Moore v. Moore

• Court: Georgia Supreme Court
• Writing for the Court: LITTLE, J.
• Citation: Moore v. Moore, 30 S. E. 535, 103 Ga. 517 (Ga. 1898)
• Decision Date: 04 March 1898
• Parties: MOORE v. MOORE.

30 S.E. 535

103 Ga. 517

MOORE v. MOORE.

Supreme Court of Georgia

March 4, 1898

Syllabus by the Court.

1. This case, in so far as the questions made relate to the attaching of the bar of the statute of limitations, is controlled by the decision of this court in Black v. Holland (Ga.) 27 S.E. 671, which, upon a review thereof, is affirmed.

2. The statutes relating to the limitation of actions being expressly made applicable to courts of equity, those courts will not, where the bar of the statute has attached, remove the same merely because of a mutual mistake of law of the parties as to the legal sufficiency of a credit entered upon an evidence of debt to constitute a new promise from the date of which the statute would begin to run.

Error from superior court, Taliaferro county; John C. Hart. Judge.

Petition in equity by J. P. Moore, administrator of the estate of Enox Moore, deceased, against Jesse Moore, Jr., as administrator of the estate of D. A. Moore, deceased. Judgment for defendant, and plaintiff brings error. Affirmed.

Saml. H. Sibley, for plaintiff in error.

Thos E. Watson and Horace M. Holden, for defendant in error.

LITTLE J.

On March 28, 1887, D. A. Moore executed a promissory note for $415.79, payable one day after date, to J. P. Moore, or bearer, administrator of the estate of Enox Moore, deceased. Upon this note the following entries of credits appeared "Received on the within note four dollars and 70/100 August 17th, 1892." "Received on the within note six hundred pounds old iron, at 2 cts.,--$12.00,--November 1st, 1893." On January 21, 1897, J. P. Moore, as administrator of Enox Moore, filed an equitable petition against Jesse Moore, Jr., as administrator of the estate of D. A. Moore, deceased, in which he alleged the execution by D. A. Moore of the note above set out; and further alleged that the note was not barred by the statute of limitations, because the credit thereon of $4.70 was made by Tillman Moore, acting as agent of D. A. Moore, the maker, by his direction, and in his presence, and constituted a new period from which the statute should run; that, if said credit was insufficient for this effect, the plaintiff was, notwithstanding, entitled to the relief prayed by reason of the facts stated below. The making of said entry of credit occurred under the following circumstances: Plaintiff required D. A. Moore to renew or pay the note, because it was about to become barred. Said Moore stated that he had nothing with which to pay, but that he would renew the same by making a credit on the note of an amount due to him, saying that that would be sufficient to renew the note, and make it as good as a new note. D. A. Moore then handed said Tillman Moore the note, and asked him to make the entry, and dictated the same with the common intention and belief that it would relieve against the bar of the statute, and that plaintiff relied upon the entry and the statement of its sufficiency, and made no further effort to collect the note until it became, as contended by defendant, barred. That at the time the entry was made both plaintiff and D. A. Moore believed that the effect would be to relieve the bar of the statute, and had it made on the note for that purpose, and the same was an honest mistake, concurred in by both the parties, as to the effect of the writing, and operates to inflict gross injustice on the plaintiff, and gives an unconscientious advantage to the other side. That the consideration of the note was for money actually borrowed of the plaintiff as administrator by D. A. Moore. That, had D. A. Moore or Tillman Moore signed the credit, the same would have been sufficient in law. Both of them and plaintiff intended the same to be a sufficient entry for that purpose, and through a mistake of law the same was not signed. It was also a case of a defective execution of a power vested in Tillman Moore through a mistake as to the mode proper to its execution, and is remedial in equity. At the time of making the entry, D. A. Moore assured plaintiff that its effect would be to renew the note as effectually as the giving of a new obligation, and plaintiff was ignorant of the contrary, and relied upon said assurance until the note became barred. D. A. Moore, also, to the day of his death, and Jesse Moore, Jr., who transacted the business of D. A. Moore as his agent, frequently admitted and recognized the validity of the note, and promised to make payment upon the same, thereby lulling plaintiff into inactivity, and preventing him from insisting upon having a new note, which his brother, D. A. Moore, would at any time prior to his death have given. Wherefore it would be a fraud upon plaintiff to allow D. A. Moore or his administrator to controvert the truth of said assurance. Upon this state of facts the plaintiff, waiving discovery, prayed that the entry be declared sufficient to prevent the bar of the statute; that, if necessary, the same be decreed to be reformed and re-executed so as to attain the intention of the parties; and that he have judgment against defendant, as administrator of D. A. Moore, for the amount due upon the note. Upon demurrer filed, the action was dismissed for the want of equity and on account of the bar of the statute of limitations, and the plaintiff excepted.

By section 3767 of the Civil Code it is provided that all actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable. It is declared also in section 3788 of the Civil Code that a new promise, in order to renew a right of action already barred, or to constitute a point from which the limitation shall commence running on a right of action not yet barred, must be in writing, either in the party's own handwriting, or subscribed by him, or some one authorized by him; and in section 3789 of the Code it is declared that a payment entered upon a written evidence of debt by the debtor, or any other written acknowledgment of the existing liability, is equivalent to a new promise to pay. That the bar of the statute, under the facts of this case, tested by the above provisions of law, had attached to the note sued on, is clearly established by the decision of this court in the case of Black v. Holland (Ga.) 27 S.E. 671, wherein it was ruled that: "A credit on a promissory note, in order to constitute a new point from which the statute of limitations will commence to run, must be in writing, and signed by the maker, or by some one by him authorized; or, if unsigned, such credit must be in the handwriting of the maker himself. An unsigned credit, written by an agent of the maker, will not suffice to renew the promise, or to constitute a new point from which the statute will run." On the argument here, however, counsel for plaintiff in error asked leave to review the case above cited, which was granted. The position of the plaintiff in error seems to be: First, that as a matter of law the entry of credit in 1892 was sufficient to constitute a new point from which the statute would begin to run; and, second, that if the bar of the statute, in contemplation of law, had attached, the plaintiff was in equity entitled to the relief prayed. These respective contentions will be considered seriatim.

1. Formerly, any admission of a debt, or any promise to pay a debt, neutralized the effect of the statute of limitations on the debt; and as every partial payment of a debt implied an admission of the debt, and a promise to pay the balance of the same, a partial payment had the effect to neutralize the effect of the statute of limitations upon the debt. Holland v. Chaffin, 22 Ga. 343. But by the act of February 20, 1854, which, however, was not published with the acts of the session to which it belongs, and is to be found in the publication of the Acts of 1855-56, p. 238, it was provided that: "From and after the passage of this act no promise, acknowledgment, or admission, of a debt, made after the statute of limitations has commenced running shall be sufficient to revive the same, unless such promise, acknowledgment or admission, shall be reduced to writing, or some note or memorandum thereof made in writing, and subscribed by the person or persons making the same, or some other person thereunto by him lawfully authorized." The codifiers, departing somewhat from the exact language of the statute, made use of and embodied in sections 2875 and 2876 of the Code of 1863, the same language as is now found in sections 3788 and 3789 of the Civil Code, hereinbefore quoted. Thus it will be seen that the Code provisions accept the debtor's own handwriting as a substitute for signing, and recognize a credit entered by the debtor himself, or any other written acknowledgment of the existing liability, as equivalent to an express promise. Shumate v. Williams, 34 Ga. 245. In determining whether the ruling made in the case of Black v. Holland, supra, is sound, it will be of practical utility to note the construction given the statute by this court in adjudications arising upon various conditions of facts. In the case of Caldwell v. Ferrell, 20 Ga. 94, where the plaintiff sought to relieve the bar of the statute by a verbal acknowledgment on the part of the defendant that he owed the note, and agreed to pay it, it was ruled that since the act of February 20, 1854, all promises or acknowledgment relied on to remove the bar of the statute of limitations must be in writing. Such was the ruling also in the cases of Holland v. Chaffin, 22 Ga. 343, supra; Burns v. Harvell, 32 Ga. 602; Moseley v. Jenkins, 65 Ga. 49. Also since the passage of that act a partial payment of a debt is insufficient to countervail the effect of the statute. Holland v. Chaffin, 22 Ga....