Windom v. Howard
| Decision Date | 23 April 1894 |
| Parties | WINDOM v. HOWARD et al. |
| Court | Texas Supreme Court |
Action by Howard and Hume, administrators, against J. G. Windom. To a judgment of the court of civil appeals (26 S. W. 175) reversing a judgment for plaintiffs, they bring error. Reversed, and judgment of lower court affirmed.
W. A. Evans, Dillard & Muse, and Throckmorton & Garnett, for plaintiffs in error. D. P. Johnson, for defendant in error.
Thomas C. Bean, in his lifetime, sold to J. G. Windom, the defendant in error, a tract of land, for the purchase money of which the latter executed his promissory note, payable December 25, 1881. No express lien for securing the note was reserved, either in the deed or in the note itself, but an implied lien was created by operation of law. The note has never been fully paid. Bean died in July, 1887, and in September, 1890, the plaintiffs in error were appointed administrators of his estate. On the 12th day of March, 1891, they instituted this suit, which was originally an action of trespass to try title, against the defendant in error, for the recovery of the land so sold by Bean to him. The defendant having answered, on the 20th day of July, in the same year, they filed a supplemental petition, alleging that the defendant had given the note now in controversy for the purchase money of the land; that it had never been paid in full; and that on February 1, 1887, he had written their intestate a letter in which he had acknowledged the justness of the debt, — and prayed that, in the event it should be held that they were not entitled to recover the land, they should have a judgment for the unpaid balance of the note, and a decree enforcing a lien on the land for its payment. An exception to the supplemental petition, upon the ground that the matter therein contained was not properly set up in a pleading of that character, was sustained; and thereupon the plaintiffs filed an amended original petition, alleging the same facts averred in the supplemental petition, and, in addition thereto, that the defendant had written Bean two other letters, dated, respectively, January 8, 1886, and December 9, 1886, acknowledging the justness of the demand. The defendant excepted to the amended petition on the ground that it showed upon its face that the debt was barred. The court overruled the exception, and, the facts alleged having been established upon the trial, gave judgment for the plaintiffs, with a decree enforcing the lien.
The letters relied upon to remove the bar of the statute of limitations are substantially as follows: (1) etc. (2) (3) etc.
Administration not having been granted upon Bean's estate during the first 12 months after his death, under our law the running of the statute of limitations was suspended during that period. But it is apparent from a short calculation that the letter of January 8, 1886, of itself, cannot avail the plaintiffs in this suit. More than five years had elapsed from its date when it was first declared on, and even when the supplemental petition was filed. So, also, more than five years intervened between the date of the second letter (December 9, 1886) and the filing of the amended petition, on February 16, 1892, in which, for the first time, the promise contained in that letter was alleged. The supplemental petition of July 20, 1891, contains no averment with reference either to the first or second letter. It is well settled in this state that in cases of this character the new promise is the cause of action, and that in order for the plaintiff to avail himself of it, in maintaining his suit, it must be declared on as such in his petition. Coles v. Kelsey, 2 Tex. 541. Following this doctrine to its logical conclusion, this court has also held that when a new promise is pleaded by amendment the statute of limitations runs until the filing of the amendment. Erskine v. Wilson, 20 Tex. 78. The implied promise contained in the second letter was therefore barred when it was first declared on in this...
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Fitzgerald v. Flanagan
...Edwards, 9 Wheat. 490, 6 L. Ed. 142;McLane v. Allison, 60 Kan. 441, 56 Pac. 747;Longstreet v. Brown (N. J. Ch.) 37 Atl. 56;Howard v. Windom, 86 Tex. 560, 26 S. W. 483;Neosho Valley v. Huston, 61 Kan. 859, 59 Pac. 643. This exact question was presented to the Supreme Court of Kansas in McLan......
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Starr v. Ferguson
...was only one indebtedness between the parties and that was on the note. The rule often quoted is thus stated in Howard & Hume v. Windom, 86 Tex. 560, 566, 26 S.W. 483, 485: "An unqualified acknowledgment of an existing debt implies a promise to pay it, and is sufficient, unless the acknowle......
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