Martin v. Knapp

• Decision Date: 31 October 1869
• Citation: 45 Mo. 48
• Parties: HENRY MARTIN, Respondent, v. JOHN KNAPP et al., Appellants.
• Court: Missouri Supreme Court

45 Mo. 48

HENRY MARTIN, Respondent,

v.JOHN KNAPP et al., Appellants.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Sharp & Broadhead, and Lackland, Martin & Lackland, for appellants.

The bond sued on, taken in connection with its conditions, is not a writing for the payment of money; and the period of limitation is five years, and not ten. (Gen. Stat. 1865, ch. 191, §§ 9, 10; Little v. Mercer, 9 Mo. 221; Crigler v. Quarles, 10 Mo. 324.)

Krum, Decker & Krum, for respondent.

The action against the securities on the bond is not limited to five years. In the revision of 1855, the words “direct,” before “payment,” and “debt,” after the word “action,” as they appear in the revision of 1845, are intentionally omitted. This ten-year limitation of 1855 is broad enough to embrace all actions upon any writing for the payment of money, whether certain or uncertain, liquidated or unliquidated, upon express or implied contract. (Reyburn v. Casey, 29 Mo. 129; same case, affirmed, 31 Mo. 252; Moorman v. Sharp, 35 Mo. 283; 39 Mo. 22; R. C. 1855, p. 131, § 48.)

CURRIER, Judge, delivered the opinion of the court.

The Probate Court of St. Louis county appointed John W. Wills administrator upon the estate of John Martin, deceased. Wills accepted the appointment, and duly filed his administration bond in the penal sum of $12,000, with the defendants as his sureties. The bond bears date August 29, 1856, the condition thereto providing that “if John W. Wills, administrator of the estate of John Martin, deceased, shall faithfully administer said estate, account for, pay, and deliver all money and property of said estate, and perform all other things touching said administration, required by law, or the order or decree of any court having jurisdiction, then the above bond to be void, otherwise to remain in full force.”

March 16, 1860, Wills made a final settlement of his administration account, the sum of $7,076.44 being found in his hands subject to distribution, and distribution thereof was ordered accordingly, the sum of $3,538.22 being directed by the decree to be paid to the plaintiff.

February 28, 1868, an execution reciting the decree of March 16, 1860, was issued by the Probate Court against Wills for the amount thereby ordered to be paid to the plaintiff, it appearing that the same had been demanded, and payment thereof refused. The execution was returned nulla bona.

March 7, 1869, a scire facias was sued out against the defendants, as Wills' securities, and judgment thereupon rendered against them in the Probate Court. An appeal was taken to the Circuit Court, and from that court to this.

The only defense relied upon here is the statute of limitations. The defendants take the ground that the statute commenced running from March 16, 1860, the date of the decree of distribution, and that the case is governed by section 10, chapter 191, of the General Statutes, which provides a limitation of five years. On the other hand, the plaintiff claims that the case is governed by the first clause of section 9 of that chapter, which provides a limitation of ten years. Whether the action falls within the one or the other of these sections is the question to be decided. These sections are the same as sections 2 and 3, article II, of the limitation act in the revision of 1855.

The first clause of section 9 above referred to, fixing a limitation of ten years, is in these words: “An action upon any writing, whether sealed or unsealed, for the payment of money or property.” The defendants' proposition is that the bond executed by them is not a writing “for the payment of money or property” within the intent and meaning of this provision, and that it consequently falls within the class of obligations which are barred in five years, under the provisions of the next succeeding section. I am not aware that it has ever before been claimed that an action based upon the obligations of an administrator's bond was barred in five years from the date of the accruing of the action. The argument by which that proposition is now sought to be sustained rests upon an artificial construction of the language of different provisions of the limitation enactment. I can not think that the construction so ingenuously contended for gives the true interpretation and development of the intentions of the Legislature. It was provided by the act of 1845 (R. S. 1845, p. 716, § 1), that all actions founded on any writing, whether sealed or unsealed, for the direct payment of money or property, should be barred in ten years, and that (§ 2) “all actions of debt founded upon any contract or liability” not otherwise limited, should be barred in five years. The act contained no provision limiting the time of suing...