Johnson v. . Albany Susquehanna R.R. Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 418 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 419 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 422 It is conceded by the plaintiff's complaint, and found by the findings of the judge, that four installments due on the subscription of Edgerton for the stock in question were never infact paid; but the learned judge who tried the issues at Special Term holds, in his opinion as reported (40 How. Pr. Rep., 193), that the judgment rendered in the action to recover those installments, and the last one that was payable, "decides, beyond the right of dispute, that Edgerton owed the company at that time on his whole subscription only the amount of the recovery," which was for the sum due on the last installment; and that when "he paid the execution," issued on the judgment, "he paid the company all that he owed on his stock subscription." Notwithstanding the opinion of that learned jurist, so positively expressed, I nevertheless must, and do, dispute the proposition stated by him in reference to the effect of that judgment. Although several grounds of defence were set up against the right of the company to recover in that action, it is admitted that the only defence which was successful was that of the statute of limitations to the four installments referred to. It is, however, claimed and asserted in that opinion, that it is of no consequence whether Edgerton's defence was payment, or setoff, or the statute of limitations, and that it is enough that the judgment decided that he entered into the contract and established the amount remaining due upon it. The fallacy of that position is in assuming that the judgment decided and determined that the sum recovered was all that remained due on the subscription to the stock, and that all the installments — payable previous to that for which the recovery was had — were actually paid; thus giving the same effect to the statute of limitations as if payment had, instead thereof, been interposed as a defence. This is not sound or tenable. The complaint, as I have already stated, conceded that the four *Page 423 installments referred to had not been paid when the action to recover them and the last one called for was commenced; and it states that the action was defended by Edgerton "on the ground, among others, of the statute of limitations; that is to say, that more than six years had elapsed since said calls were made, that such defence was held good as to four of said calls, and not as to the fifth and last call for $200." This statement truly and fully sets forth and explains the nature and character of the defence. There was no claim that the installments had in fact been paid or in any manner satisfied. It, in effect, admits the contrary, and only alleges that although the claims and demands for which the action was brought were unpaid and unsatisfied, yet, inasmuch as they accrued more than six years before its commencement, a recovery thereof could not be enforced, by reason of the statute requiring such claims and demands to be sued for within six years after the right to do it arose. Indeed, the judge, in his findings of fact, finds affirmatively "that neither the said John Edgerton, nor any one, ever actually paid any further or other sum, upon or by reason of his subscription or stock, than the sum paid at the time of such subscription, and the second, third, fourth and fifth installments, paid before the commencement of the action, and the amount collected on the judgment recovered against him therein; and he also found that on the trial thereof, on said Edgerton's motion, the court ruled and decided that the sixth, seventh, eighth and ninth installments of $200 each, and interest, did not, nor did either of them nor any part thereof accrue to the plaintiff in said action (this defendant) within six years next before the commencement of said action, and the plaintiff therein (this defendant) had a verdict therein for the tenth installment only, and interest thereon, amounting to $320.45; and afterward, on the 9th day of December, 1873, judgment was duly entered and perfected in said action for $320.45 damages, and $141.86 costs;" and the judgment roll, to which the judge referred in his findings, shows that it was adjudged by the court that the said plaintiff recover *Page 424 of the said Edgerton the said damages and costs, amounting, in all, to $462.31, and that no other adjudication was made thereby. It is evident from what has been said that the judge did not, at Special Term, find or intend to find that the whole of the subscription price was actually paid; and it is well settled that the statute of limitation acts on the remedy merely, not upon the debt, and, therefore, does not impair the obligation of the contract. (See Waltemire v. Westover, 4 Kern., 16, and cases therein cited.) It was said by SELDEN, J., in that case, that this distinction is "virtually included in the doctrine universally received and acted upon, that where there is a new promise to pay a debt barred by the statute of limitations, it is not necessary to count upon this as a new contract, but the action may be brought upon the original obligation," adding that "this practice can only be sustained upon the ground that the debt is not discharged, and that the operation of the statute upon the remedy being removed by the new promise, the parties are left in statu quo." He also says that the statute "does not operate, according to the recent cases, by producing any presumption of payment, but is a mere statutory bar, founded in principles of public policy," and it was, on the application of that principle, held that a statute, which provided that all actions upon justices' judgments should be commenced within six years after the cause of action accrued, did not annihilate the lien of such judgment, duly docketed, at the end of six years, and that a purchaser at a sale of real estate after the lapse of that time, but within ten years, under an execution issued thereon, acquired thereby the title of the judgment debtor. It follows from these views that the judgment in the action by the defendant against Edgerton, although conclusive against its right to recover and collect anything more by action of Edgerton on his subscription, does not establish or show that the whole of it is paid or extinguished, and has no effect or operation whatever on that question. The case, therefore, stands upon the admission in the complaint, and the finding *Page 425 of the judge, that four installments called for, and due and payable, have never been paid. The payment of those was necessary to entitle the plaintiff to the certificate for the stock in question. It was decided in the case of Morey v. The Farmers'Loan and Trust Company (4 Kernan, 302), that the presumption of payment, arising from the lapse of twenty years after the making of a contract for the sale of land, was not sufficient proof of payment to entitle the purchaser to a decree for specific performance of the agreement, but that the party seeking such relief must show affirmatively that he has performed the contract by actual payment of the purchase money, and it was said that such a presumption was designed simply as a defensive weapon and as a shield against attack, and that no case could be found in this State which countenances the doctrine that a party in a court of equity may avail himself of it for affirmative action. The same principle was recognized and asserted in Lawrence v.Ball (4 Kernan, 477). The General Term, on the authority of those cases, as well as on the nature and character of the defence of the statute of limitations, properly held that the court at Special Term erred in deciding that Edgerton, by reason of the payments actually made by him, as above stated, and by the recovery of the same judgment against him and its collection, became the owner of the stock in question, and entitled to a certificate therefor. This conclusion renders it unnecessary to consider the question as to the validity and effect of the proceedings taken for the forfeiture of said stock. The order of the General Term reversing the judgment on that decision and ordering a new trial must, on the ground stated, be affirmed, and judgment absolute must be rendered against the plaintiff in pursuance of his stipulation or assent to that effect, with costs, payable to the defendant in both courts.