Soble v. Herman, Record No. 2237.

• Decision Date: 10 June 1940
• Docket Number: Record No. 2237.
• Citation: 175 Va. 489
• Court: Virginia Supreme Court
• Parties: J. SOBLE v. NETTIE L. HERMAN, ETC.

Page 489

175 Va. 489

J. SOBLE v. NETTIE L. HERMAN, ETC.

Record No. 2237.

Supreme Court of Virginia, Wythebille.

June 10, 1940.

Present, All the Justices.

1. APPEAL AND ERROR — Scope of Review — Questions Which Might Have Been but Were Not Argued. — In the instant case, a suit to subject real estate of a decedent to the payment of a debt due by him, there were seven distinct and separate grounds of demurrer to the bill, but the argument was confined to whether or not the statute of limitations applied.

Held: That, under the circumstances, the Supreme Court of Appeals would confine its consideration to the question argued, and would not consider those which might have been but were not.

2. LIMITATION OF ACTIONS — New Promise or Acknowledgment — Oral Promise by Executrix and Sole Beneficiary Not to Plead Statute. — Under sections 5813 and 5406 of the Code of 1936, an oral promise not to plead the statute of limitations, made by the executrix and sole beneficiary of an estate, is not sufficient to remove the bar of the statute in a suit filed by the creditor to subject real estate of which decedent died seized and possessed to the payment of a debt due by decedent.

3. FRAUDS, STATUTE OF — Promise to Answer for Debt of Another — Promise of Sole Beneficiary to Pay Note of Decedent — Case at Bar. — In the instant case, a suit to subject real estate of a decedent to the payment of a debt due by him, defendant, executrix and sole beneficiary under the will, filed a plea of the statute of limitations. Complainant relied upon an oral statement made to him by defendant that "she would never see him lose anything and would never plead the statute of limitations against said note, and that she would pay it."

Held: That since the debt involved was an obligation of the deceased and not of defendant, her promise was a promise to answer for the debt of another, upon which no action could be maintained unless it was in writing signed by the party to be charged.

4. DESCENT AND DISTRIBUTION — Liability to Creditors — Sole Beneficiary Not Debtor to Creditor of Decedent — Case at Bar. — In the instant case, a suit to subject real estate of a decedent to the payment of a debt due by him, defendant, executrix and sole beneficiary under the will, filed a plea of the statute of limitations. Complainant relied upon an oral statement made to him by defendant that "she would never see him lose anything and would never plead the statute of limitations against said note, and that she would pay it." Complainant contended that the promise not to plead the statute of limitations was enforceable under the provisions of section 5821 of the Code of 1936.

Held: That the fact that defendant was the sole beneficiary of the estate did not change the relation of the debtor and the creditor, nor did it make defendant a debtor to the creditor of decedent.

5. HEIRS AND DEVISEES — Liability for Debts of Ancestor — Rule Stated. — The creditor of an estate has no right to charge the heir or devisee with the payment of a debt due by the ancestor, since there is no privity of contract between the parties.

6. LIMITATION OF ACTIONS — New Promise or Acknowledgement — Section 5821 of the Code of 1936 — Meaning of "Promise." — The word "promise" as used in the first sentence of section 5821 of the Code of 1936, relating to promises not to plead the statute of limitations, means the obligation of the person liable.

7. LIMITATION OF ACTIONS — New Promise or Acknowledgment — Section 5821 of the Code of 1936 — Inapplicable to Promise by Executrix and Sole Beneficiary — Case at Bar. — In the instant case, a suit to subject real estate of a decedent to the payment of a debt due by him, defendant, executrix and sole beneficiary under the will, filed a plea of the statute of limitations. Complainant relied upon an oral statement made to him by defendant that "she would never see him lose anything and would never plead the statute of limitations against said note, and that she would pay it." Complainant contended that the promise not to plead the statute of limitations was enforceable under the provisions of section 5821 of the Code of 1936.

Held: That there was no merit in the contention, since section 5821 of the Code of 1936 would apply only if the promise were made by the person liable, in this case the testator.

8. LIMITATION OF ACTIONS — New Promise or Acknowledgment — Section 5821 of the Code of 1936 — Meaning of "Promisor." — The word "promisor" as used in section 5821 of the Code of 1936, relating to promises not to plead the statute of limitations, refers to the person making the promise, or to some other person who has become legally bound to discharge the obligation, and does not refer to some third person who ultimately may be benefited by the enforcement of the statute of limitations.

9. STATUTES — Construction — Statutes in Pari Materia. — Statutes which are not inconsistent with one another and which relate to the same subject matter are held to be in pari materia and should be construed together.

10. LIMITATION OF ACTIONS — New Promise or Acknowledgement — Requisites. — A subsequent promise or acknowledgment, to take the case out of the statute of limitations, ought to be such a one as if declared upon would support an action of itself; that is, it must be an express promise to pay, or such an acknowledgment of a balance then due, unaccompanied by reservations or conditions, as that a jury ought to infer from it a promise to pay.

11. LIMITATION OF ACTIONS — New Promise or Acknowledgment — Effect of Written Promise or Acknowledgment. — The effect of a subsequent written promise to pay an old debt, or a written acknowledgment from which a promise to pay the old debt may be implied, is to revive the period of limitation of the original obligation, and the new period of limitation begins to run from the date of the subsequent promise or acknowledgment.

12. LIMITATION OF ACTIONS — Fraud and Mistake — Mere Lapse of Time or Delay. — In relation to fraud and the statute of limitations, no lapse of time, no delay in bringing the suit, however long, will defeat the remedy in cases of fraud or mutual mistake, provided the injured party, during all this interval, was ignorant of the fraud or mistake without fault on his part.

13. FRAUD AND DECEIT — Statements Relating to Future — Must Relate to Present or Pre-Existing Fact. — Fraud must relate to a present or a pre-existing fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future events.

14. FRAUD AND DECEIT — Statements Relating to Future — Promise to Perform Act in Future. — A mere promise to perform an act in the future is not, in a legal sense, a representation, and a failure to perform it does not change its character.

15. LIMITATION OF ACTIONS — New Promise or Acknowledgment — Oral Promise Not to Plead Statute Unenforceable. — An unfulfilled oral promise to pay a just obligation, made before or after the bar of the statute, is not enforceable and an unfulfilled oral promise not to plead the statute of limitations belongs in the same category.

16. LIMITATION OF ACTIONS — New Promise or Acknowledgment — Section 5821 of the Code of 1936 — Meaning of "Fraud." — "Fraud" as used in section 5821 of the Code of 1936, making a promise not to plead the statute of limitations enforceable whenever the failure to enforce it would operate a fraud on a promisee, must relate to a present or pre-existing fact, and cannot be established by allegation or proof of a non-fulfilled, naked, oral promise.

17. LIMITATION OF ACTIONS — New Promise or Acknowledgment — Section 5821 of the Code of 1936 — Non-Fulfilled, Naked, Oral Promise Not Fraud — Case at Bar. — In the instant case, a suit to subject real estate of a decedent to the payment of a debt due by him, defendant, executrix and sole beneficiary under the will, filed a plea of the statute of limitations. Complainant contended that a failure to enforce an oral promise not to plead the statute of limitations "would operate a fraud on" him, within the meaning of section 5821 of the Code of 1936, making such promise enforceable under such circumstances.

Held: That there was no merit in the contention of complainant, since the fraud to make a promise enforceable under section 5821 of the Code of 1936 must relate to a present or pre-existing fact and cannot be established by allegation or proof of a non-fulfilled, naked, oral promise.

18. STATUTE — Construction — Construed So as to Advance Intention — Conflict and Inconvenience to Be Avoided. — The words which the Legislature has used in a statute should be construed in such manner as will advance the intention of the act, prevent inconvenience, and avoid conflict with settled policy.

Appeal from decrees of the Circuit Court of the city of Suffolk. Hon. James L. McLemore, judge presiding.

The opinion states the case.

Herman A. Sacks and James G. Martin & Son, for the appellant.

Thomas L. Woodward and M. Anderson Maxey, for the appellee.

HUDGINS, J., delivered the opinion of the court.

The original bill filed in this cause alleged: (1) That Benjamin Herman, a citizen of Maryland, died in 1931 testate, and his widow, Nettie L. Herman, who was named the sole beneficiary, qualified as his executrix; (2) that, at the time of his death, he was indebted to complainant, J. Soble, in the sum of $2,500, evidenced by a note due 90 days from July 14, 1931; (3) that Soble had been paid the sum of $1,000 on his note out of the personal estate, but that there was not sufficient personal property out of which this debt could be paid in full; and (4) that Herman's estate owned certain real estate situated in the city of Suffolk, Virginia, on which other parties held prior liens, evidenced by a deed of trust and a lease. The prayer of the bill was that the real property be sole to discharge the debt owing to complainant.

To the bill Nettie L. Herman, as executrix and in her own...