by brief, for plaintiffs in error.

Ira E. Smith; Marry & Crovatt, by brief, for defendant.

Speer, Justice.

Plaintiffs in error, as trustees of Gilpecke Herman & Riecheldt, sued out a rule nisi to foreclose a mortgage on realty to secure a debt upon open account, made in 1858, for $79,084.25, filing their proceedings before the twenty years statute of limitations had run from the maturity of debt. The petition was in usual form and with usual prayer of foreclosure. To avoid the statute of limitations passed in 1869 plaintiffs amended their petitions as follows:

" Petitioner amends his petition on the 28th line of the 4th page by adding there the words: And your petitioner further shows that the said Carl Epping, mortgagor, after July, 1865, made his promise in writing both by letters written and signed by the said Epping and by payments and releases of certain portions of the mortgageproperty in said petition described, said letters addressed both to the original mortgagees and assignees herein described, and said payments and releases being evidenced also in writing under the handwriting of the said Carl Epping, mortgagor, —which amendment was allowed by the court."

In seeking to foreclose a mortgage which on its face appears to be barred by the statute of limitations, and where the petitioner, to avoid the bar, avers a new promise in writing, it would devolve upon him to aver and set forth in his petition such new promise, either by copying the same or make such averments as to its tenor and legal effect as would enable the defendant to meet the same by plea as well as proof. 9 Ga. 422. So if the bar of the statute is sought to be avoided by "payments upon said written evidence of debt, " or any "other written acknowledgment of the existing liability, " like averments would be necessary. The court held in Martin vs. Broach, 6 Ga., 21, that where the original cause of action was barred, and the party relied on a subsequent promise, that the new promise, and not the old debt, was the cause of action, that the latter was only the inducement to and consideration for the new promise. 12 Ga., 617.

While such new promise does not create a new liability, but simply revives...