McLaughlin v. Head

• Citation: 168 P. 614,86 Or. 361
• Parties: MCLAUGHLIN v. HEAD.
• Decision Date: 13 November 1917
• Court: Oregon Supreme Court

168 P. 614

86 Or. 361

MCLAUGHLIN v. HEAD.

Supreme Court of Oregon

November 13, 1917

In Banc.

Appeal from Circuit Court, Gilliam County; D. R. Parker, Judge.

Action by Rachel E. McLaughlin against William Head. Judgment for plaintiff, and defendant appeals. Reversed, and action dismissed.

This is an action to recover a balance due upon a promissory note. The facts are as follows: On February 1, 1908, J. O. Lewis and William Head executed, in favor of the plaintiff, their promissory note for $400, with interest at 8 per cent. per annum, payable one year after date. On February 1, 1909, the interest was paid to that date, and no other payments were made until January 25, 1911, when the administrator of the estate of J. O. Lewis paid the sum of $84.07, which was duly indorsed upon the note. On January 29, 1916, this action was instituted, and a demurrer was interposed upon the grounds (1) That the action was barred by the statute of limitations and (2) that there was a defect of parties defendant. The demurrer being overruled, the defendant declined to plead further and appeals.

R. R Butler, of The Dalles, for appellant. Murray D. Shanks, of Condon (Shanks & Horner, of Condon, on the brief), for respondent.

McBRIDE C.J. (after stating the facts as above).

The note was purely a joint one, and not joint and several, and the administrator of Lewis was not liable and could not have been sued thereon. 8 Corpus Juris, 851; 9 Cyc. 653; 6 R. C L. 880; Portland Trust Co. v. Havely, 36 Or. 234, 59 P. 466, 61 P. 346. The administrator of Lewis took his estate absolutely unincumbered by this debt, and he could not revive it, or in effect create a new obligation, by making an unlawful payment upon an obligation from which the estate had been discharged. In this respect he was a mere volunteer, without any interest in the subject-matter, and liable to the estate for the money unlawfully paid out. The estate not being a joint debtor, a payment made by the administrator was ineffectual to toll the statute. This is the effect of the reasoning in the leading case of Slater v. Lawson, 1 Barn. & Adolp. 396, 20 E. C. L. 533, and in Hathaway v. Haskell, 9 Pick. (Mass.) 42, although both of these cases go further, and apply the rule to notes which are joint and several, as well as to those which, like the one in suit here, are strictly joint.

The case of Sutherlin v. Roberts, 4 Or. 378, is cited as laying down a contrary doctrine; but, when examined closely it does not appear that the particular question here involved was discussed or considered. Roberts and his wife had executed a joint note and a mortgage to secure the same. Roberts died, and two years after the note became due his executors paid out of the proceeds of a sale of the real property the sum of $960 upon the note. The plaintiff brought suit against Mrs. Roberts to foreclose the mortgage against her half of the donation claim of herself and her deceased husband; his separate realty having already been sold to pay debts of the estate and applied upon the note above mentioned. Upon demurrer, as appears from the briefs, it was urged that the payment by the administrator was an involuntary payment, and therefore did not toll the statute. This was the sole question raised or discussed in the opinion, and court and counsel seem to have assumed that the estate of a deceased joint debtor was liable upon such joint obligation to the same extent as if it had been sole or joint and several, which concededly is not the case as to a simple contract debt. It will be noticed, also, that in Sutherlin v Roberts there was a mortgage given by the deceased, which bound the land irrespective of the note, and that the debt evidenced was a charge upon the land, as well...