
    Thomas Hughes, Jun., v. Thomas Hughes, Sen.
    Defendant’s admission that “he was willing to settle, and to pay anything that might be due on a fair settlement; but he thought he had paid plaintiff enough, ’ ’ did not prevent the bar of the statute of limitations.
    
    The purchase of one’s land at Sheriff’s sale, with an agreement that he shall remain in possession and refund the money at an indefinite period, does not create a continuing trust to bar the statute of limitations.
    Before O’Neall, J., at Union, Fall Term, 1839.
    Assumpsit,* commenced in 1838. Plea, — the general issue and the statute of limitations.
    
      At the instance of defendant, the plaintiff, in 1826, purchased, at sheriff’s sale, the defendant’s land; hut did not take titles. . He agreed to satisfy, to the amount of his bid, (one thousand five hundred dollars,) the judgment debts of the defendant, who was to remain in possession of the land, and to refund him the money. Between that time and 1828, the plaintiff laid out, in pursuance of this agreement, one thousand three hundred and seventy-three dollars and six cents; -and, in the same interval, defendant refunded four hundred and seventy-four dollars and ninety-three cents. In 1829, defendant, at first, refused to give plaintiff one hundred dollars, but afterwards let him have it. On February 4, 1833, defendant’s son paid plaintiff one hundred dollars, at which defendant was much displeased when he heard of it, saying that he owed plaintiff nothing. In March, 1838, (before this action was brought,) being served with a rule to show cause why the sheriff’s title should not be made, defendant stated that the plaintiff had bid off the land to him as a friend; that he was willing to settle and to pay anything that might be due on a fair settlement; but he thought that he had paid the plaintiff enough. He repeated the same expressions, shortly after, to the plaintiff’s attorney. The jury, being instructed by the Court that the plaintiff was barred by the statute, found for the defendant, and the plaintiff moved for a new trial,—
    Because the defendant’s promises took the case out of the statute, and—
    Because this was such a case between trustee and cestui-que trust, as the statute could not run against in equity ; and the same principle should operate here.
    
      
       See 1 McM. 201.
    
   Curia, per O’Neall, J.

The rule laid, down in Young v. Monpoey, (2 Bailey, 278,) has been uniformly followed, that, after the lapse of time within which a debt would have been barred by the statue, to- prevent the bar “ there must be either an express promise to pay, or an admission of a subsisting debt, which the party is willing and liable to pay.” It is recognized and enforced in Reigne v. Desportes, (Dud. Rep., 118,) which declared .the old debt to be the consideration, and the new promise the cause of action. Therefore, if the new promise could not entitle the plaintiff to recover, it is clear that the bar of the statute applies. In the case before us, the plaintiff’s cause of action began, at the latest, from his last payment in 1829, for the defendant’s benefit, and in 1833, the time of the statute had run out. The money previously paid by the plaintiff, and up to that time constituting his cause of action,' then ceased to be such, and after that, his right of action depended on the defendant’s admission. In March, 1838, he said “the plaintiff had bid off the land for him as a friend; he was willing to settle and pay any thing which was due, on a fair settlement; but he thought he had paid the plaintiff enough.” To Mr. Thompson, just before the commencement of this suit, he said “ he thought he had paid the plaintiff enough; he, however, was willing to settle, and if there was any balance, he would pay it.” These two acknowledgments are in substance this— “ I think I have paid the plaintiff; I will however settle, and if there is any thing due, I will pay it.” Upon this, as the cause of action, can there be a doubt that the plaintiff could not recover % Certainly not, unless he could show a settlement and a balance against the defendant.

In Allcock v. Evans, (2 Hill, 326,) defendant’s saying his partner ought to have paid the note, and “Allcock ought to be paid,” was held neither to be an express promise to pay,, nor an admission of a subsisting debt, which he was willing and liable to pay; and his proposition that he would “pay no interest, but would pay the principal by giving his note, payable in three, six and nine months, with interest from the date,” not having been confirmed by acceptance, was considered not to be a promise to bar the statute. In Bonnetheau ads. Johnson, (Riley’s L. C. 1,) defendant’s plea of the statute was, it is true, defeated by these words: “ I have also an account against Dr. Johnson, which ! will discount against his when I get mine made out, and will settle with you.” These expressions do somewhat resemble -those of the present case; but Johnson, J., observed there, that “ the proposition of the defendant to discount his own account against the demand, is in itself a distinct concession of his liability to pay it; and the declaration that he would settle with the plaintiff’s agent, when his account was made out, is in common parlance substituted for a direct promise to pay, and, as used here, would scarcely admit of any other construction.” In the case before the Court, the same word “ settle” was used, but certainly not in a sense synonymous with “ pay.”

Thompson, for the motion;

Herndon, contra.

On the second ground of appeal, the Court said “ this is not a case of technical’ continuing trust, against which the statute of limitations will not run. If it was, the plaintiff would have no business here. Equity, not law, would be his remedy. If there is a trust in the matter, (and I do not think there is,) it would be a constructive trust, against which the statute runs both at law and in equity. But this is a mere legal demand. The plaintiff has paid money for the defendant at his request.”

Motion dismissed; Evans, Earle and Butler, JJ., concurring. 
      
       3 Hill, 15.
     