
    Case 23 — PETITION EQUITY —
    December 21.
    Hopkins, &c. v. Stout.
    APPEAL PROM SHELBY CIRCUIT COURT.
    1. In September, 1856, Stout sued the administrator of Hopkins on a promissory note dated the 11th and jiayable the 12th day of May, 1849, indorsed, “Received on the within note twenty-three dollars, August 30, 1852. James Stout.”
    At the date of the credit Hopkins was living. His administrator neither controverted the partial payment indorsed nor alleged any other jiayment, but resisted judgment upon a plea of usury. Judgment was rendered against the administrator in 1860 for the debt and interest, less the twenty-three dollars credited as above. There being no personal assets, the judgment was never collected. In August, 1866, Stout brought this suit against the heirs of Hopkins for the debt aforesaid. The statute of limitations was the only defense pleaded by the heirs. The circuit court rendered judgment against them for the debt. On the appeal of the heirs thfit judgment is affirmed, Judge Hardin dissenting. Reid,
    
    2. An acknowledgment of or promise to p>ay a debt before it is barred by time does not absorb or supplant the still subsisting cause of action, but operates to prolong the statutory limitation by cutting off the antecedent time.
    3. After an action on a contract has been barred by limitation, a moral obligation may be a binding consideration for a new promise and different cause of action, and then the suit must bo brought on the new promise.
    4. A partial payment on a note made before a bar by limitation is prima fade an acknowledgment that the residue is unpaid, and of a continuing liability therefor, and suspends the operation of the statute between the accrual of the cause of action on the note and the date of that payment.
    5. An indorsement of a partial payment upon a note shown to have been made by the obligee in the life-time of the obligor, and before the cause of action was barred by limitation, is competent evidence for the obligee that at its date the amount indorsed was paid, and that the balance remained unpaid.
    6. A judgment against the administrator is prima fade evidence against the heirs in a proceeding against them to subject land descended to them to the payment of the debt for which the judgment was recovered against the administrator of their ancestor.
    
      Bullock & Davis,........For Appellants,
    CITED
    Hardin, 801. 1 Bibb, Harrison, v. Handley.
    *5 Littell, 281, Stanley v. Earl.
    ¿4 B. Mon. 87, Hord v. Lee.
    16 B. Mon. 415, Price v. Ridgeway.
    3 Ad. and El. W. S. 514, Balesman v. Rudder.
    8 Mod. 278. 2 Raym. 1370.
    2 Ves. 43. 3 Bro. Rep. P. C. 593.
    1 Crompt. & Mees. 421, Oases in Pari. 1728-31.
    Chitty on Contracts, 829, 830.
    11 C. M. & R. 252, Tippett v. Hearne.
    6 Eng. Law and Equity, 520 (S. C. Jur. 1044).
    Angelí on Lim. (May’s new Am. ed. 1861) note 248.
    Parson’s Mercantile Law, 239.
    Byles on Bills (5th Am. ed. Sharswood’s) 240, and notes.
    22 Georgia, 343. 5 S. & M. 571.
    12 S. & M. 663, Smith v. Westmoreland.
    24 Miss. 389, Anderson v. Robertson.
    32 111. 383, Long v. Gear.
    »
    
      lé Gilman, 108, Connelly v. Pierson.
    4 Pick. 110, Whitney v. Bigelow.
    4 Dane Ab. 406, Burnham v. Burnham.
    2 Massachusetts Digest, p. 233.
    7 Yerger, 313, Stein v. Mathews.'
    C. M. Harwood,.........For Appellee,
    CITED
    2 Strange, 826, Searle v. Lord Barrington.
    12 Maine, 472, Coffin v. Buckman.
    1 Watts & Sergeant, 241, Adams v. Leitzinger.
    5 D. & S. 331, Cremer’s Estate.
    2 McCord (S. C.) 408, Gibson v. Peebles.
    9 Georgia, 408, Smith v. Simmons.
    4 Eng. (Ark. Rep.) 460, Alston v. State Bank.
    1 Richardson (S. C.) 391, Conklin v. Pearson.
    21 Maine, 176, The Trustees, &c. v. Osgood.
    17 Johnson, 181, Roseboom v. Billington.
    1 Greenleaf on Evidence, 7th ed., sec. 121.
    2 Greenleaf on Evidence, secs. 444, 436.
    Angelí on Limitations, secs. 241, 242.
    16 B. Mon. 415, Ridgley v. Price.
    Byles on Bills, side page 271.
    Smith’s Leading Cases (H. & W.’s notes) pp. 718, 728.
   JUDGE ROBERTSON

delivered the opinion oe the court

(JUDGE HARDIN dissenting).

In September, 1856, tbe appellee, James Stout, sued tbe administrator of John Hopkins on a promissory note executed by Hopkins to Stout on the 11th and payable on the 12th of May, 1849, and on which the following indorsement appeared:

“ $23. Received on the within note twenty-three dollars, August 30, 1852. James Stout.”

At the date of that credit Hopkins, the obligor, was living. His administrator defended the action, and not controverting a partial payment as indorsed, nor alleging any other payment, resisted a judgment on a plea of usury. That defense not being sustained, judgment was rendered in 1860 against the administrator for the amount of the note and interest, subject to credit for the $23 as indorsed; but for want of personal assets no portion of the judgment was ever collected.

The consideration of the note being a sale and conveyance of land which descended to the heirs of Hopkins, the appellee, in August, 1866, brought this suit in equity for obtaining a judgment against them also, and for enforcing a lien claimed on the land which they had alienated. Their answer, not admitting the indebtedness of their father, pleaded the statute of limitations in bar of the action against them. The circuit court rendered personal judgment against' them; and now the question involved in this appeal is whether this suit was barred by limitation.

The judgment against the administrator neither concluded the heirs nor authorized execution against them. The cause of action against them was coeval with that against the obligor, and consequently the time which would have barred an action against him, if surviving, will bar this suit. About seventeen years having elapsed since the cause of action first accrued, 'therefore fifteen years being the limitation, this action is barred unless the indorsement of credit on the note in some way can save the case from the bar.

The statutory bar is peremptory, and can not be evaded by proof that the debt has never been paid. Even an admission of non-payment in the plea of limitation would not prevent the bar. In this respect it is unlike a plea of payment supported by presumption resulting from mere lapse of time, which may be repelled by proof of acknowledgment. Limitation and not payment being the issue in the indorsement of credit, however else it may operate, is not admissible merely as evidence repelling a presumption of full payment. Nor can it be available as evidence of a new and actionable promise to pay the residue of the bond for two reasons: first, this action is, as it should be, on the bond itself; and second, no action on any such implied promise could be maintained on the facts of this case. As long as the cause of action on the bond was unbarred by time, no oral acknowledgment or promise could operate othei’wise than to countex’vail a presumption of previous satisfaction, or to prolong the statutory limita^tion by cutting off the antecedent time. No such promise made before the bar could absorb or supplant the still subsisting cause of action on the bond, and which therefore is the only proper action.

After an action on a contract shall have beexx barred by limitatioxx, a moral obligation may be a bixxding consideration for a xxew promise and different cause of action, and thexx the suit must be brought on the new promise. This is not that case; consequently, if the indox’sexnent be evidence of pax-tial payment, it can operate only as a suspension of the xmnning of the limitation betweexx the accrual of the cause of action on the bond and the date of that payment, or rather a postponement of the cause of action to the latter date.

The philosophy of a peremptory bar by statutory prescription' results from two considerations: first, from the prescribed lapse of time, nothing else appearing, the law presumes satisfaction or exoneration; and second, the danger of the loss of evidence of extinguishment prudently makes the presumption intraversable and conclusive. But an acknowledgment within the statutory time defeats the presumption up to that time, and breaks a link in the continuous running of the statute; and consequently the antecedent time is not counted in computing the bar; and that elision operates so as to elongate the statute to a correspondent extent, and postpone the cause of action to the date of the acknowledgment, just as the statutory saving by any sort of obstruction would do. The party making the acknowledgment waives past time, and is estopped from pleading it; and therefore the bar is not complete until the required time shall have afterward run without further obstruction or recognition of the cause of action. The presumption of exoneration commences after such recognition; and if there shall be subsequent satisfaction, the posterior time must be long enough to authorize the presumption of it per se and alone. In an action brought before the interlapse of the time required by the statute, satisfaction in the mean time will not be presumed as a deduction of law; and the debtor could not complain of air elongation resulting from his own act.

This philosophy seems consistent with the spirit and aim of the statute of limitations in cases of contract; and this must be the true and only ground, on which it has been often adjudged, that a partial payment of a bond may suspend the operation of the statute.

The adjudications and elementary dicta on the subject of partial payments have generally confounded this class of cases with the other two of a merely presumptive bar, and of a new promise after a statutory bar. A proper discrimination will classify all the cases so as to relieve from much confusion and apparent conflict in the books, and establish the true principle governing this case.

Then is the indorsement in this case competent evidence in the obligee’s favor to show that at its date the amount indorsed was paid, and that the balance then remained unpaid? On this question the authorities are to some extent apparently conflicting. The indorsement may have been fraudulently made after time had barred an action on the bond, and antedated to avoid the statute; and the obligee ought not to be allowed thus to make testimony for himself. Unless therefore it shall in some way appear that the indorsement was made before a bar by limitation, reason and preponderating authority incline against its competency. But if shown to have been made when there was no bar, and consequently when it was against the obligor’s interest to make it, and when he had no selfish motive for fabricating it, both reason and authority admit its competency as evidence of what it imports. Still the more vexed question, whether the payment was only partial and left the balance unpaid, remains rather unsettled, and has never been solved by any express adjudication of this court; and that is now the only question for our consideration. The payment as indorsed being admitted, the prima facie presumption seems to be that the indorsement of the credit was made with the obligor’s privity; and the fact that the obligee still held the bond without any previous indorsement or other evidence, or presumption of any antecedent payment, implied that the bond was entitled to no other than the indorsed credit, and that there was a resulting new cause of action on the bond for the entire residue.

Without citing or analyzing the many adjudged cases in England and America on this subject, we deem it sufficient to say that, in our judgment, they preponderate decidedly in favor of this conclusion, and are moreover fortified by reason and analogy.

The prima facie presumptions herein suggested are not repelled by any circumstance or presumption in this case as presented by the record. There is nothing indicating that the obligor was ignorant of the indorsement or absent when it was made, or that the indorsed credit was a full and not, as it imports, a partial payment, or that it did not leave the entire balance still due. Consequently, as before suggested, the only facts which do appear authorize the presumption that the indorsed credit was the only one to which the obligor was entitled.

And this presumption is fortified by the judgment against the administrator, who represented the person of the deceased obligor. Not only was the indorsement made, before the action was brought against him, about six years after the bond became due, but he neither disputed its genuineness nor claimed any other payment; but, after unavail ably defending on the plea of usury only, obtained a credit in the judgment for the amount indorsed.

The appellants do not assail the judgment as either surreptitious or erroneous, nor do they controvert the fads adjudged, but rely solely on the statute of limitations; and, though not being direct parties to that action, they are not concluded by the judgment; yet it is prima facie evidence against them that it was for no more than was then due.

A careful analysis of the Kentucky authorities sustains this conclusion; and even the case of Richards’s adm’r v. Porter’s heirs and devisees, 6 Mon. 1, etc., most relied on as deciding otherwise, confirms the same conclusion. In that ease the heirs and devisees assailed the judgment against the personal representative as collusive, and proved that the testator had discharged the liability for which the judgment, without defense, had been rendered against his administrator, cum testamento. That proof was resisted on the alleged ground that the judgment was conclusive.

Under those circumstances this court, after citing the case of Ewing’s heirs v. Handley’s ex’rs, 4 Littell, 347, said: “All the defendants ask in this case is that the judgment shall not be conclusive. The onus probandi of proving it unjust because of satisfaction by Porter, the obligor, to the obligee is taken by them;” and thereupon decided that the judgment was not conclusive, and that the evidence of antecedent satisfaction of the demand was admissible.

This whole case necessarily implies that the judgment was evidence, and threw the burden of negative proof on the heirs and devisees, who resisted its correctness. This is essential^ a weaker case than that. In this the administrator faithfully argued and resisted the' judgment, and the appellants neither prove nor allege payment, nor question the judgment itself for any cause, but tacitly admit that it adjudged the truth; and they fix the whole issue on limitation as to themselves.

Then, a fortiori, that judgment is at least prima facie evidence against them of the non-payment of more of the bond than the amount of the indorsed credit. And consequently, as there is no presumption or pretense of a larger payment, and there is no bar by limitation, the judgment of the circuit court in this case is affirmed.

JUDGE HARDIN

delivered the following as ms dissenting opinion:

Through the deference which is due from me to the other members of this court, I interpose my dissent from their opinion in this case with reluctance, and would only suggest the fact that I do so without expressing the reasons of my non-concurrence in said opinion, if I did not regard the principal points on which I differ with the majority of the court of vital importance in the application of the statute of limitations as a legal defense.

The distinction taken by the court between the re-acknowledgment of an obligation, as preserving or extending a subsisting liability, so as to make the statute begin to run from the date of such acknowledgment only instead of that of the original contract, and a new promise after a statutory bar has occurred, founded on the original consideration, seems to me to be correct. And as the indorsement of credit on the note for twenty-three dollars, from which the plaintiff sought to deduce a re-acknowledgment of the debt, appears to have been made before the statutory bar had become complete, if I regarded that fact as equivalent to an express admission of a liability for the residue of the original debt, I would concur in the conclusion that the action was properly brought, and that the judgment was sustained; although such evidence would have been insufficient to prove a new promise, which could be enforced as the foundation of an action. The true ground of this distinction is that an obligor, by re - acknowledging the written contract by which he is already bound, virtually contracts again in the language of the writing, as if its stipulations were then made or the writing then delivered; while in the case of a new promise, founded merely on the consideration of a contract which has ceased to be obligatory, the evidence must not only show a recognition of the old liability, but prove the terms of a new agreement.

But the essential inquiry is, does the mere indorsement by the payee of a promissory note of a credit thereon, made before the debt is barred by limitation, unaided by any other explanatory evidence, import an acknowledgment of the debt so unambiguous, direct, and certain as to authorize the judicial conclusion not only that the partial payment was made by the obligor, but that in doing so he recognized and intended to admit his liability to pay the remainder of the original demand? I maintain that it does not, and with the concession too that the indorsement, though made by the payee, is not wholly incompetent evidence, if made, as in this case, without any apparent motive for fabricating it. As a credit so indorsed is for the benefit of the obligor, and apparently against the interest of the payee, it may be regarded as prima facie evidence of the partial payment it purports to prove.

But to go further, and assume from the fact thus presumptively shown that the obligor in making the payment meant thereby to admit that the balance of the debt remained due and unpaid, is in my opinion an unauthorized deduction from the fact — a conclusion not sustained by any authority which this court has heretofore recognized, and a dangerous precedent.

In the argument of this case, as well as in the opinion of the majority of the court, reference is made to the decisions of the English courts on this subject. But as early as the case of Bell v. Howland’s administrator, Hardin, 301, this court dissented from the then current of those decisions, holding that many of them had gone to unwarrantable lengths in evading the statute, and that some of them amounted to a total disregard of its provisions. The court said: These decisions of the English courts being only their construction of their own statute, we are free to declare we do not consider them as obligatory upon us in giving a construction to our statute, although similar in its provisions to' theirs ; and that, so far as they have gone upon nice refinements for the purpose of evading the statute, they must be disregarded.” Subsequently the English courts themselves reviewed and condemned their former adjudications upon their statute of limitations A’Court v. Cross, 3 Bingham, 329); and in 1828 the British Parliament, as if to effectually correct an erroneous current of adjudication, enacted that “no indorsement or memorandum of any payment, written or made upon any promissory note, hill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the said statutes.” (Angell on Limitation, 259.)

In this country the precise legal effect of a partial payment of a demand, with reference to the obligor’s liability for the residue, is not distinctly defined; but I do not think the authorities go further than to recognize it as competent evidence of a subsisting debt, to be considered with other circumstances conducing to prove an explicit acknowledgment of the debt. It is difficult to perceive how more can he certainly inferred from it than that the sum paid was owing upon the debt. Admitting that it is so far conclusive, argument or illustration can scarcely be necessary to prove that it is not tantamount to an express acknowledgment of the residue of the demand; for a debtor might, in a variety of cases, pay a given sum without intending to admit an indebtedness for more, and notwithstanding the written evidence of his original agreement, as in the case of a partial failure of consideration, or a previous payment, or discharge of part of the debt by a set-off or counter-claim. In many such cases payment may be made and accepted of a mere fraction of the original demand, and yet in satisfaction of all that is due upon it.

But deducing from the partial payment, which is itself only presumptively established in this case, the strongest inference which it can reasonably authorize as to a subsisting liability beyond it, it is still but an inference by no means determinate or certain. This court, in the case of Harrison v. Hundley, 1 Bibb, 443, referring to the case of Bell v. Rowland’s administrator, supra, said: “The rule laid down in that opinion (drafted by Judge Trimble, then upon the bench) is clear and explicit, and seems to be at least as favorable to the creditor as any one which can be adopted to guard against the mischief the statute intended to remedy, and yet leave the party to pursue his original cause of action, sdepending on the original consideration. An express promise to pay, or an express acknowledgment of the debt, as a debt due at that time, coupled with the original consideration, must have been made within the time limited by the statute for bringing the action.”

Not only have these early decisions been consistently adhered to in more recent cases in this court, but the Supreme Court of the United States, in the case of Bell v. Morrison et al., prosecuted by a writ of error to the circuit court of the district of Kentucky (1 Peters, 351), held, in conformity with the established doctrine in this state, that “if there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay.” And after an elaborate and analytical review of the cases we have cited, and numerous other Kentucky decisions, that court said, “they evince a strong disposition in the courts of that state to restrict within very close limits every attempt to revive debts by implied promises resulting from acknowledgments and other confessions by parol.”

An examination of the cases referred to shows that they differ from this in one essential particular, and in that they rest on grounds far more favorable to the creditor than the present case. In those cases the fact of acknowledgment was in some form directly proved, and not merely inferred from circumstantial evidence. In this case the assumed acknowledgment can only be presumed from the partial payment, which is itself but an inference of fact wholly dependent on secondary evidence; yet if the judgment be sustained, the presumption thus based on a presumption must have the verity of a fact unequivocally and expressly proved.

But I regard the indorsement on the note, which is the foundation of this whole presumptive structure, though competent, as insufficient to invest the assumed fact of payment with the force of conclusive proof.

Neither made by the obligor, nor shown to have been made at his request, the indorsement is only presumed to have been made, in consequence of a corresponding payment, and with the obligor’s privity; because, in the absence of any apparent motive for making it falsely, it seems at the time to have only been beneficial to him and not the obligee. But only on this supposition is the inference authorized. Upon others a contrary presumption may be indulged. The fact that the indorsement is now relied on as beneficial to the appellee proves that he may have had good reasons for so regarding it when he made it.' And it is not a far-fetched or unreasonable supposition that in many instances the holder of a note about to become barred by limitation would be interested in fabricating a credit upon it, if that act would operate to renew the debt, and postpone the statutory bar until witnesses might die, or circumstances change which then rendered it inexpedient to sue.

Testing said indorsement therefore by the principles of law applicable to the case, I can not concur in the conclusion that a re-acknowledgment of the debt is thereby sufficiently proved to take the case out of the operation of the-statute of limitations. It is said that the alleged effect of the credit on the note was not denied by the appellants, but it appears to be sufficiently controverted by an amended answer, filed April 25,1867.

In the opinion of the majoiity of the court, the judgment against the administrator of John Hopkins, deceased, is. held to be prima facie evidence against the appellants “that it was for no more than was then due.” From this conclusion I also dissent. The asserted right of recovery against the appellants as the heirs of John Hopkins did not rest on any responsibility incurred by them as distributees of any estate which came to the administrator’s hands. But the plaintiffs sought to recover against them on the original cause of action against their ancestor, because of estate descended to them, as to which the administrator never was a fiduciary or trustee. No privity therefore ever existed between the administrator and the appellants respecting the alleged grounds of recovery in this case. What might have been the effect of the judgment upon the rights of the heirs, if it were shown that they received any estate through the hands of the administrator, is an ulterior question, not essentially important in this case; but I concede that in such a case the judgment would be at least prima facie evidence against the distributees. Such is, I think, a fair deduction from the cases of Richards’s adm’r v. Porter’s heirs, 6 Mon. 1, and Ewing’s heirs v. Handley’s ex’rs, 4 Littell, 347, referred to in the opinion of the court.

But these cases not only recognize the well-established doctrine that a judgment is not evidence against persons who were not parties nor privies to it (Owings v. Beall, 3 Litt. 104; Clark v. Rodman, 5 J. J. Mar. 81; Banks, &c. v. Sharp, &c., 6 J. J. Mar. 180; Hume v. Langsden, &c., ibid. 255), but they seem to me authoritative of the point that in a suit against the heir, to whom estate has only come by descent or devise from the ancestor, a judgment against the personal representative on the same original cause of action is not evidence for any purpose. In Richard’s adm’r v. Porter’s heirs, 6 Monroe, supra, the case of Mason’s devisees v. Porter’s adm’rs, 1 Munford, 437, is referred to and approved; and in that case it was expressly held that a judgment “against the executors only is no proof against the devisees of land.”

I am of the opinion therefore that the judgment is erroneous, and should be reversed.  