Chrisman v. Irwin

1. Limitations — Payment.— An allowance by a Probate Court of a demand against the estate of one of the makers of a promissory note which had become barred by the statute of limitations, and payments made upon such allowance by the administrator of the deceased maker will not deprive the other joint makers of such note of their defence of the bar of the statute.

Error to Jackson County Circuit Court. This is a suit in attachment on a promissory note for $2,000', dated September 20, 1847, and payable six months after date, signed by J. C. Irwin, S. EL Woodson and S. S. Bartleson. The following endorsements are on the note : “Woodson, Irwin, and Bartleson, to Jabez Smith. — Note $2,000, due March 20, 1847. — Allowed against estate of S. B., July 18,1859, $554.64, balance of his third of note.— 1849, Nov. 16, by cash $200 of S. B. — 1848, Nov. 22, by cash received of Joseph Irwin & K., $500.45 ; by cash received of Joseph Irwin, $244.86. — 1849, Aug. 15, by cash of Sidney Bartleson, $200.” The suit was commenced March' 19, 1864, against Irwin and Woodson, the other maker of the note, Bartleson, being dead. There was no service on the defendant Woodson, but a publication as to the other defendant, Irwin, who appeared and answered. Irwin set up the statute of limitations in bar of the action. The case was tried by the court without a jury. The evidence showed that Bartleson died in ¡the year 1858, and that the credit of $554.64, endorsed on the note, was for the amount allowed in the Probate Court of Jackson county against the estate of Bartleson on the 18th day of July, 1859, and was for the one-third part of said note, and was claimed as the proportion of the not edue from said Bartleson. The defendant Irwin asked the court to declare the law to be that, as to him, the note was barred by the statute of limitations; but the court refused so to declare the law, and gave judgment for the plaintiff. As to Irwin the statute of limitation is clearly a valid bar to the action. The payment alleged to have been made on the 18th day of July, 1859-, and which it is claimed takes the case out of the operation of the statute, cannot have that effect. I. It is not such a payment as is contemplated by R. C. 1855, p. 1058, § 14. That must be a voluntary payment. Here it is the endorsement of a judgment allowed in the Probate Court against the estate of a deceased joint maker of the note. A judgment is not a payment. II. Even if such allowance were a payment, it was not made until after the statute had become a complete bar. The note was due March 20,1848. It was barred March 20,1858. Such alleged payment was not made until July 18, 1859. (Bell v. Morrison, 1 Pet. 873.) III. But in this case the community of interest had been severed by the death of Bartleson, and a payment or acknowledgment by his administrator cannot have the effect to revive the debt as against Irwin. (Ang. Lim. §§ 251-2; Root v.. Bradley, 1 Kan. 437; Hathaway v. Haskell, 9 Pick. 42 ; Atkins v. Fredgold, 2 Barn. & 0.23; Slater v. Lawson, 1 Barn. & A. 396; Smith v. Townsend, 9 Rich. Law, S. C. 44 ; Yan Keuren v. Parmlee, 2 Comst. 523 ; Shoemaker v. Benedict, 1 Kern. 176.) The principle on which it has been held that a part payment takes the debt out of the statute is, that such .part payment admits a greater debt to be due. But the evidence in this case does not show such admission. Probably one-third of the amount due on the note against the estate of Bartleson is evidence that the creditor had agreed to collect the debt ratably of the several parties to the note, and such agreement will be enforced. (2 Tuck. 490; 4 Johns. 22.) Such admission, therefore, is only good against the estate of Bartleson. It cannot be good against Irwin because it did not admit a greater sum due, but embraces the whole amount due from Bartleson, and referred to that alone. (Ang. Lim. §§ 240 & 244.) This is a case of first impression in the courts of this State. The decisions in Craig v. Callaway County, 9 Mo. 836, and same case 12 Mo. 94, were made under a different state of facts, and under the .limitation law of 1835, which did not contain the provisions found in the laws of 1845 and 1855. The whole doctrine now combatted originated in the case of Whitcomb v. Whiting, decided by Ld. Mansfield, in 1781; but the authority of that case has been much shaken by more recent English decisions, and never was thoroughly acquiesced in either there or here. Many of the most respectable American courts have entirely repudiated it, and it is not recognized as an established authority, in its entire length, in any of the courts. The principle there asserted is that there is a community of interest between joint promisors, and therefore one may act as the agent of the others. Without admitting the truth of that proposition, it may be said in answer to it that the death of one of the joint promisors destroys the community of interest. The original promisors are supposed to have had confidence in each other, but it does not follow that this same confidence is to be extended to the representative of a deceased joint promisor. They do not know who may become such representative. There is no privity between them and such representative; and to say that they must have confidence in a person not then known or designated, is an absurdity. Nor can it be maintained on the ground of agency. An agent exercises a delegated authority. He cannot delegate this authority, whilst living, to any other person, rmless expressly empowered to do so; much less can he transmit it to his administrator, to be exercised after his own death. His agency dies with him. Delegatus non potest delegare. (Ang. Lim. § 260, note 3.) Our statute lias made no change as to the effect' of a payment by one of several joint promisors. (R. C. 1855, § 10, p. 161.) Part payment of principal or interest stands on a different footing from the making of promises or acknowledgments. (Wyatt v. Hodson, 8 Bing. 309.) As to the effect of an acknowledgment of one of several drawers of a joint and several promissory note, see the leading case of Whitcomb v. Whitney, 2 Doug. 651.) In Rexter, Adm’r, v. Penniman, 8 Mass. 134, it is said where the parties are living, an admission of a promise or contract as undischarged within six years before action brought, take it out of the statute of limitations. For the same reason such an admission made by or to an executor or administrator after six years, ought to be considered as having the same effect. Part payment of a debt by the administrator of a debtor takes the debt out of the general statute of limitations, although no promise was made to pay the balance. (Foster v. Starkey’s Adm’r, 12 Cush. 325.) One of two makers of a joint and several promissory note having become bankrupt, the payee received a dividend under the commission on account of the note. This will prevent the other maker from availing himself of the statute of limitations in an action against him for the remainder of the note — the dividend having been received from the assignee within six years before action brought. (Jackson v. Fairbank, 2 H. Black, 340 — a case strongly in point.) Hunt v. Bridgham, 2 Pick. 583; Smith v. Ludlow, 6 John. 268; Shelton v. Cook et al., 3 Munf. 197, are strongly in point. The case of Whitcomb, though formerly somewhat questioned, has been firmly established in England, (8 Bing, supra, and cases there cited,) and, as we have seen, has been recognized as law in Massachusetts, New York and Yirginia. There is nothing, either in law or equity, which compels one to plead the statute of limitations, either for himself or for the benefit of another, (3 Bin. 177-8,) and it has been decided by this court that an executor or administrator is not bound to plead the general statute of limitations..