
    
      Jesse Deloach vs. R. R. Turner.
    
    The incidental acknowledgment, in a deed of conveyance of land, of tie receipt of tie consideration money, may be explained by parol evidence; Curry vs. Lyles, 2 Hill, 404. Assumpsit for tie price of land, negro lire, and price of negro : defonee — tie statute of limitations, and a discount for money paid, at various times, for tie use of plaintiff, articles purchased for him, &c.: — Held, that there were not such mutual running accounts between the parties, as brought the case within the exception to the statute of limitations, relative to merchants’ accounts; and that the items of discount could not bo regarded as payments pro tanto, so as to arrest the statute.
    Where a debt is already barred by the statute of limitations, it is not necessary that there should be an express promise to pay it, — a promise, sufficient to sustain an action, will be implied from an unqualified admission of a subsisting legal liability, in reference to the debt barred, unaccompanied by any indication of an unwillingness to pay.
    
      Before Evans, J., at Beaufort, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of assumpsit — the plaintiff’s demand consisted of three items.
    
      
      “ 1. The price of a tract of land sold to the defendant: The consideration expressed in the deed.was 800 dollars ‘the receipt whereof I do hereby acknowledge.’ The deed was da^ed the 1st July, 1846, but from the evidence it was probably not signed and delivered until the 6th of October. The witness said that the renunciation of dower and the probate were on- the same day of the execution of the deed, and these bore date the 6th of October.
    “ 2. The hire of a negro named Isaac, for several years anterior to the bringing of the action.
    “ 3. The price of Isaac sold to the defendant, $400.
    “ The defendant pleaded a discount and the statute of limitations. The discount consisted of various amounts, some for money paid for taxes, store accounts and doctor’s bills, and some for articles purchased for defendant.
    “ The writ was issued the 21st of October, 1850.
    “ In relation to the price of the land, it was proved that no money was in fact paid at the time. I was strongly impressed with the belief that it never had been paid. The plaintiff was an ignorant and feeble old man : the - defendant was a man of business habits and capacity. He married the plaintiff’s daughter, but she had died before'these transactions: he possessed in a large degree the old man’s confidence.
    “ The first question was, whether the acknowledgment in the deed, that the price of the land had been paid, could be disproved by parol. It is a question of difficulty. I had doubts then, and still have, and so stated to the jury; but I did not leave it to them to .decide the law : I told them that in my judgment, the acknowledgment was only prima facie evidence of the fact, and if they were satisfied that the money had never been paid, they should find this item for the plaintiff, unless it was barred by the statute of limitations. The distinction, upon which I decided, was this, that the rule, that a man was estopped to deny his deed extended only to such things as were essential parts of a deed, and as a deed would be good without setting out any consideration, the insertion of it was only an acknowledginent in writing like a receipt, which was open to parol evidence.
    
      “ Although one of the items in the bill of particulars, was the price of the negro, yet the plaintiff denied he had ever sold him, and offered evidence to that effect: the defendant insisted on the sale, and admitted his liability for the price, 400 dollars. The defendant’s discount of 365 dollars was admitted by the plaintiff, and it was conceded that the plaintiff was entitled to receive 35 dollars, the difference between the two. As to the negro hire, the proof was that the negro was an habitual runaway, and that the defendant had taken him some years before 1846, to break him from running away. There was no evidence of any agreement to pay anything, and the proof was that he was so habituated to living in the woods, that his hire was not of much value. The plaintiff contended that if any sale had been made, it was recent, and he was entitled to hire to that time.
    “ The defendant contended he had purchased the negro before January, 1847', and that all hire .(if he could be justly charged with any,) was barred, which accrued before that time.
    
      “ The case as to the price of land and negro hire, depended on the statute of limitations, and the time at which the claim for hire ceased by the purchase of the negro. The evidence on these points was as follows, viz-:
    “ Jacob B. Grinet. — In 1848, he heard Turner say, he took the negro to keep him from running away, but he was so habituated to it that no one could break him : he wished to ship him but Deloach would not agree : Deloach had agreed to take a negro woman, and as soon as he could buy, one he intended to ship him.
    . “ Rev. Mr. Nicks. — In September or October, 1850, he went to see Turner at Deloach’s request, to make a settlement: told Turner his business, and that he was authorized to settle on certain conditions: these were, that Turner should pay $>50 a year hire for Isaac, for four years preceding 1850, and for that year 100 dollars: Turner said he had never hired Isaac, but had bought him for $400, and refused to come to any settlement on these terms : Turner told him to go back and tell Deloach, that if he would admit the sale of the negro, he would pay every cent he owed in ten days. Nicks then said the account will stand thus: land $>800, negro $400, making $1200, from which is to be deducted your account. Turner agreed to this, and-sent him back with a message to that effect to Deloach. Deloach refused to settle in this way, and denied he had ever sold the negro.
    “ John A. Deloach, was living with the plaintiff in January, 1847. Heard him say he had sold Isaac to Turner, for $400. Isaac was then in Turner’s possession.
    
      “ William Deloach. — Isaac went into Turner’s possession in 1843 or 4, and has been called Turner’s ever since.
    “ As to the negro hire, I charged the jury that there was no promise to pay, so as to prevent the bar of the statute, but the plaintiff was entitled to recover for any that accrued within four years of the commencement of the action, which would depend on the time when the sale was made.
    
      “ As to the price of the land, I charged the jury, that I thought the evidence of Nicks, proved a clear admission, that the price of the land was due — and if this admission was made before the bar of the statute was complete, which would bé on the 5th of October, 1850,1 thought the plaintiff was entitled to recover. But our decisions required that the promise to pay a debt already barred, should be clear and unequivocal. In this case it was conditional, and not accepted by the other party.
    “ It was also contended for the plaintiff, on the authority of Fitch vs. Hilliard, 1 Hill, 192, that the discount showed mutual accounts subsisting between the parties, and in such case the statute did not begin to run, until after the date of the last item.
    “ The discount commenced in 1847, and extended through 1849. I charged the jury, that payments were regarded as admissions of a subsisting debt, and I thought the discount in this case might be regarded as payments. The charges were mostly for money paid. If there was but one debt, I would regard the payments as a clear admission, which would prevent the bar of the statute. Here there were several debts, one of which was 
      admitted, and the rest denied. I could not therefore say, that the payments, which might have been on the price of the negro, could be construed into an admission that he owed for the land and negro hire also : I therefore left it to the jury to decide. The jury found a verdict for the plaintiff, for the difference between the price of the negro, and the defendant’s discount, thereby rejecting the price of the land and the negro hire. The case was a complex one, and I took unusual pains to collate the evidence and to explain the legal principles upon which the decision depended. The foreman and several others were intelligent gentlemen, and I have no reason to suppose they did not comprehend very fully the facts, and the law which applied to the case. My charge was .as favorable to the plaintiff as it could well be, for I was strongly impressed with the belief, that the price of the land had never been paid, and I gave the plaintiff (notwithstanding his exceptions to my charge,) the full benefit of every legal principle which could avoid the bar of the statute.”
    The plaintiff appealed and now moved for a new trial, on the grounds:
    1. Because his Honor should have charged the jury clearly, that it was competent for the plaintiff to show by parol that the consideration money stated in the deed of the land, as paid in hand, was not paid, and not, that it was a question of doubt and difficulty.
    2. Because his Honor erred in charging the jury that the claim for $800, the price of the land, was barred by the statute of limitations on the 6th day of October, 1850.
    3. Because his Honor charged that the discount pleaded was to be set off against the price of the negro, as the only subsisting debt, and not against the price of the negro and the price of the land, as constituting one indebtedness by the defendant.
    4. Because although his Honor charged the jury that the plaintiff was entitled to the hire of the negro Isaac, from January, 1846, to the time of the sale of Isaac to the defendant, yet the jury refused to find the same.
    
      W. F. Hutson, for appellant.
    
      I. The Circuit Judge charged, that it was a question of “doubt and difficulty” whether -parol evidence was admissible to prove that the consideration money, named in a deed, had not been paid: whereas he should have charged that it was clearly law that it was ; Curry vs. Lyles, 2 Hill, 404; 3 T. R. 474; 7 Bro. P. C. 70; 1 McC. 514; 14 Johns. R. 210. This confused the jury, and induced them to think they might cast the price of the land out of consideration in making up their verdict — the common opinion being that aman was'estopped by his deed in all particulars.
    II. His Honor advised the jury to set the discount off against the price of the negro, because the parties were agreed as to this. But it was only on the trial they agreed : and the evidence was, they disputed whether there was a sale or wrongful possession ; and his Honor should have charged, the plaintiff could waive the tort and bring assumpsit, and it should have been left to them to consider whether the discount was applicable to the price of the negro or the land.
    III. The statute of limitations did not bar the price of the land. " ■
    1. Because there was, in September or October, an unconditional admission of the debt.
    His Honor erred, in charging as to state of facts made by the pleadings: whereas he should have charged in reference to the facts, as the testimony showed they existed. When we charge that the admission was made, then defendant admitted the debt for the land and denied that for the negro. On trial he had shifted his position, and admitted the debt for the negro, while he set up the statute against that for the land.
    We did not contend there was an express promise, but an unconditional admission, such as raised an implied promise under the cases, from Young vs. Monpoey, 2 Bail. 280, to Brown vs. Joyner, 1 Rich. 210. See 2 Hill, 326; 1 McMul. 197, arid 2 lb. 507. It is strictly a question for this Court — see foregoing cases, especially Horlbeck vs. Hunt, 1 McMul. 197.
    2. The condition, says Young vs. Monpoey, and Horlbeck 
      vs. Hu?it, “ must be indicative of an intention not to pay.” Was it so here as to the land ?
    3. But plaintiff accepted this condition as to the negro, by bringing this suit.
    4. It is, besides, that the admission was made before 5th October, for Nicks says, in September or October; and as defendant admitted a then existing debt, it is most probable it was before the statute had run out, to wit, in September, or in October before the 5th.
    5. But there were mutual running accounts.
    
    His Honor stated the law correctly, according to Fitch vs. Hilleaux, 1 Hill, 192, and Cunningham vs. Fx'or of Green, Dudley, 352. He erred, as before, in applying it to the state of facts made by the pleadings, and not to those made by the evidence. The latter showed that these accounts subsisted together from 1847 to 1850 — in all that time it was admitted by defendant he owed for the land ; but Nicks proves that in September or October, 1850, the negro was in dispute — hence his Honor should have charged that the items of the discount were payments on the land. The doubt whether the negro was sold or hired, strengthens this view.
    6. According to John A. Deloach, defendant’s strongest witness, the two debts commenced about the same time, and, therefore, they should be considered one debt, and the discount against both.
    
      R. DeTreville, contra.
   The opinion of the Court was delivered by

Waudlaw, J.

The case of Curry vs. Lyles, (2 Hill, 404,) and the authorities there cited, sustain the admissibility of parol testimony to explain the incidental acquittance of the consideration money, which is contained in the plaintiff’s deed conveying land to the defendant.

This Court does not perceive, that there were such mutual running accounts between the parties, as either came within the exception to the statute of limitations, relative to merchants’ accounts, or could have arrested the statute by way of paymentsj pro tanto, and admissions thence inferred. On this head, the ruling of the Circuit Judge seems, according to the information which this Court possesses, to have been more favorable to the plaintiff than it should have been : but on another head it was less so.

From the alternative words used by Nicks, the plaintiff’s witness, it may well be assumed, that the time of the transaction spoken of by him, was such as is most unfavorable to the plaintiff, that, is, after the demand for the land was barred by the statute. The question is, whether the defendant then made an acknowledgement, which amounted to a new and valid contract. If the acknowledgement was conditional, clearly it could not suffice without allegation and proof that the condition had been performed. For some of the Court it has been hard to overcome the impression, that the acknowledgement made by the defendant, was meant to depend upon the plaintiff’s acceptance of the terms contained in the message sent by Nicks.

If the facts were precisely ascertained, the Court would resolve the question as to their sufficiency to withstand the statute r for always, in. the determination of facts, in cases where evidence is offered of admissions to re-establish a demand barred by the statute, juries must be sternly required to regard the instructions given to them upon the law (Horlbeclc vs. Hunt, 1 McM. 197), But exactly what words were used by the defendant, or what meaning should, under the circumstances, be given to the words he used, does not appear. A majority of the Court is inclined to infer from the report, that the only dispute was as to the negro, and that the admission as to the land was-absolute, tantamount to saying, “ I owe $800 for the land, and if he will admit the sale of the negro, I will owe $400 more, but my indebtedness is subject to discount for my demands.” The verdict would be taken as conclusive on the point in doubt, if it was not that the Judge, without actually saying so, seems to have held out, that an express promise to pay is always necessary, when a debt has been already barred. We are well satisfied with the rule laid down in Young vs. Monpoey, (2 Bail. 278,) and enforced in so many cases that have followed it. After the bar has been complete, there must be such a promise as will sustain an action founded on that promise, the old debt being merely a consideration for the new promise. But the promise may be either express or implied: in either form it must be unconditional, and established by evidence unambiguous and full. Without an express promise, an unqualified admission of a subsisting legal liability, in reference to a definite debt, unac-. companied by any indication of an unwillingness to pay, is proof of indebtedness, which will raise a legal implication of a promise to pay that debt. If the words used by the defendant amounted. to such an admission as to the price of the land, they were sufficient to take that demand out of the statute.

That precise information on this point may be had under full instructions, a new trial is ordered.

O’Neall, Frost, Withers, Whitner and Glover, JJ., concurred.

Motion granted.  