Petty v. Tucker

• Decision Date: 13 May 1912
• Citation: 166 Mo. App. 98,148 S.W. 142
• Parties: PETTY v. TUCKER.
• Court: Missouri Court of Appeals

148 S.W. 142

166 Mo. App. 98

PETTY v. TUCKER.

Kansas City Court of Appeals. Missouri.

May 13, 1912.

Rehearing Denied June 17, 1912.

1. SUBROGATION (§ 23)—DEBT OF INSANE PERSON—PAYMENT—EFFECT.

Where testator at the instance of his sister paid the debt of his insane nephew, secured by a mortgage on real property, in order to save the property from sale, and thereby preserve it for the nephew in case he should be restored to reason, such payment was not the act of a mere volunteer, but created an equitable claim to subrogation.

2. LIMITATION OF ACTIONS (§ 28)—RIGHT TO SUBROGATION—ENFORCEMENT OF SECURITY— "OBLIGATION."

Where testator paid the secured debt of his insane nephew in order to preserve the security for the nephew in case he regained his reason, the nephew's liability to reimburse testator was an "obligation" within Rev. St. 1909, § 1889, declaring that actions on contracts, obligations, or liabilities, express or implied, shall be barred in five years, and hence an action to enforce testator's right to subrogation must be brought within that time.

3. LIMITATION OF ACTIONS (§ 146)—NEW PROMISE—STATUTES—"CONTRACT."

Rev. St. 1909, § 1889, provides that actions on contracts, obligations, or liabilities, express or implied, shall be barred in five years, and section 1909 declares that, in actions founded on any contract, no acknowledgment or promise thereafter made shall be evidence of a new or continuing contract, unless it be in writing. Held, that the word "contract," as used in section 1909, included any obligation to which section 1889 had fixed the bar of five years, and hence a new promise to reimburse testator for paying the secured debt of an insane person was insufficient to revive the obligation, unless in writing.

4. LIMITATION OF ACTIONS (§ 180)—PETITION—COMPLAINT—DEMURRER.

Where the facts stated in a petition showed the action to be barred by limitations, the petition is demurrable, unless it alleges further matter of exception which will remove the bar.

5. LIMITATION OF ACTIONS (§ 179)—NEW PROMISE—WRITING—PETITION.

Where a cause of action alleged was barred by limitations, but for a new promise which, in order to be effective, must have been in writing as required by Rev. St. 1909, § 1909, an allegation of a new promise in the petition without more would not be presumed in aid of the petition to have been in writing, but a promise in writing must be alleged.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

Action by William T. Petty against James H. Tucker. Judgment for defendant, and plaintiff appeals. Affirmed.

Frank P. Divelbiss and Jas. L. Farris, both of Richmond, for appellant. J. M. Davis & Son, of Chillicothe, for respondent.

ELLISON, J.

Plaintiff is the executor of the will of James P. Ward, deceased, and on the 19th of May, 1911, brought this action, asking to be subrogated to the rights of Caldwell county in a note and mortgage given by James H. Tucker to said county for borrowed money. The petition alleges that on the 4th of February, 1889, Tucker borrowed $250 of the school fund of said county, and gave his note (with mortgage on his land to secure the same), whereby he promised to pay that sum on the 4th of February, 1890; that he failed to pay the note, and on the 5th of August, 1895, it amounted, with interest, to the sum of $412.50, and the said county was threatening to foreclose the mortgage for nonpayment; that at that time defendant, Tucker (who was deceased's nephew), was insane and confined in a state asylum, and that his mother (deceased's sister) was residing on the lands mortgaged and dependent thereon for support, and requested deceased to pay the note due to the county so as to save the land from sale, and thereby preserve it for defendant, if he should be restored to his right mind; that thereupon, on said 5th day of August, 1895, with the expectation of being subrogated to the rights of the county, he paid the county $412.50, the full amount due on the note, and it, with the mortgage, was delivered to him, but by mistake there was an entry of satisfaction made on the margin of the record of the mortgage. It is then alleged that defendant was afterwards restored to his right mind, and released from the asylum, and that he afterwards, in the year 1907, promised deceased to repay him the full amount so advanced for him, but failed to do so; and that, after deceased's death, defendant promised plaintiff, as executor, to pay such sum and has wholly failed to do so. The prayer of the petition is for judgment for the amount thus paid for defendant, and that plaintiff, as executor, be subrogated to and succeed to the rights of Caldwell county under the mortgage and that such mortgage be foreclosed, etc. There was a demurrer to the petition on the ground that on its face it was disclosed that whatever cause of action plaintiff may have had was barred by the statute of limitations, and that the promise to pay after defendant was restored to his mind and health was not in writing. This demurrer was sustained, and plaintiff has brought the case here.

We are not inclined to adopt defendant's theory that plaintiff's intestate was a mere volunteer in paying defendant's debt, and therefore could not have a valid claim against defendant. Defendant was insane, and the payment was made by the intestate for the purpose of protecting his home, and thus preserving it to him in case he became of sound mind. It is true that in thus coming to the relief of an insane man he did not make him a legal debtor—did not create a debt at law. But he did by that act originate an equitable claim to subrogation. If one pays a debt of an insane man, which is secured by a valid mortgage on his real estate, for the purpose of preserving such real estate, he can be subrogated to the rights of the mortgagee. 37 Cyc. 467, and note 66; 3 Pomeroy's Eq. Jur. § 1300.

But all claims, legal or equitable, have a time limited for their assertion, and in this state it is well settled that the right of action accrues at the time the payment is made. Burrus v. Cook, 215 Mo. 496, 114 S. W. 1065; Singleton v. Townsend, 45 Mo. 379. When a surety signs a note for a principal, there is said to be an implied promise on the part of the latter to pay the surety whatever he may have to pay by reason of his suretyship; and, where there are several sureties, that there is an implied promise by each to pay the other whatever he may be compelled to pay for the principal over his proportion. These obligations are sometimes said not to arise from an implied promise, but that they come into existence upon equitable principles of justice and good conscience. Furnold v. Bank, 44 Mo. 336, 338. It is, however, clear that whatever may bring them into existence they are obligations due from the principal in the one case and the cosurety in the other. Therefore, section 1889, R. S. 1909, declaring that "actions upon contracts, obligations or liabilities, express or implied," shall be barred in five years, applies; and since the claim of plaintiff's intestate arose on the 5th of August, 1895, and this action was not brought until the 19th of May, 1911, it is barred by the statute just cited, unless saved by the subsequent promise of defendant made in 1907.

It is provided by section 1909 of the limitations statute that, "in actions founded on any contract, no acknowledgment or promise hereafter made shall be evidence of a new or continuing contract," unless it be made in writing. Plaintiff's position is that this section, by its terms, applies only to "contracts," and that since his cause of action does not arise upon, or out of, contract, but rather from equitable considerations of justice to which we have just referred, the statute requiring the promise to be in writing has no application, and a verbal promise is therefore binding. Now whether the obligation of a person whose debt has been paid for him while he was insane to save his estate arises out of a contract (implied), or from equitable principles of justice, it is, at all events, an obligation, and, as we have seen, it is barred in five years; and we think that the statute (section 1909), though using only the word "contract," means to include any obligation to which it has fixed a bar. That is to say, when the statute (section 1889) fixed a limitation of five years on an "obligation" to pay money, it meant by the word "contract," as used in section 1909, to require that there must be a written promise to revive such an obligation to pay money as exists in this case.

The facts stated in the petition showing the action to be barred, it became necessary to allege therein any matter of exception which would relieve the bar. In this case the promise subsequent to the bar not being a written promise did not revive the obligation, and a demurrer was the proper remedy. Burrus v. Cook, supra.

But plaintiff claims that his general allegation of a promise will be interpreted to mean a legal promise, and therefore he has in...