
    Benjamin Bowers, Executor of Benjamin Bowers, Sen. deceased, vs. Andrew R. Johnson.
    B. having bought a tract of land of J., assigned in part payment of the purchase-money a constable’s receipt for certain notes for collection, and indorsed on the receipt that he would' be bound for the same upon the failure of the makers of the notes ; J. subsequently sued B. to recover what was yet due on one of the notes embraced in the receipt; on. the trial the maker of this note testified that to the best of his recollection he had paid the note to the constable; while the constable testified that he did not recollect that the maker had paid it to him ; there was proof that the maker of the note was insolvent when the constable’s receipt was assigned to J., and proof also of the constable’s insolvency; the jury found for J. for the full amount due on this note; the court below refused to grant a new trial; held, by this court, that, although the testimony was not clear, there was not such a preponderance against the verdict as would authorize the court to-set it aside.
    B. bought a tract of land of J., and took the latter’s bond to make title when the purchase-money was paid; in May, 1838, B. assigned certain notes to J. on account of the purchase-money, and agreed that he would be bound for the same upon the failure of the makers ; in November, 1840, R. at the request of B., applied to J. for a deed to the land ; it was refused, because the purchase-money was not paid; R. told J., if he failed to collect the notes, B. was good, and would certainly pay it to him ; upon which J. made the deed, and took up his title bond ; in September, 1845, J. sued B. for the residue of the notes unpaid; B. relied on the statute of limitations of six years; held, that R.’s promise to J. was clearly a waiver of the statute, and that, even though R. had no authority to make the promise, yet, if B. retained the deed and the land thus acquired, the promise would be obligatory upon him.
    No one can hold an interest obtained through the fraud of another, any more than if the fraud were committed by himself; by receiving and retaining a benefit procured for him by the representations of another, he is bound by those representations.
    
      In error from the circuit court of Tippah county; H011. Hugh R. Miller, judge.
    Andrew R. Johnson, on the 20th of September, 1845, sued Benjamin Bowers, administrator of Benjamin Bowers, sen. in an action of assumpsit; the first count was on this receipt: “ Received of Benjamin Bowers one note executed by N. Gordon to Mary Downing, for one hundred and sixty-five dollars, due December 25th, 1837; also one note executed by James D. Cage and N. R. Sledge, for one hundred and eighty dollars, due January 1, 1838, which I promise to collect or return. April 19th, 1838. E. B. Hill, Const.” On the back of which was indorsed, “For value received, I assign the within to A. R. Johnson, and will be bound for the same upon the failure of the makers of the notes. May 15th, 1838. B. Bowers, sen.” The second count was for the balance due upon a tract of land. The issue was non assumpsit. On the trial Wiley J. Riddle proved that the receipt was given in payment for a tract of land sold by Johnson to Bowers; that as agent for Bowers, and at his request, he went to Johnson’s house with the latter’s title bond, to procure the deed from him to the land for Bowers; on stating his business to Johnson, Mrs. Johnson, his wife, objected to making the deed until all the purchase-money was paid; whether Johnson objected, he did not recollect. In order to remove these objections, and succeed in getting the deed, he stated to them both, that Mr. Bowers was bound for the payment of the money; if they failed to collect it before the receipt, Bowers would certainly pay it, as they knew he was very good for it. This seemed to satisfy them, and they then signed the deed. He had no authority from Bowers to make the promise to pay the money; his authority extended only to the getting of the deed. He did not tell Johnson anything of the extent of his authority.
    The deed from Johnson to Bowers was then read; it bore date November 20, 1840.
    Austin Miller proved that the receipt of Hill was placed in his hands by Johnson for collection, and he held it for several years without being able to collect anything, and returned it to Johnson. That Gordon was solvent when the receipt was transferred to Johnson, but Cage was then, and was still, insolvent. Hill, the constable, was also insolvent.
    The plaintiff’s evidence was here closed. Upon which the defendant notified the plaintiff that he should rely on the statute of limitations. The court charged the jury that the statute of limitations could not apply to the case, because no time was shown from which the statute could commence running. This charge was excepted to. The defendant then read the deposition of E. B. Hill, the constable, who proved that he collected the Gordon note and paid over the money; but did not recollect ■having received anything on the Cage note.
    The deposition of James D. Cage stated that, to the best of his recollection, he had paid the debt; he paid it to E. B. Hill. The plaintiff admitted he had received two hundred and ten dollars on the receipt.
    The jury found for the plaintiff a verdict for $244.66. The defendant moved for a new trial, which was refused; he therefore embodied the evidence in a bill of exceptions, and prosecuted this writ of error.
    
      O. Davis, for plaintiff in error.
    1. The claim was barred by the statute of limitations. IÁttle v. Blunt, 9 Pick. 488; Larason and Happoclc v. Lambert, 7 Hals. 247; Kingsbury v. Butler, 4 Verm. 458 ; 2 Phil. Ev. 136, n. 6; Chit, on Bills, 833; Crofoot v. Moore, 4 Verm. 204.
    2. The verdict was contrary to the evidence; Cage swore that he had paid the debt; there was no proof to the contrary. By a calculation it will be found the sum paid by the constable exceeded the amount of Gordon’s debt, and must therefore have constituted a part of Cage’s debt.
    
      N. Y Price, on same side,
    relied on the same points, and cited, on the question of the statute of limitations, Kinney's Executor v. McClure, 1 Rand. 285.
    
      
      T. J. Word, for appellee,
    insisted,
    1. That the statute of limitations did not begin to run in this case until the claims had been prosecuted to insolvency. States v. Edmondson, 9 Leigh, 473.
    2. Riddle’s statements took the case out of the statute; the Subsequent action of Bowers in receiving the deed, confirmed Riddle’s statements on which it was procured, and was a ratification of them.
    3. The questions of fact were submitted to the jury; their decision will not be disturbed. Reed v. Wiley, 5 S. & M. 394; Barrenger v. Nesbitt, I S. & M. 22; Jenkins v. Whitehead, lb. 157.
   Mr. Justice Clayton

delivered the opinion of the court.

Bowers, in his lifetime, was indebted to Johnson for the purchase of a tract of land, and transferred to him the receipt of a constable for certain claims, which he was to collect, with a special indorsement, that “ he, Bowers, would be bound for the same, upon the failure of the makers of the notes.” This was an adtion of assumpsit brought against him to recover what was due.

One ground of defence was, that the notes had been paid to the constable, and that Bowers was not liable for his default. There was evidence of the insolvency of the constable, and of Cage the maker of one of the notes. One question was, whether that note had been paid or not. There was proof of the insolvency of Cage, at the time of the transfer of the receipt. The constable swore that he did not recollect that Cage had ever paid it, whilst Cage swore that, to the best of his recollection, he had paid it to the constable. The jury found for the plaintiff the sum of $244.66, which appears to be the amount of the note of Cage, with interest. There was a motion for a new trial, which was overruled.

No charge was asked, or given, except as to the statute of limitations. The jury decided the questions of fact, and although the testimony is not plear, yet there is not such a preponderance against the verdict as would authorize us to set it aside.

The judge instructed the jury, that the statute of limitations presented no obstacle to a recovery. There was no formal plea of the statute, but notice during the trial, that it would be relied on. The transfer was in May, 1838; and this suit was not commenced till September, 1845. To take the case out of the statute, a subsequent promise was relied on. It was in proof that one Riddle, at the request of Bowers, went in November, ] 840, to procure a deed for the land. The wife of Johnson, and perhaps also Johnson, refused to make the deed, because the purchase-money had not been paid. Riddle told them, if they failed to collect the money upon the receipt, Bowers was good, and would certainly pay it to them. Thereupon they made no further objection, but executed the deed and took up their title-bond. This was clearly a waiver of the statute. But for this promise, Johnson would probably have retained the title in his own hands, as a means of coercing payment.

But it is said that Riddle was not authorized to make this promise. Even if he were not, it is obligatory upon Bowers, if he retains the deed and the land thus acquired. No one can hold an interest obtained through the- fraud of another, any more than if the fraud were committed by himself. By receiving and retaining the benefit, he incurs the obligation. 3 Ire-dell’s Eq. R. 219.

The judgment is affirmed.  