Jewell v. Long

• Decision Date: 12 July 1994
• Docket Number: No. 15496-0-II,15496-0-II
• Citation: 74 Wn.App. 854,876 P.2d 473
• Court: Washington Court of Appeals
• Parties: Raymond W. JEWELL, a single man, Respondent, v. Verl L. LONG and Jane Doe Long, husband and wife, Appellants, and Marlene M. Jewell and John Doe Jewell, wife and husband; and The State of Washington, Defendants.

Page 854

74 Wn.App. 854

876 P.2d 473

Raymond W. JEWELL, a single man, Respondent, v. Verl L. LONG and Jane Doe Long, husband and wife, Appellants and Marlene M. Jewell and John Doe Jewell, wife and husband and The State of Washington, Defendants.

No. 15496-0-II.

Court of Appeals of Washington,

Division 2.

July 12, 1994.

Arnold M. Young, Mill Creek, for appellants.

Anna Laurie, Sanchez, Paulson, Mitchell & Laurie, Bremerton, for respondent.

MORGAN, Chief Judge.

Raymond W. Jewell sued Verl L. Long to collect a promissory note and foreclose an accompanying deed of trust. Long interposed the statute of limitations. The trial court granted summary judgment to Jewell, and Long appeals.

On September 13, 1982, David Jewell executed a $12,000 promissory note to Barbara Fend and George Fend. ¹ The note was payable on September 13, 1983, but payment was never made.

In 1982, when David Jewell first executed the note, he secured it by giving a deed of trust on certain real property. In January 1985, however, he asked the Fends if he could secure the note by giving a deed of trust on a different piece of property. The Fends agreed. Thus, on January 23, 1985, David Jewell gave them a new deed of trust, and the 1982 deed was apparently released.

Subsequently, the Fends and David Jewell transferred their respective positions to other people. The Fends transferred their position to Raymond Jewell, and David Jewell transferred his position to Long.

In 1991, Raymond Jewell sued Long to collect the note and foreclose the 1985 deed of trust. He and Long then made cross-motions for summary judgment. They both agreed that the applicable statute of limitations was 6 years. See RCW 4.16.040. They disagreed, however, over when the statute had started to run. According to Long, it started when the note first became payable (September 13, 1983), and it expired before suit was filed (January 11, 1991). According to Raymond Jewell, it restarted when David Jewell gave the 1985 deed of trust (January 23, 1985), and it had not expired when suit was filed. The premise underlying Raymond Jewell's position was that David Jewell acknowledged the 1982 debt by giving the 1985 deed of trust.

The trial court denied Long's motion while granting Raymond Jewell's. It agreed with Raymond Jewell that David Jewell had acknowledged the 1982 debt when he gave the 1985 deed of trust, and that the statute of limitations had restarted as a result. Long then appealed.

An acknowledgment or promise within the meaning of RCW 4.16.280 ² restarts the statute of limitations. Thus, in Cannavina v. Poston, 13 Wash.2d 182, 195, 124 P.2d 787 (1942), the Supreme Court said:

An acknowledgment or promise made before the statute [of limitations] has run vitalizes the old debt for another statutory period dating from the time of the acknowledgment or promise, while an acknowledgment made after the statute has run gives a new cause of action, for which the old debt is a consideration.

13 Wash.2d at 195, 124 P.2d 787 (quoting 1 Wood on Limitations 432 (4th ed.)). And in Griffin v. Lear, 123 Wash. 191, 198, 212 P. 271 (1923), the Supreme Court said:

A new promise, made before a debt is barred by the statute of limitations, is held not to create a new and substantive contract, but to be merely evidence of an existing liability, and to fix a new date from which the statute runs.

123 Wash. at 198, 212 P. 271 (quoting 17 R.C.L., Limitation of Actions § 254, at 895 (1917)).

Generally, an acknowledgment must be in writing; recognize the existence of the debt; be communicated to the creditor or to another person with intent that it be communicated to the creditor; and not indicate an intent not to pay. Cannavina, 13 Wash.2d at 195, 124 P.2d 787; Griffin, 123 Wash. at 199, 212 P. 271; Addison v. Stafford, 183 Wash. 313, 316, 48 P.2d 202 (1935); Rea v. Rea, 19 Wash.App. 496, 499, 576 P.2d 84, review denied, 90 Wash.2d 1020 (1978). Here, the 1985 deed of trust was in writing; recognized the existence of David Jewell's debt to the Fends; was communicated to the Fends; and did not indicate an intent not to pay. ³ Thus, the only question is whether a debtor's act of giving security is an acknowledgment if it otherwise satisfies these requirements.

There is no Washington case on point, but other jurisdictions have held that giving or substituting collateral security constitutes an acknowledgment that restarts the statute of limitations. Annotation, Giving of Collateral as Acknowledgment and New Promise to Pay Tolling Statute of Limitations, 171 A.L.R. 315 (1947). Thus, it has been said:

The delivery by a debtor to a creditor of collateral security for a debt is held to be as much an acknowledgment of the debt as a payment, and equally effectual to start the operation of the statute of limitations anew.

51 Am.Jur.2d, Limitation of Actions, § 346 (citin...