Seig v. Acord's Ex'r
| Decision Date | 13 September 1871 |
| Citation | 62 Va. 365 |
| Parties | SEIG, adm'r, v. ACORD'S ex'or. |
| Court | Virginia Supreme Court |
1. A debt which is barred by the statute of limitations at the death of the debtor, can not be revived by the promise of the personal representative to pay it.
2. Where there are two joint administrators or executors, to one of whom the deceased was indebted in his lifetime, for money loaned so long before the death of the debtor, that at the time of his death it was barred by the statute, the debt cannot be revived by the admission of the other administrator or executor that the money had been loaned and was due.
John Falls, of Augusta county, died intestate in the year 1825 leaving a widow and several infant children; and Mrs. Falls and her father, Jacob Acord, qualified in the County court of Augusta, as administratrix and administrator on his estate. Acord seems to have been the acting administrator, and he settled his first administration account before commissioners appointed by the County court in 1832. The last item of credit in this account is: " Lent money to John Falls by Jacob Acord, no interest charged, $409. He again settled his account in 1843, when the commissioner reported the estate of Falls to be indebted to him on the 1st of April 1843, in the sum of $1,029.93.
In 1845 Acord filed his bill in the Circuit court of Augusta county against the heirs of John Falls and Paul Seig, a purchaser of the interests of one of the heirs of Falls, to subject the land of which Falls died possessed, to the payment of the amount reported to be due him. This bill was taken for confessed as to all the defendants; and in June 1850, a decree was made directing a commissioner to take an account of the amount due to the plaintiff; and also appointing commissioners to sell the land. And in November 1848, the commissioners reported the sale at the price of $2,900.
Paul Seig having died, Henry B. Seig, his administrator, and one of his heirs, in May 1850, filed his answer, in which he claims to surcharge and falsify the acccounts of Acord settled before the County court; and among other credits in said accounts, he objected to the item of credit for $409 money lent; on the grounds that there was no evidence to sustain it, and that it was barred by the statute of limitations.
In October 1850, Commissioner Hendren made his first report upon the accounts of Acord. He made two statements, in one of which the credit of $409 was allowed. This report was excepted to by Seig on this and other grounds.
In February 1853, the report was by consent of parties recommitted to Commissioner Hendren; and in September 1853 he filed his report spoken of in the proceedings as No. 2. In the account stated in this report, he makes Acord creditor of Falls' estate, on the 1st of November 1850, in the sum of $1,387.08, of which $1,223 was principal; and the credit of $409 is allowed in this account. The defendant Seig filed exceptions to this report, and among others to this credit for $409. As to this credit, one of the commissioners who settled the account of Acord in 1832, testifies that the charge of $400 was stated by Acord to have been money loaned by him to his son-in-law, Falls, to aid him in the purchase of the tract of land he had bought from the heirs of George Falls; that he had never taken his note for it, but had merely charged him with it on his books; that Mrs. Falls, who was present during the settlement of the account, and heard the statement of Mr. Acord, said that she knew of her husband having borrowed such a sum, and that the charge was correct. The witness further stated that the voucher 37, which was for this credit, he believes was cut from the book of the plaintiff; and that that, and the admission of the administratrix, was the only evidence upon which the credit was given. The voucher referred to by the witness charges John Falls with $400 lent him by Acord on the 26th of August 1819.
On the 9th of February 1855, the cause came on to be heard, when the court held that the right of the plaintiff to have a credit for the $400 loaned to Falls, depended upon whether five years had elapsed from the time it was demandable to the death of said Falls; and as this did not satisfactorily appear, the cause was recommitted to Commissioner Hendren to take an account of the debts paid by Acord for Falls, or for his estate, which bound his land, and also to ascertain whether the time when the loan of $400 was to have been returned, was or was not more than five years before Falls' death.
In June 1855, Commissioner Hendren filed his report No. 3, based upon the decree of the 9th of February 1855. He reports that the credit of $409 was demandable more than five years before the death of John Falls, which occurred in August or September 1825; and that credit is therefore rejected from the account; and he reports the balance due to Acord on the 1st of November 1850, to be $208, of which, $183.39 was principal. This report was excepted to by the plaintiff.
Acord having died during the pendency of the cause, it was revived in the the name of his executors, and they presented what the court calls an informal petition, for a rehearing of the decree of the 9th of February 1855; and the cause came on to be heard on the 29th of November of the same year, when the court confirmed the report of the sale of the land, allowed the petition for a rehearing to be filed; and adopting Commissioner Hendren's report No. 2, decreed that the decree of the 9th of February 1855 be set aside; that the exceptions by plaintiffs and defendants to the report No. 2, be overruled, and the report confirmed; that the commissioner collect the purchase money and convey the land to the purchaser; and out of the money collected pay to the plaintiffs the sum of $1,387.08, with interest on $1,223 part thereof from the 1st day of November 1850, till paid. And, thereupon, Seig obtained an appeal to the Court of appeals.
Michie & Michie and Young, for the appellant.
Baldwin and Fultz, for the appellee.
The only question raised upon the record, in the argument of this cause, is with regard to the credit of $409, allowed Acord, the appellant's intestate, in the settlement of his administration account, with the estate of John Falls, deceased.
John Falls, the intestate, died in September 1825. Letters of administration on his estate were granted to his widow and Acord jointly. In 1832 Acord made a settlement of his administration accounts, with commissioners of the county court, appointed for the purpose, on his motion. In said settlement Acord was allowed to retain, out of the assets which came to his hands, his account of $409, against the intestate, for money loaned, dated August 26th, 1819. There was no bond or note, or other evidence of the debt, except the statement or admission of the administratrix, (proved by one of the...
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