Shepherd v. Thompson

• Citation: 30 L.Ed. 1156,7 S.Ct. 1229,122 U.S. 231
• Parties: SHEPHERD v. THOMPSON
• Decision Date: 27 May 1887
• Court: United States Supreme Court

122 U.S. 231

7 S.Ct. 1229

30 L.Ed. 1156

SHEPHERD v. THOMPSON.

May 27, 1887.

This was an action brought March 11, 1880, by John W. Thompson against Alexander R. Shepherd, upon two promissory notes, dated March 10, 1873, made by the defendant and payable to the plaintiff, the one for $7,000 in two years, and the other for $8,000 in three years, with interest at the yearly rate of 8 per cent. The defendant pleaded the statute of limitations. The record transmitted to this court showed that the case was tried twice, and that at each trial the plaintiff put in the following evidence: (1) The notes sued on; (2) a deed of trust of the same date, in the usual form of mortgages of real estate in the District of Columbia, and recorded in the land records for the District, lib. 712, fol. 128, by which the defendant conveyed to the plaintiff certain land described, in trust to secure the payment of these and one other note; (3) a deed dated November 15, 1876, by which the defendant conveyed his property and choses in action, including a claim against the United States, for the use and occupation of the premises No. 915 E street north-west, in the city of Washington, to George Taylor and others, in trust to apply for the benefit of his creditors; (4) an instrument signed by the defendant and A. C. Bradley, assented to in writing by Taylor and his co-trustees, the body of which is as follows: 'In consideration of the indebtedness described in the deed of trust to William Thompson, trustee, executed March 10, 1873, and recorded in liber No. 712, fol. 128, of the land records of the District of Columbia, the demand and claim of A. C. Bradley to the use of A. R. Shepherd and others against the United States for the use and occupation of the premises No. 915 E street north-west, and all the proceeds thereof, and the moneys derived therefrom, are hereby pledged and made applicable to the payment of said indebtedness, with interest thereon at the rate of eight per cent. per annum until paid; and it is hereby covenanted and agreed that any draft or check issued in payment or part payment of said claim shall be indorsed and delivered to the trustee named in said trust, and the proceeds thereof, less all proper costs and charges, be applied to the payment of said indebtedness, with interest as aforesaid, or to so much thereof as the sum or sums of money so received is or are sufficient to pay. Witness our hands this twenty-first day of June, 1877.'

At the first trial the judge ruled that this instrument was insufficient to take the case out of the statute of limitations, and a verdict and judgment were rendered for th defendant, which, upon a bill of exceptions of the plaintiff, were set aside at the general term. 1 Mackey,385. At the second trial. the judge, against the objection and exception of the defendant, instructed the jury that this instrument was evidence of a new promise, which took the notes sued on out of the statute of limitations. A verdict and judgment were rendered for the plaintiff, and a bill of exceptions to this instruction was tendered and allowed. This judgment was affirmed in general term, and the defendant sued out this writ of error.

A. C. Bradley and Wm. F. Mattingly, for plaintiff in error.

M. F. Morris and H. H. Wells, for defendant in error.

Mr. Justice GRAY, after stating the case as above reported, delivered the opinion of the court.

The statute of limitations in force in the District of Columbia is the statute of Maryland, which, so far as applicable to this case, closely follows the language of the English statute, (21 Jac. I, c. 16, § 3,) but bars an action on a promissory note or other simple contract in three years after the cause of action accrues. St. Md. 1715, 1 Kilty, Laws, c. 23, § 2; Laws D. C. 1868, p. 284. The promissory notes sued on were payable respectively on March 10, 1875, and March 10, 1876, and the action was brought March 11, 1880. The question is therefore whether the instrument signed by the defendant on June 21, 1877, is evidence of a sufficient acknowledgment or promise to take the case out of the statute.

The principles of law by which this case is to be governed are clearly settled by a series of decisions of this court. The statute of limitations is to be upheld and enforced, not as rest- ing only on a presumption of payment from lapse of time, but, according to its intent and object, as a statute of repose. The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to pay it, made either before or after the bar of the statute is complete. But in order to continue or to revive the cause of action, after it would otherwise have been barred by the statute, there must be either an express promise of the debtor to pay that debt, or else an express acknowledgment of the debt, from which his promise to pay it may be inferred. A mere asknowledgment, though in writing, of the debt as having once existed, is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor.

In King v. Riddle, 7 Cranch, 168, a deed dated July 15, 1804, by which the defendant recited that certain persons had become his sureties for a certain debt, and had paid it, and that he was desirous to secure them as far as he could, and assigned to one of them certain bonds in trust to collect the money and distribute it equally among them, was admitted in evidence in an action by one of them against him for money paid, to take the case out of the statute of limitations of Virginia. The exact form of the deed is not stated in the report, but that it expressly recognized the debt to the plaintiff to be still due is evident from the opinion, in which Chief Justice MARSHALL said: 'Although the court is not willing to extend the effect of casual or accidental expressions further than it has been, to take a case out of that statute, and although the court might be of opinion that the cases on that point have gone too far, yet this is not a casual or incautious expression. The deed admits the debt to be due on the fifteenth of July, 1804, and five years had not afterwards elapsed before the suit was brought.' 7 Cranch, 171.

In Clementson v. Williams, 8 Cranch, 72, in an action on an account against two partners, one of whom only was served with process, a previous statement of the other, upon the account being presented to him, 'that the said account was due, and that he supposed it had been paid y the defendant, but had not paid it himself, and did not know of its being ever paid,' was held insufficient to take the account out of the statute; and Chief Justice MARSHALL said: 'The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away. In this case there is no promise, conditional or unconditional; but a simple acknowledgment. This acknowledgment goes to the original justice of the account. But this is not enough. The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not then sufficient to take the case out of the act that the claim should be proved or be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due.' 8 Cranch, 74.

Chief Justice MARSHALL afterwards pointed out that in that case, although the partnership had been dissolved before the statement was made, the case was not determined upon that point, but upon the insufficiency of the acknowledgment; and added that, upon the principles there expressed by the court, 'an acknowledgment which will revive the original cause of action must be unqualified and unconditional. It must show positively that the debt is due in whole or in part. If it be connected with circumstances which in any manner affect the claim, or if it be conditional, it may amount to a new assumpsit, for which the old debt is a sufficient consideration; or, if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown.' Wetzell v. Bussard, 11 Wheat. 309, 315.

In Bell v. Morrison, 1 Pet. 351, Mr. Justice STORY fully discussed the subject, and, after dwelling on the importance of giving the statute of...