Taylor v. Forbes' Adm'x

• Decision Date: 25 June 1903
• Citation: 101 Va. 658,44 S.E. 888
• Parties: TAYLOR. v. FORBES' ADM'X et al.
• Court: Virginia Supreme Court

44 S.E. 888

101 Va. 658

TAYLOR.

v.FORBES' ADM'X et al.

Supreme Court of Appeals of Virginia.

June 25, 1903.

LIMITATIONS—AGREEMENT BY GRANTEE TO ASSUME DEBT—NATURE—PARTIES.

1. An agreement by the grantee in a deed to assume an outstanding debt is a simple contract, and not a specialty, and is barred in three years.

2. In a suit to subject land to the payment of lieus thereon, the heirs of a deceased co-owner are necessary parties.

Appeal from Corporation Court of Roanoke.

Bill by the West End Land Company against Martha H. Taylor and the personal representative, heirs, and devisees of L. May Forbes. Decree dismissing the bill as to all the defendants except Martha H. Taylor, and refusing to permit her to file a bill andamended bill of review, and she appeals. Affirmed in part, and reversed in part.

Scott & Staples, A. B. Coleman, and S. Hamilton Graves, for appellant.

C. A. McHugh and J. E. Yonge, for appellees.

BUCHANAN, J. C. P. Harrison purchased from the West End Land Company of Roanoke City two lots, paid part of the purchase price in cash, and executed two negotiable notes for the residue, each for $375, dated September 23, 1890, and payable respectively in one and two years from date. On the 25th of October following, Harrison sold and conveyed the lots to Mrs. Martha H. Taylor, the appellant, and Mrs. L. May Forbes, jointly, who paid the purchase price in cash, except the amount of the two notes executed by Harrison to the land company, which they assumed to pay. Mrs. Taylor paid her half of each note. To collect the other half of the notes the West End Land Company filed its bill, naming as defendants Mrs. Taylor and Mrs. Forbes. The latter having died after the notes matured and before the suit was brought, an amended bill was filed, making defendants thereto, in addition to Mrs. Taylor, the personal representative, heirs, and devisees of Mrs. Forbes, and the trustee in the deed of trust executed by Harrison upon the lots to secure the payment of the notes which he had executed to the land company, and whose payment had been assumed by Mrs. Taylor and Mrs. Forbes.

The personal representative of Mrs. Forbes filed a plea, in which she alleged that the j right of action had accrued more than three years prior to the institution of the suit; and, upon a hearing of the cause upon the supplemental bill, the papers formerly read, and the plea of the statute of limitations, and replication thereto, the plea was sustained, and the suit dismissed as to the personal representative, heirs, and devisees of Mrs. Forbes. From that decree, and a decree refusing to permit Mrs. Taylor to file a bill and an amended bill of review, this appeal was granted.

The first error assigned is that the court erred in holding that that portion of the purchase price of the lots for which Mrs. Forbes was personally liable, and unpaid, was barred by the statute of limitations.

There is no question that more than three years had elapsed from the maturity of the purchase-money notes, before the amended bill was filed, if the time between the death of Mrs. Forbes and the filing of the amended bill is counted. This period, it was claimed In the petition for appeal, should be excluded, in ascertaining the time during which the statute had been running. That claim was abandoned in argument.

The contention of the appellant is that the statute of limitations applicable to the case is ten years, and not three, as the trial court held.

The determination of that question depends upon the character of the contract by which Mrs. Taylor and Mrs. Forbes assumed the payment of the notes in suit. The deed by which Harrison conveyed the lots to Mrs. Taylor and Mrs. Forbes states that the parties of the second part assume, and covenant to pay off and discharge, the said notes. Neither Mrs. Taylor nor Mrs. Forbes signed the deed, but they accepted it and took possession of the lots under it.

The authorities are agreed that, by accepting a deed like the one under consideration, the grantee becomes liable to perform any promise or undertaking therein imposed upon him, but they are in conflict as to the character of the undertaking.

It is held in some of the states that an agreement of the grantee in a deed signed and sealed by the grantor only is in the nature of a covenant under seal, and consequently a specialty. In others it is held that such an agreement is in the nature of an assumpsit or implied contract arising from the acceptance of the deed, and consequently a simple contract.

Counsel have not cited,...