
    Teal v. Ayres, Adm'r.
    The statute of limitations, although suspended while a debtor is absent from the State, commences again to run upon the decease of the debtor while so absent.
    
      Quere? Where a very small period remains to complete the bar. (Note 104.)
    That the mortgage was gone when the debt was barred has not been questioned in this ease, and the point need not be considered.
    Appeal from Walker. This was an action for the recovery of the balance due on a note and for the foreclosure of a mortgage made to secure its payment. The note became due in-December, 1840. The mortgage was executed on the 23d June, 1841, subject to forfeiture if the balance then due on the note were not paid on or before the first of January, 1S42. The petition was filed on the Sth October, 1851, and it alleged that English was a resident of Texas at the dates respectively of the note and mortgage, and that he subsequently, about the last of the year 1844, abandoned the country and never resided therein afterwards, hut departed this life in Louisiana or Tennessee; that David Ayres, in September, 1S50, took out administration, and that the claim, duly authenticated, being presented on the 8th August, 1851, was disallowed.
    
      The defendant pleaded several pleas, amounting, in substance, to the plea that the action was barred by the statute of limitations. It was admitted that English died in Tennessee on the 15th August, 1846. One witness testified that he had a settlement with English at San Augustine on the 13th December, 1844, and that English was then starting to leave the Republic. Another proved that he left in February, 1S44; and his reason for this belief was that lie, the witness, married in April, 1844, and that English had left previous to that event.
    A jmy was waived, and the cause being submitted to the court, was dismissed. A motion for a new trial, on the ground that the decision was contrary to tlie law and evidence, was overruled, aud this was assigned for error; and it was also assigned as error that the court ruled that the statute of limitations commenced running from the death of English on the loth August, 1816, without the limits of the State.
    
      Wiley %• Baker, for appellant.,
    I. Giving the mortgage was a waiver of the statute of limitations up to that time, and would have been so considered even if the bar had been complete. (Vide Merrills v. Swift, 18 Conn. R., 257 ; SU. S. Dig., p. 265, sec. 89.) Hence the statute'commenced to run on Teal’s claim from the law day of the mortgage, 1st January, 1S42, because the mortgage was an acknowledgment of the debt, expressing a willingness to pay it on or before the 1st of January, 1842, fully within the statute (Hart. Dig., art. 2388) and the rule as laid down by this court in the ease of Coles v. Kelsey (2 Tex. R., 541) as to what a promise should be-
    ll.The statute ceased to run when English left the State. (Hart. Dig., art. 2395.) To complete the bar English “must have been within the State, subject to its process, dining the entire period provided for a bar; but such “period of time need not be continuous, but maybe composed of different “periods.” (Smith, Adm’r, v. Bond, 8 Ala. R., 386.) Then the main question to be determined in this case is, whether the death of English in 1846 revived the running of the statute, for such in effect was the decision of the court below.
    III. The case of Tyson i>. Britton, decided at the last term of this court, has no bearing on the principle in this case. In that case the statute had commenced to run before the death of the maker of the note sued on, and this court held, upon principle, “that when the statute of limitations begins to “ run it shall continue, notwithstanding the death of either party.” But the ruling of the court below in this case goes to the extent that the death of a party, when the statute lias ceased to run, revives it again — a position that is thought not to be tenable, either upon principle or authority.
    It is an established principle that the statute does not begin to run until there is in being a party capable of suing and one capable of being sued. The absence of English from the State operated a discontinuance of the running of the statute, aud before it can be put in motion again the rights of the parties must be put in statu quo. The plaintiff must continue capable of suing either in person or through his personal representative, and the defendant must return within the jurisdiction, and thus be capable of being sued. This return can only be in person or by personal representative, and a return to the State to put the statute in motion again must be known to the creditor, and under such circumstances as to enable him, with ordinary diligence, to commence suit against the debtor personally. (Cole v. Jessup, 2 Barb. Sup. Ct. R., 309; 9 U. S. Dig-., p. 323, sec. 89; Hill v. Bellows, 15 Verm. R., 712; 2. Sup. U. S. Dig., p. 363, sec. 334.) The return of defendant in law was when administration was granted on his estate.
    IV. That Teal had the right to force an administration on the estate of English, can have no influence in this case, for he was safely lodged within the exception of the statute, and placed there by English himself; and the allegations and proof showing him there, the law will presume him to remain within it, until the contrary is shown. (Davis v. Sullivan, 2 Eng. R., 449 ; 9 TJ. S. Dig;., p. 322,'see. 71; State Bank v. Sewell, 18 Ala. R„ CIO.) The-contrary in tills case is shown only iu the appointment of an administrator.
    Y. But if it should be insisted that Teal was bound to force an administration on the estate of English after his death, in order to prevent, liis debt from being barred, yet there is no proof tending- to show that he knew of English’s death until administration was granted. By analogy to the character of return to the State, that is necessary to set the statute running- again, as cited in the authorities, supra, the death of English must have been brought home to the knowledge of Teal, and the proof must show the fact. But, having- shown himself within the exception and placed there by English himself, 1 here was no necessity for any further diligence on his part; he might safely repose within it until the return of English either in person or by personal representative.
    VI. But lastly, the language of the statute is too plain to admit of doubt. It is, that the action may be maintained “after his or their return to the Republic.” These are piain words, used in an ordinary way, and must be understood to impart their ordinary signification, and hence required no judicial construction or interpretation. Dying out of the State is certainly not equivalent to the expression “ after his or their return to the State.” The expressions are certainly not identical. These words of the statute claimed the attention of this court in the ease of Suoddy v. Cage,'in which the court aptly remarks, that “were this question res integra, it would seem very improbable “that any interpretation could depart so widely from the usual'signification “of the language as either to disregard totally the force and o licet of the “ word return, or to make returning to a place and coming to it for the first “time equivalent expressions.”
    
      Yoakum 8? Campbell, for appellee.
    English’s death did not stop the statute of limitations. There was at that time no such exception. Nearly ten years had elapsed from the maturity of the mortgage, and nearly eleven from the maturity of the note.
    Even if English’s change of residence should be construed to come under the exception of article 2805, Hart. Dig. the statute must again have commenced at his death, for his return was rendered impossible.
    So, under every aspect of the case, the claim seems to have been barred by the. statute of limitations. Three years' of the mortgage had run before E uglish had ceased to reside in the State; the note was perhaps already barred. Five full years more had elapsed from the death of English to the presentation of the claim.
   Hemphiul, Cu. J.

The last assignment presents the most important question raised by the pleadings and facts in the cause. For if the statute recommenced running after the death of English, the action was, beyond question, barred. If not, the bar would not be complete, as the acknowledgment by the mortgage of the justice of the claim would save the debt from the operation of the statute prior to January, 1842. Had English remained in the State, and had the bar not been complete before his death, the limitation-(as tlie law then existed), would, notwithstanding his death, have continued to. run, on the general principle that whore the statute has once commenced running it will not be stopped by any supervening disability, unless expressly authorized bylaw. But in this case the statute was not running at the death of the debtor. It had been suspended by his absence, and the question is, whether at the death it was again put in motion or remained suspended until the grant of administration; or in other words, is it the death of the debtor or the grant of administration which is equivalent to his return?

In adopting the 22d section of the statute of limitations, (article, 2305,). which declares that the time of a person’s absence shall not be' accounted as a part of the time limited bv the act, but that suit maybe commenced after liis return to the Kcpublic, the Legislature intended that the domestic creditor should not be injuriously affected by the absence of his_ debtor, and consequent exemption from process and judgment, in a suit commenced by personal service or notice.

It is very true that this provision does not afford the ample protection to the creditor derived from it in other countries, in which the debtor is liable to arrest and compelled to give bail to secure the payment of the debt. Imprisonment for debt is, under our law, abolished ; the arrest of a debtor is unknown. It is also true that the creditor may sue his absent debtor by publication, and under certain circumstances may attach bis property and have judgment. But although these remedies may be enforced by the creditor, and the return of the debtor is not important as it would be were ho liable to arrest, yet the Legislature has deemed his absence of such detriment to the creditor as to-authorize the suspension of the statute during its continuance. But the injury caused by the absence of the debtor, be its' extent greater or less, ceases on his return. The creditor and the debtor are then restored to the situations-occupied by them antecedent to the absence. The creditor lias his process, and-the debtor can invoke the aid of the statute against antiquated claims. By the-default of the debtor the relative rights of the debtor and creditor have been deranged; by his return they are restored to harmony.

But in the case before us the return of the debtor had, by an act of divine power, become impossible. All capacity for action on the part of the debtor had ceased. The creditor was forever precluded from the possibility of personal suit against him, not only here, but elsewhere, and this not by any default of the debior, but. by an act of Divine Providence, to which all must bow with submission. The recourse of the creditor for his debt was by this event altogether changed from a suit against the person to one against the property, and'it became perfectly immaterial to the creditor whether the debtor had died wiiliiu or without the limits of the State. His estate, in either case, was all that was left of him — all that could ho subjected to the discharge of his liabilities — and it was fixed to the spot in which it was left by the debtor, whether he were present or absent at, the time of his death. The fact of his dying abroad did not impede the grant of administration or the facility of subjecting the property to the payment of claims.. Ilis estate stood precisely on the footing that it would have stood had he died within the limits of the country. Tlie fact of death, let that happen where it may, being ascertained, the grant of administration, when applied for, and the subsequent proceedings necessarily follow.

Is there any reason, then, why the statute should not run in favor of the succession of an absentee in the same, way and to the same extent that it does-in fa.vor of (lie esiafe of a present deceased debtor? The vigilant creditor can, on either and with the like facility, force administration; and if lie do not, and his claim as against one he barred, there is no sound reason why it should not he precluded as against the other. The recourse against one is identical with that, against, the other, and the creditor should he held to the same degree of vigilance in either ease. .The death of English, then, placing his estate here upon the fooling that it would have occupied had he died in Texas, the statute, upon his death,'recommenced running, and the bar was complete before the institution of this suit.

It was contended that the fact of the death should have boon brought home to the knowledge, of Teal before the statute could he again sot in motion. This view of the law we apprehend to be, unsound. Four years elapsed from the death to the grant of administration, and if any allowance wore permitted— and I am of opinion that it might be in eases where the, statute would complete the bar. before the death of a debtor dying abroad could be ascertained — it would not he under circumstances like those of the present case. Ulore than one year, according to the testimony of one, and nearly two, according-to the testimony of another Witness, must have elapsed after the dead), before-the completion of the bar, and the presumption is, that before the expiration of even the shortest period the death must have been known.

Note 104. — Ayres ¶. Henderson, ante, 539.

That the remedy on the mortgage was gone when the debt was barred has not been questioned in this case, and the point need not be considered. If this debt be still in fact unpaid, notwithstanding the great lapse of time, its loss is ■clearly imputable to the laches of the plaintiff. lie might have secured himself by enforcing administration; and notwithstanding the absence of the debtor, lie might have foreclosed the mortgage. The law provides remedies for the vigilant, and if the negligent fail to employ them, they cannot complain.

Judgment affirmed.  